Key features of the Act 

After a fairly eventful journey through the House, the Fast Track Approvals Act 2024 (FTA Act) had its final reading and was enacted on 17 December 2024.

A number of changes were recommended at the Select Committee stage, which we covered in detail here. One notable difference is the Minister will be able to identify ‘priority projects’ which take priority over other projects when panels are being appointed.  

The key features of the Act include that:

• It creates a streamlined and ‘one stop shop’ consenting process for gaining approvals under the Resource Management Act (RMA) and related legislation.
• Schedule 2 lists 149 projects for which a substantive consent application can be made directly to the Environmental Protection Authority (EPA).  These ‘listed projects’ include a range of infrastructure (43), housing and land development (58), renewable energy (22) and mining (11) projects.   
• Other projects may make a referral application to the EPA, which will then provide it to the Minister for Infrastructure if it is complete and within the scope of the FTA Act.  Referred projects must have significant regional or national benefits.  The Minister will also consider whether referring the project will facilitate its development, and whether its referral would materially affect the operation of the fast track approvals process as a whole. 
• Applications for referral can be made from 7 February 2025.  A wide range of projects are potentially eligible for referral.  Currently offshore renewable energy projects, offshore petroleum decommissioning activities, or activities relating to certain kinds of Māori land without approval are not eligible for referral (although the exclusion of offshore renewable energy is likely to be removed when the Offshore Renewable Energy Bill is passed). 
• Substantive applications will broadly require the same level of information and environmental assessments as would ordinarily be required under the RMA.  
• Applications will not be publicly notified and there will be no right to lodge a submission, although affected persons, iwi, and relevant ministers and government departments will be invited to ‘comment’ on the application.
• There is no requirement to hold a hearing (although an expert panel may choose to do so).
• In making its decision, an expert panel is required to give more weight to the development-focused purpose of the FTA Act than to considerations under other relevant legislation.  The panel only has the discretion to decline the application if it forms the view that the adverse impacts of a project “are sufficiently significant to outweigh the purpose of the Act”.
• The process is subject to tight timeframes. Decisions must be made within 30 working days of receiving comments from those invited to provide comments (unless the panel convener specifies another time period).
• Appeals are limited to points of law and may be made by the applicant, relevant local authority, Attorney-General, persons with an interest greater than the public generally, and those who provided written comments.

Given these settings and advantages, we expect there will continue to be significant interest in using the new fast track process for projects over a certain size.  Almost 400 projects applied to be listed in Schedule 2.  For some smaller projects there may be uncertainty about meeting the significance threshold, or some trepidation about the processing fees (which are anticipated to be nearly $400,000).

This article takes a closer look at the potential for a log-jam of projects and the implications for processing timeframes. It also looks at the key considerations when opting to use the fast-track process, as well as providing tips for streamlining the standard RMA consenting process if the FTA is not a viable option.

Logistics – will there be capacity to process all the projects?

A total of 384 projects applied to be included in the Act, and 149 made the list. In comparison, the COVID Fast Track legislation only listed 17 projects and processed roughly 120 projects in total, over four years.

The Fast Track Advisory Group considered that 342 of the 384 projects applied for were capable of providing significant regional or national benefits (about 190 more than what was ultimately listed).  One of the main reasons cited by Cabinet for ‘thinning the herd’ was a concern about the capacity of the system to process so many applications.  A number of the projects which ‘missed out’ on getting listed could well be the subject of referral applications in the near future.

We expect that the listed projects will be in different stages of development, and not all applicants will wish to progress to the substantive approval stage immediately (i.e. some may simply have wished to secure a spot on the list when the opportunity presented itself).  Nonetheless, we expect that the listed projects and any successfully referred projects will in combination create demands on resourcing the new process that are significantly greater than under previous fast track processes.

It is unclear how resourcing pressures will be managed, except for a requirement to set up panels for ‘priority projects’ first.  In the absence of any contrary direction in the Act for non-priority projects, it appears that a ‘first in first served’ approach will apply to both referral decisions and the processing of substantive applications, which could incentivise something of a ‘gold rush’.

Even for those projects which are listed and have priority, the capacity of the system to process applications in a timely manner is likely to be an issue if not addressed (and was noted as a key risk by the Advisory Group).  Expert panels will each be made up of three to four practitioners, such as lawyers, planners and engineers.  A list of 149 projects implies a need for around 450 panel members (if three members per panel, and unless some sit on multiple panels).   Sourcing panel members has been challenging under the existing COVID fast track process (although better renumeration for panel members under the FTA Act may somewhat assist in attracting practitioners to assume the role).

