If you missed out on having a project listed in the Fast-track Approvals Act 2024 (Act), or you didn’t apply, you can still use the fast-track process as long as you can demonstrate your project will bring ‘significant regional or national benefits’.

There are two pathways to use the Act to fast track a project: the first is to be a listed project in Schedule 2, the second is applying to be a ‘referred project’.

This article focuses on the latter and discusses the advantages and disadvantages of seeking to use the Act in this context.

The Fast-track Approvals Act 2024 (Act) became law at the end of last year, and those who have projects listed in Schedule 2 are now able to lodge their ‘substantive’ applications for approvals under the Resource Management Act 1991 (RMA) alongside a range of Crown approvals under other legislation, such as Wildlife Act approvals, mining permits, concessions and land-exchanges, archaeological authorities, among others.

Applicants can now apply to the Ministry for the Environment to have their projects fast-tracked. If successful, they are entitled to lodge a ‘substantive’ application which will be allocated an Independent Panel to consider the proposal and make a decision.

There may be significant benefits to using the legislation in favour of a traditional resource consent process under the RMA:

1. Hierarchical weighing exercise: When making decisions to approve or decline a substantive application, and when setting conditions, Panels are required to give greatest weight to the purpose of the Act, essentially the regional or national benefits of the project. Panels do not have to apply the tests under the originating legislation, such as the RMA for resource consent applications; rather these tests must be considered and weighed against the purpose of the Act. This potentially makes projects that could be considered contrary to a National Policy Statement, Regional Policy Statement, Regional Plan or District Plan easier to consent. Similarly, it may make obtaining other necessary Crown approvals for a project easier to obtain.
2. No Prohibited or Non-complying activities: The requirements of s104D of the RMA for non-complying activities do not apply under the Act. This means that an application does not have to pass the additional ‘gateway test’ and demonstrate its effects are “no more than minor” or that it is not contrary to the objectives and policies in the relevant plans. Applicants are also able to apply for consent for prohibited activities, which they are unable to do under the RMA. Again, this potentially makes “difficult” consents easier to obtain, as well as projects that would require a private plan change under the RMA as they couldn’t pass either of the s104D gateway tests.
3. The threshold for declining an application for all approvals sought under the Act is high: A Panel needs to identify an adverse effect that cannot be managed, offset or compensated, that is out of proportion to the benefits of the project before it can decline an approval. In addition, if a Panel is minded to decline a project it must first provide the applicant with a copy of its draft decision and invite it to propose alternative conditions or amend the proposal. This is a significant benefit for an applicant that removes a huge amount of risk from consenting.
4. Limited public participation and no presumption of a hearing: The Act does not follow the notification and submission process in the RMA. Instead, the Panel will invite “written comments” from certain groups and people including relevant local authorities, iwi authorities, and the owners and occupiers of the land adjacent to the application site. There is a limited timeframe for these entities to provide comments. An applicant has the opportunity to respond to comments. A hearing is not required, but the Panel can hold one if it chooses to.
5. Tight timeframes for Panels to consider and make decisions on applications: While not every step under the Act has timeframes (for example there is no timeframe for setting up a Panel) there are tight timeframes for invited persons to provide comments on an application (20 working days), and for the Panel to make its decision. The default time period for a panel to make a decision is 30 working days after receiving comments, but the Panel convenor can set a different timeframe for each application. We expect that bespoke timeframes will be set for all but the very simplest applications. Any bespoke timeframes will be comparatively fast and proportionate to the size and complexity of the application.
6. “Urgent” projects can apply for priority: The Act creates a ‘priority’ category, allowing urgent projects to skip the queue and be allocated a Panel before other projects regardless of when it is lodged. This will be a significant benefit for priority projects as the greatest delay is expected to be in waiting for a Panel. A project must be confirmed as a priority before a substantive application is lodged, either on application or on the Minister’s initiative.
7. Ability to combine all resource consent applications and approvals under different Acts into a single decision-making process: An applicant can apply for all approvals for a project across a variety of acts including the RMA, Heritage New Zealand Pouhere Taonga Act 2014, Conservation Act 1987, Reserves Act 1977, Wildlife Act 1953, National Parks Act 1980, Crown Minerals Act 1991, Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 and the Public Works Act 1981. While the upfront work to put together applications covering all activities would be considerable, there is potential for significant time saving and risk mitigation for some applicants by ensuring that everything will be approved together. Considering the suite of approvals together should result in approvals that are consistent and coherent with each other, and avoid unnecessary duplication of conditions across different approvals. While separate decisions need to be issued for each type of approval, that is an issue for the Panel rather than the applicant.
8. Ability to stage projects: The referral application can identify stages for a project, and multiple substantive applications can be lodged sequentially, provided that each stage meets the regional or national benefit test. This may be particularly useful for large housing projects and large infrastructure projects, and is a benefit that is not currently afforded to listed projects.
9. Reduced appeal rights: The RMA for example allows any submitter on a resource consent application to appeal a decision to the Environment Court, and allows any person to join that appeal who has ‘an interest greater than the public generally’. Environment Court appeals are “de novo”, which means that the full decision-making process is repeated in the Environment Court. Under the Act, the right to appeal a decision of a Panel is limited to the High Court on a point of law, and to the applicant, a relevant council, the Attorney General, or any person or group that provided comments in response to an invitation given under the Act. This is expected to significantly reduce the risk of appeal (with time and cost savings for an applicant). Judicial review risk remains, however.

Potential disadvantages

The legislation will not be suitable for all projects. Aside from the requirement to demonstrate the ‘significant regional or national benefits’ test to be successfully referred to a Panel for fast-tracking, an applicant will want to carefully weigh up the potential benefits and costs of using the legislation versus traditional consenting under the RMA and approval processes under the other legislation covered by the Act:

1. More straightforward consents with a low risk of being declined (even large projects) may be better to use traditional RMA consenting. This is because there is still uncertainty over the timeframe for setting up Panels to consider projects, and with a large number of projects likely to be lodged in the coming weeks and months, waiting to be allocated a Panel could result in a significant delay. A ‘priority status’ for projects that need to be processed urgently is available and will allow some projects to ‘skip the queue’ and be allocated a Panel first but this will not be available to most projects.
2. The extent of upfront work (costs) that will be required to put together such large and detailed applications. This work would generally be staged across several years but will need to be undertaken before a substantive application is lodged.
3. The benefits of consenting a large project in one application are dependent on an applicant knowing a detailed level of design for their project. This may not be available, or design may be a moving feast. Once resource consent is granted under the Act, an applicant can seek a variation under section 127 of the RMA if and when detailed design changes. There are limits on what changes are a true variation and what constitutes a fresh consent, but careful crafting of an application under the Act could allow applicants to maintain future flexibility in the design of their project.
4. Applications to vary consents granted under the Act are processed by the relevant local authority. These can sometimes be difficult for local authorities to process given the underlying zone may not anticipate the project.
5. The Fast-track process is likely to be expensive. The initial levy and deposit for a substantive application is $390,000 (plus GST). For large applications, we anticipate that the processing costs could easily exceed that figure. That said, the process may ultimately lead to cost savings for the right projects due to a shortened processing time, limited appeal rights, and potentially less restrictive consent conditions. For example, for large projects, the cost of losing a construction season could far exceed the difference in costs between a Fast-track application and a standard consent process. In addition, lodging an application for a referral is less than $20,000, which for large projects may be worth the gamble.

Get in touch

Please contact one of our team if you would like to discuss the process in greater detail and whether it may be suitable for your project.