The Fast-track Approvals Bill (FTA Bill) was introduced into Parliament on 7 March 2024 under urgency, with submissions to the Select Committee closing on 19 April 2024. The Select Committee is due to report back to the House on 7 September 2024.

The consenting process in the FTA Bill is largely modelled on the Covid Fast Track Act (CFTA) and, from an applicant’s perspective, the experience will be broadly similar.

Some key differences include a greater focus on the national and regional benefits of projects, which is likely to mean a broader range of projects are eligible; a ‘one stop shop’ approach, meaning approvals can be granted for the purposes of a range of legislation, not just the Resource Management Act (RMA); and a greater decision-making role for government ministers.

The new fast-track process offers substantial benefits to applicants, including for projects that would be a prohibited or non-complying activity under the RMA, or otherwise have a high risk of decline.

There will be no notification of applications and generally no hearings, no ‘merits’ appeals, and the development-focused purpose of the FTA Bill will be a pre-eminent consideration in decision-making.

The purpose of the Bill

The FTA Bill has a simple and focused purpose, which is to: “provide a fast-track decision-making process that facilitates the delivery of infrastructure and development projects with significant regional or national benefits”.

That language is important, because the purpose will be an overriding consideration for decision-makers, to be given more weight than ‘considerations under other relevant legislation’. In particular, it will prevail over the purpose and principles of the RMA. This means projects that are inconsistent with RMA national direction, or are even prohibited under the RMA, could be granted consent if that outcome is deemed consistent with the overriding purpose of the Bill.

In contrast, the purpose of the CFTA was to urgently promote employment while also promoting ‘sustainable management’, and it was given equal weight in decision-making to the purpose of the RMA. So in this respect the FTA Bill is much more enabling.

Which projects will qualify for fast-tracking?

There are three pathways to use the FTA Bill process:

1. ‘Schedule 2A’ listed projects: Substantive applications for these projects can be made directly to the Environmental Protection Authority (EPA).
2. ‘Schedule 2B’ listed projects: Before a substantive application can be made to the EPA, a referral application must be made to the ‘joint ministers’ (being the ministers for infrastructure, regional development, and transport (and conservation in certain cases). However, by virtue of being listed these projects will be deemed to have ‘significant regional or national benefits’, which will make the referral process easier.
3. Referred projects: Other projects that deliver significant benefits can also be referred to the fast-track process (on application) by the joint ministers, after assessment against a full list of criteria (including regional or national benefits).

Listing process

There were no listed projects in Schedule 2 of the FTA Bill as first introduced. Instead, applications for listing could be made to the Ministry for the Environment up until 3 May 2024. A Fast Track Advisory Group (TAG) was tasked with considering these applications and providing independent recommendations to the joint ministers.

The joint ministers will consider the TAG's recommendations and ultimately decide which projects are included in either Schedule 2A and 2B in the FTA Bill, after the Select Committee process.

Referral process: Eligibility criteria

In making decisions about which projects should be referred into the fast-track process, Ministers must consider:

• Whether referring the project is consistent with the purpose of this Act;
• Whether access to the fast-track process will enable the project to be processed in a more timely and cost-efficient way than under normal processes;
• The impact referring this project will have on the efficient operation of the fast-track process;
• Whether the project would have significant regional or national benefits; and
• Whether the application contains sufficient information to inform the referral decision.

In deciding whether a project would have ‘significant regional or national benefits’, the ministers can consider a range of further matters including (relevantly) whether the project will deliver regionally or nationally significant infrastructure, increase the supply of housing, and/or contribute to a well-functioning urban environment.

The Bill also contains a list of ‘ineligible projects’, which are unable to use the fast-track process.

Relevantly, these include projects that would occur on Treaty settlement land, Māori customary land, or a customary marine title area. Ministers also retain a discretion to decline referral where, for example, there would be significant adverse effects on the environment, or the applicant has a poor compliance record.

Expert panel process

Substantive applications for environmental approvals will be made to the EPA in the first instance, and then passed on to an ‘Expert Panel’ who will consider the application(s) and make a recommendation to the joint ministers.

Applications will still need to include an assessment of effects on the environment, covering in substance the same matters that would be relevant under the RMA currently.

Applications cannot be either limited or publicly notified. However, the panel must invite comments on applications from people listed in the Bill. These include, for example, the relevant local authority, relevant iwi authority, land owners and occupiers, certain ministers, and anyone else the panel considers appropriate.

There is also some expectation that applicants will have consulted with affected persons and in particular iwi or hapū, given the consultation undertaken and feedback received has to be addressed in the listing or referral application, and also in the substantive application to the EPA.