These factors could all affect, and potentially undermine, how swift the fast track approvals process will be in practice. While many of the steps in the process will be subject to statutory timeframes (as outlined below), other steps are not. Notably there are no timeframes for the Ministerial decision on referral applications, which has taken up to six months under the previous COVID Fast Track regime.

Will the FTA Act speed up consenting?

The Act comes with big promises of speeding up consenting, and at least on paper, it is considerably faster than the standard RMA process (subject to the issues outlined above).

The FTA Act’s timeframes are similar to those under the COVID Fast Track legislation, particularly now that the expert panels will be making the final decision (not Ministers).  For both listed and referred projects, the key steps that have prescribed timeframes are:

• The EPA must provide the application to the panel (if it meets certain requirements) within 15 working days of receiving it;
• The panel must invite written comments within 10 working days of the panel being appointed;
• Written comments must be received within 20 working days of the panel’s invitation;
• The panel must make its decision within the timeframe specified by the panel convener or, if no time is set, within a default timeframe of 30 working days after receiving comments (i.e. 75 working days (15 weeks) after the applicant lodges its application);
• Appeals against the panel’s decision (which are limited to points of law) must be lodged within 20 working days of the decision. 

The main difference between the FTA Act and COVID Fast Track timeframes is that the Act will provide more time for comments to be received at the referral and panel stages (20 days vs 10 days under the COVID version).

Assuming the statutory timeframes under RMA are complied with, a resource consent application should be processed in 4 weeks (for a non-notified consent with no hearing) or 29 weeks (if it was publicly notified and a hearing was held).  The reality is that these timeframes are not normally complied with and notified applications can take as long as 6 to 12 months. Decisions on notified consent applications may also be appealed to the Environment Court. Environment Court appeals normally take a further year or so to resolve. 

In summary, the FTA process is likely to be quicker than a standard notified RMA process by roughly 10 weeks assuming that the timeframes under the RMA are complied with, there are no periods where the application is put on hold and there are no appeals to the Environment Court. The reality is that the RMA process almost never proceeds that quickly in practice, with council hearings usually taking 8-12 months and Environment Court appeals taking another year.

The FTA Act process will be significantly faster than a standard RMA process because the expert panel has a very short default timeframe to make its decision (30 days) unless the convenor specifies a different timeframe, and there is no requirement to hold a hearing. There is also less time for notification and comments by parties under the Act compared to the RMA process.  Importantly, the FTA Act also offers much greater certainty of outcome, due to the weight given to the benefits of the project and the absence of Environment Court appeals.

While in theory the timeframes under the RMA could be similar if there are no hearings or the project is not notified, that is unlikely to be a realistic scenario for the kinds of projects that have been listed or are likely to be referred to the fast track process.

Notably, under the Resource Management (Consenting and Other System Changes) Amendment Bill, the RMA is also proposed to be changed to: 

• Require resource consents for renewable energy generation, electricity distribution and transmission projects and wood processing activities to be decided within 1 year (for the first-instance council decision).  As these types of projects tend to be fairly complex, the 1 year limit will be likely to significantly speed things up.
• Restrict a consent authority from holding a hearing on a resource consent if it determines it has sufficient information to decide the application. This will also speed things up in some cases but may not occur often (if at all) for nationally or regionally significant projects due to their complexity.

Timing for referred projects

The FTA process is also likely to be much faster than the standard RMA process for referred projects, particularly for the kinds of projects that are likely to make use of it.

Once referred, applications can be processed at the same speed as listed projects (assuming the applicant is ready to lodge their substantive application immediately after referral).  The major uncertainty is how long it will take for projects to go through the referral process given there is no statutory timeframe for a referral decision to be made by the Minister, and whether the Minister delays the referral decision in order to avoid a log-jam (i.e. so the referral does not affect the efficient operation of the FTA process).  As noted above, referral has taken up to six months under the COVID legislation.

Applicants for referred projects will also have to essentially apply twice – once to be referred and once to be approved by the expert panel.  However, on average the overall process would still be faster than applying for the same project under the RMA – and almost definitely faster than a scenario where an RMA application is appealed.   

Comparison of fast track timing with ‘on-paper’ RMA scenarios

The chart below shows how the issues identified above may affect the timeframes of the FTA process. The timeframes are just the statutory timeframes (except for steps which there are no statutory timeframes for) which, based on our experience, vary a lot in practice. Nationally and regionally significant projects are also very likely to get appealed, but we have not factored in the additional time required if the project is appealed.

