The Fast-Track Approvals Bill (Bill) was introduced into the house yesterday, just within the 100-day commitment.

The Bill is ambitious in its intent. It builds on the previous government’s Covid-19 Fast-track consenting regime by creating a “one-stop-shop” for consents and other regulatory approvals for projects. Selection of a project into the regime is by Parliament or Ministerial referral. 

In this legal update, we take an initial look at the Bill. We will provide further detailed analysis in the coming weeks.

The problem

The cost and delays associated with consenting large projects in New Zealand are well documented. 

There are several reasons for those delays. In addition to the submission and appeal rights available under the Resource Management Act 1991, large projects often require a suite of other regulatory approvals. Each approval carries its own appeal rights or judicial review risk. For an unlucky project, that can mean that the proponent will face a long period of rolling litigation before it can get shovels in the ground. The cost escalation and holding costs for each missed earthworks season can be enormous.

The coalition government’s solution

One-stop-shop

Rather than reform each of the regulatory regimes comprehensively (which is a task that could never be completed within a 100-day timeframe) the Government has created a standalone bill that pulls those regimes into a single process, a “one-stop-shop”. Projects that qualify can have a significant number of separate approvals considered by a single expert panel through a new bespoke, and streamlined, process. 

The intention is that it provides considerable efficiency for applicants, through compressing the statutory approvals into a single process; and also reducing the number of decisions that can be challenged in the courts.

There is a comprehensive list of approvals that can be subject to the “one-stop-shop”. They include purely regulatory approvals such as authorisations under the Wildlife Act 1953, authorities under the Heritage New Zealand Pouhere Taonga Act 2014 and aquaculture decisions under the Fisheries Act 1996. They also include access permissions under the Reserves Act 1977, Crown Minerals Act 1991 and the Conservation Act 1987. 

The Bill’s purpose focuses on “the delivery of infrastructure and development projects with significant regional or national benefits”. The Bill’s purpose is to be given greater weight in decisions made under the regime. 

The coalition Government’s intention to cut red tape, in order to speed things up, is abundantly clear. The Bill’s approach is likely to be criticised on the basis that decisions made under the regime could lead to worse environmental outcomes (however, the dominant economic objective appears to make the shift away from the RMA’s more nuanced purpose a deliberate one).

Ministerial approval 

Another aspect of likely controversy is the level of control given to Ministers. 

Entry of a project into the regime is via inclusion in Schedule 2A to the Bill (ie by Parliament), or by Ministerial referral. Schedule 2A is currently blank but will be populated through the Parliamentary process, and there has been recent public talk of a long list of projects being considered. An independent advisory group will be appointed shortly to advise Ministers as to which projects should be included in Schedule 2A of the Bill. 

There will also be a second schedule, Schedule 2B, which will contain projects deemed to be regionally and nationally significant that will go through the Ministerial referral process. 

Once in the regime, the projects are referred to expert panels that have the task of making substantive recommendations about the projects, including appropriate conditions (where necessary), within six months. 

The final decision to grant or decline the approvals and consents sits with the Ministers after considering the panel’s recommendations.  Ministers can also ask the panel to reconsider any recommendations, commission additional advice or seek further comments from affected parties.

The Ministers are the Ministers of/for Infrastructure, Regional Development and Transport. The Minister of Conservation is included if a Wildlife Act approval is needed.

In practical terms, what that means is that politicians are in control of whether or not a project will gain the necessary approvals instead of the regulatory bodies, and all too often, the courts (with their decisions informed by the expert panels).  

Opponents to the Bill will say that the regime confers too much power on the executive branch of Government. Supporters may say in response that, for projects of regional and national importance, politicians are best placed to decide whether or not they should proceed instead of the courts. Politicians will be answerable at the ballot box for their choice of projects. 

Either way, project applicants who are within the regime will enjoy certainty about the timing for receiving decisions on the suite of regulatory approvals through the “one-stop-shop” process. 

Submission and appeal rights are predictably constrained. Submission rights are limited to affected property owners, mana whenua, local authorities and other relevant regulatory bodies. Appeals are restricted to questions of law, but the Bill does not limit the right of judicial review.

Fish hooks?

The success of the regime will likely depend on how it is used. Some of the problems from the COVID-19 Fast-track can be avoided.

For example, a ‘fast- track’ will not be fast at all if there are too many projects in the regime at any one time. There were a very large number of projects in the COVID regime and finding appropriate persons to sit on, or chair, panels continues to be problematic. 

Selection into the regime will need to be carefully managed. Projects will also need to be sufficiently advanced to be ready to make their consent and other applications without delay. 

Judicial review risk is a live issue for the referral process. 

The expert panel process will also be able to benefit from the lessons learned from the COVID Fast-track experience. The panel process will need to contain enough flexibility to enable applicants, submitters and the panel to work through large amounts of complicated information efficiently and effectively. The six month time-limit for that process could prove to be too restrictive and applicants may well find themselves needing to request additional time. The process should allow for innovative approaches to managing environmental effects and setting conditions to be explored and adopted (if appropriate). Considering the full suite of regulatory approvals through a single process, with an overriding purpose, should allow greater scope for innovative solutions. 

Next steps

There are two key opportunities:

1. Schedule 2A is currently blank. There is an opportunity for proponents of projects that might qualify to take steps towards being included in the Schedule; and
2. Any potential users of the regime, or persons who may be affected by it, should take the opportunity to make a submission to Select Committee.

Get in touch

If you have a project you would like to have considered or to engage with the Parliamentary process and require any assistance in doing so, please call any of the authors of this update.