The joint ministers are the ultimate decision-makers, and can either refer the panel’s recommendations back to the Panel for reconsideration, approve the project subject to any recommended conditions, or decline to approve the project.

The Bill does not include any specific timeframes for processing applications. The reported intention is for the expert panel to deliver its recommendation within six months, although ministers are able to require shorter timeframes.

Projects can only be appealed to the High Court on points of law (rather than to the Environment Court ‘on the merits’), although any declined projects can re-apply for referral.  In addition, the joint ministers’ decisions will still be open to judicial review.

‘One-stop shop’ approach

The Bill is framed as a ‘one-stop shop’ for consenting, and will provide one process for a range of environmental approvals, including: resource consents, notices of requirement, alterations to designations and certificates of compliance under the RMA; archaeological authorities under the Heritage New Zealand Pouhere Taonga Act 2014; concessions and other permissions under the Conservation Act 1987 and Reserves Act 1977; approvals under the Wildlife Act 1953; and comparable approvals under various other legislation (in relation to mining, aquaculture, and so on).

While the Bill does not include Public Works Act (PWA) processes as part of the ‘one stop shop’ it enables, but does not require, the Environment Court to accept a determination of the joint ministers about the consideration of alternative sites, when determining an objection to the taking of land under the PWA.

Application to three waters infrastructure projects

Based on the criteria in the Bill, most major three waters projects should be eligible to use the fast-track process.

Three waters services are generally recognised as regionally significant infrastructure, and major capital works projects (e.g. water storage lakes or reservoirs, or major flood prevention, stormwater or wastewater infrastructure improvements) will often be linked to increasing development capacity, enabling housing, or public health/ environmental benefits. In practical terms such projects will also need to be close to ‘shovel ready’, given the regime includes a maximum consent lapse period of only two years.

On the other hand, the fast-track process may be less readily applicable to the reconsenting of existing infrastructure, depending on the circumstances.

Once referred or listed, the fast-track process will offer a number of substantial benefits compared to business as usual consenting under the RMA. These include:

• Greater certainty of outcome: the Bill is deliberately set up to make it easier to have consents granted. In particular, consent will be able to be granted for prohibited activities in most cases, the section 104D gateway tests for non-complying activities will not apply, and the development-focused purpose is a dominant consideration. Public statements made by the relevant Ministers to date also indicate it will be rare for projects to be declined, once listed or referred.
• Certainty of process: there will be no need for a hearing (although the expert panel can elect to hold one), and no risk of merits appeals.
• Generally shorter timeframes: although there are some caveats to this (discussed below), fast-tracked projects should take less time to secure consents, overall.

There may be some reluctance to make use of the fast-track process given the lack of public consultation or opportunity for comment.

Water infrastructure providers are public entities providing public good infrastructure, and value input from communities and mana whenua. Maintaining social licence and relationships is important.

In addition, using the fast-track process could also have the potential to strain relationships with mana whenua, given the conspicuous absence of any reference to treaty principles in the Bill (only treaty settlements are mentioned).

These considerations will need to be weighed up by water infrastructure providers in deciding whether to use the fast-track process, and for which projects. However, there’s nothing to stop applicants from undertaking extensive consultation and engagement prior to lodging the applications, in order to obtain community and mana whenua feedback.

For most projects (but perhaps not all), we expect the relationship and reputational risks will be manageable.

Finally, while we expect the fast-track process will generally be quicker overall, this benefit could be somewhat overstated. We note that:

• Applying to be referred is an additional step in the consenting process with no clear timeframes (and under the CFTA it could take up to seven months to receive a referral decision from the minister). Being listed in Schedule 2A will be a definite advantage.
• The information (including environmental effects assessments) required to support a substantive application will be essentially the same as what is currently required under the RMA.
• Given the difficulties experienced in resourcing the CFTA process, there are real questions about the capacity of the system to deal with the influx of applications likely under the new process (in terms of both EPA capacity and available Expert Panel members). It is also unclear how projects will be prioritised for access to the fast-track system.
• The lack of submission or appeal rights for affected parties may simply encourage High Court appeals or judicial review. At least initially we expect there will be fertile ground for such challenges, as Expert Panels, Ministers and the Courts grapple with the untested provisions of the new legislation (for example, in determining exactly how much weight should be given to the fast-track purpose, relative to other considerations).

Overall, we consider the fast-track process will be a net positive for the sector, and will be particularly useful where projects are urgently needed from a public health perspective and will provide clear benefits.

This article was written by Ezekiel Hudspith (partner) and Hermione Kemp (solicitor) in our environment and planning team, and was originally published by Water NZ in the May/June 2024 Water Journal.