We have assumed that the referral process takes 4 months for referred projects.  That timeframe is consistent with the EPA’s advice to generally allow 3-4 months for referral decisions under the COVID Fast Track process.

We have also assumed that a turnaround time of 3 weeks would be needed for applicants to lodge their substantive application once the project had been referred (as it may be necessary to update the substantive application after the referral process).

The timeframes shown above suggest that the referral step may mean that FTA referred projects take longer overall (by about a month) than the statutory timeframes for the RMA process for notified resource consents that go to hearing, again depending on how long referral takes.   However, that advantage is unlikely to bear out in practice. The most significant, complex, and/or controversial projects that are eligible for the Fast Track process would not be processed within the statutory timeframes set out in the RMA, and Environment Court appeals should be assumed more likely than not. That said, there may be a small class of projects that would be eligible for Fast Track but uncontroversial enough to avoid appeals, for which the standard track RMA process could conceivably be faster. Theoretically properly resourced councils could process applications in similar timeframes to those set out in the Fast Track process.

Making the most of Fast Track (if listed or referred)

While in many respects the fast track process (if successfully listed or referred) carries less ‘consenting risk’ than the RMA process, it is still important for applicants to put their best foot forward.   To get the most out of the Fast Track process, we recommend that applicants focus on:

• Preparing a high-quality assessment of environmental effects and draft conditions.  There is only one chance to get the application right, and the technical information required to support the project is no less than under the RMA.  The contracted timeframes once the process begins means little time to fill any ‘gaps’, and any uncertainty in the assessment of effects is likely to lead to more onerous conditions being imposed.
• Ensuring that relevant technical experts are able to respond under extremely tight timeframes to issues raised by the council, stakeholders and other members of the public invited to comment on the application.  Expert conferencing may also be required.
• Providing a full and robust analysis of the benefits of the project, which are given the most weight in the assessment hierarchy.  A project’s benefits could take on particular importance if there are material effects that are unable to be completely managed through conditions, given the way in which the discretion to decline a project is now framed.
• Implementing an effective community engagement program well in advance of lodging the application.  There has been intense criticism of the Act throughout its development, principally in relation to the extent to which it limits or excludes public participation (to a degree that some have been wary of using the process).  As such, when using the fast track process applicants may wish to go ‘above and beyond’ in their consultation and engagement efforts in order to secure social license.
• Engaging with the council on a draft set of conditions prior to lodgement, in order to get as much agreement as possible.  Where approvals would normally be required under different legislation (e.g. RMA and Wildlife Act) it will be important to ensure the conditions for different approvals are appropriately integrated while avoiding duplication or ‘condition creep’.
• Where relevant, developing compensation and offsetting packages early so that there is time to engage with stakeholders, understand costs and ensure the proposal is workable.

For more detail see our previous article here.

If Fast Track is not available or suitable – options under the RMA

If bigger, more controversial projects do not get through the FTA referral stage, then direct referral to the Environment Court under the RMA may be the best option. There are no statutory timeframes on direct referral, but it is a useful option to shorten the overall processing timeframe if appeals are inevitable.  Direct referral can be requested after (or before) submissions have been received so applicants can get a sense of how likely it is that their project will be appealed by a submitter. The timeframes for direct referral vary depending on the urgency of the project (the America’s Cup applications were processed in 5 months) and the workload of the Court.

Finally, if the standard track RMA process is preferred, then then project teams can effectively speed up the RMA consenting process through:

• Getting the consenting strategy right from the start, including considering whether project consenting can be staged, and integrating consenting with land acquisition (if required).
• Ensuring expert witnesses are ready to be mobilised and are available for the entire process. Experts will need to be available to respond quickly to any section 92 further information requests or informal queries from the consent authority, as well as completing other standard steps such as evidence and expert conferencing.
• Extensive pre-lodgement engagement with the relevant councils planners and experts, so that requests for further information are minimised and the overall process runs more efficiently.
• Early, meaningful and ongoing engagement with the local community, iwi partners and submitters, to resolve any concerns they may have, narrow the issues and manage the risk of appeals.
• Requesting public notification when notification is expected, and engaging with councils in advance of lodgement to ensure this runs smoothly (this can save up to 20 working days of processing time if the council is able to publicly notify the application as soon as it is received).
• Agreeing and achieving a tight hearing timeframe with councils so that the hearing is closed no later than the statutory timeframes.
• For council projects, delegating the final decision-making on a notice of requirement to one person rather than a board or council, and having a pre-agreed process for making the designation operative in the event there are no appeals.

For specific and tailored advice and assistance on ensuring your project meets its key deadlines as part of the RMA or FTA consenting process, please get in touch with us.