The Government has unveiled its plan to speed up the delivery of significant infrastructure and development projects by introducing a new Fast Track Approvals Bill (Bill) to Parliament.

The Bill will provide a fast-track ‘one-stop shop’ for environmental approvals. While the Bill is based on previous fast-track resource consent regimes, eligibility and the types of authorisations which can be issued have been broadened, reflecting the emphasis of the Government on growth and development. The Minister for the Environment has also been replaced as a key decision maker by a range of development-focussed ministers which will act jointly under the Bill and have ultimate decision-making power.

Some projects listed in the Bill will be automatically referred through the fast-track process. Others will need to apply to the joint ministers for referral to use the process. Over the next few months, project owners will have an opportunity to influence which projects are ’automatically’ referred. However, included in that list or not, infrastructure and development projects are set to benefit from the new regime.

We set out the key features of the Bill below:

The process is a one-stop shop for environmental approvals:

The scope of the Bill is broad and enables project owners to apply for and obtain, in one process, all of the environmental approvals needed for a project (not just resource consents). For example, the process can be used to apply for marine consents under the Exclusive Economic Zone Act, land access arrangements under the Crown Minerals Act, archaeological authorities under the Heritage New Zealand Pouhere Taonga Act and concessions under the Conservation Act. The Bill includes a new process for applying for each of these approvals. This is a key difference to previous fast-track consent regimes (under the COVID-19 Recovery (Fast-Track Consenting) Act 2020 (COVID-19 process) and clauses 4 to 9 of Schedule 1 of the Resource Management (Natural and Built Environment and Spatial Planning Repeal and Interim Fast-track Consenting) Act 2023 (NBEA process) which were focussed on RMA approvals.

Some projects will be automatically referred through the process:

Like previous fast-track legislation, the Bill will include a list of projects which will be automatically referred through the fast-track process, without having to make an initial referral application. This list hasn’t been prepared or included in the Bill yet. The Ministers of Infrastructure, Regional Development and Transport (Joint Ministers) will prepare the list over the coming months on advice of a Fast Track Advisory Group of independent experts which will be established shortly. Cabinet will then decide on the projects to include in the Bill through the select committee process. The Bill will also include a list of projects that are not automatically referred but their national or regional benefits can be assumed.

Other projects with regional or national benefits can apply for referral to use the fast-track process:

If a project is not listed, an application can still be made for the project to be referred through the fast-track process. There is no specific list of eligible activities, only ineligible activities. Ineligible activities include offshore decommissioning related activities and renewable energy projects where these would begin before new proposed offshore renewable energy permitting legislation comes into force. Significantly, the Bill explicitly indicates that a project is not ineligible just because it includes an activity prohibited by a regional or district plan under the RMA (but it is a factor which may cause the Joint Ministers to decline it).

The Ministers of Infrastructure, Regional Development and Transport will be the decision-makers; they will lead the referral process and determine whether to grant the approvals sought:

• Where an application to refer a project through the fast-track process is made, the Joint Ministers will decide the application. The Minister for the Environment, who had a key role in making referral decisions under previous fast-track processes, does not have a role under the Bill unless an application includes marine consents.
• Expert panels will provide recommendations on applications for referred projects, and recommended conditions, but the ultimate decision on whether to grant any approval will be made by the Joint Ministers. This is a significant point of difference to previous fast-track processes where the expert panel made the decision. The Bill provides that the Joint Ministers must not decide to deviate from a Panel’s recommendations unless they have undertaken analysis of the recommendations and any conditions included in accordance with the relevant assessment criteria in the Bill.
• The Joint Ministers can also refer the whole or part of the panel’s recommendation back to the expert panel to reconsider and can give directions in relation to that reconsideration.

The purpose of the Act is focused on the delivery of infrastructure and development:

Among other matters, the Joint Ministers will consider whether the project meets the purpose of the Act in deciding whether to refer a project. The purpose is to provide a fast-track decision-making process that facilitates the delivery of infrastructure and development projects with significant regional or national benefits. Factors relevant to determining whether a project has “significant regional or national benefits” may include whether the project is a priority project in a central government, local government, or sector plan or strategy, whether it will deliver regionally or nationally significant infrastructure, increase the supply of housing, support primary industries, support the development of natural resources, support climate change mitigation or address significant environmental issues.

Public input in the process is restricted: Like previous fast-track processes, the Joint Ministers and expert panel cannot seek public submissions and there is no requirement to hold a hearing, however:

• Project owners applying for referral to use the process are required to engage with relevant iwi, hapu and Treaty settlement entities, any relevant applicants for customary marine title, ngā hapū o Ngāti Porou (if relevant) and relevant local authorities. A summary of this engagement and how it has informed the project is required to be included in the application.
• In considering a referral application and a substantive application, the Joint Ministers and expert panel (respectively) are required to seek and consider comments from other Ministers, local government, Māori groups, landowners and others listed in the Bill.
• Notably, there is no requirement for an applicant for environmental approvals to include a cultural impact assessment as part of the application. This was a requirement under the COVID-19 process.

The timeframes involved in the fast-track process are to be reduced:

Expert panels will have six months to make their recommendations from the time projects are referred, which signals an intention to ensure the process is faster than before.

If a referral or approval application is declined the applicant can amend the application and re-apply:

This is a new process step. There also remains very limited rights to appeal a decision to the High Court (and beyond) on questions of law. Judicial review will remain available and could be a tool used to challenge the Joint Ministers’ decision making.

The Bill will keep applications made under the previous fast-track consenting legislation alive:

The Bill will repeal the NBEA process, but any applications made under that process can continue to be processed as if that Act had not been repealed.

What's next?

The Bill has received its first reading and is now with the Environment Select Committee for public submissions until 19 April 2024. The Select Committee is due to report back to Parliament, including on any recommended changes to the Bill by 7 September 2024.

Concurrently the Fast Track Advisory Group will be established to advise the Joint Ministers on the list of ’automatically’ referred projects. The Group will publish criteria which applicants can use to submit their projects to the Group for evaluation and potential inclusion as a listed project. If you have a project that could benefit from the fast-track process, we recommend you submit your project for consideration to the Group.

Please reach out to one of our experts if you would like more information about the Bill and how it might affect you, or if would like assistance making a submission to the Environment Select Committee.

This article was co-authored by Holly-Marie Rearic, a Senior Solicitor in our Environment team.