Fast-track Approvals Bill sees major changes at the eleventh hour

On 17 December 2024, the Fast-track Approvals Bill (Bill) passed its third reading, concluding a contentious legislative process. The latest shake-up was a large amendment paper introduced by the Government only seven days prior at the Committee of the Whole House stage, which proposed major changes (Amendment Paper).

The Government announced that applications will be accepted from 7 February 2025.

This article summarises the Bill and discusses the key changes incorporated by the Amendment Paper.

 

Summary of the Bill

The Bill was introduced to Parliament in March 2024, with the Government intending to provide an efficient process for projects with significant regional or national benefits to obtain approvals. The Bill was met with extensive public comment. The Environment Committee received nearly 27,000 submissions on the Bill. Some significant changes were made following the Environment Committee's report on the Bill – we published our insights in our previous article: Fast-track Approvals Bill: key changes and implications for projects in New Zealand.

The Bill provides a two-track system to enable 'fast-tracking' of required approvals. Projects can either be listed in Schedule 2 of the Bill (149 are currently listed) or can be referred. Applicants for listed projects skip the referral process and can automatically make a substantive application. The listed projects in Schedule 2 were incorporated into the Bill by the Amendment Paper.

Some of the projects listed in Schedule 2 include proposed seabed mining by Trans-Tasman Resources, an expansion of the Remarkables Ski Field, the construction and operation of 180,000 solar panels in the Waikato Region, and the development of a township in Warkworth South with 1,200 residential dwellings.  

Applicants for unlisted projects need to make a referral application, which if accepted, enables a substantive application for that project to then be made.

Substantive applications for both listed and unlisted projects will be considered by an expert panel. The expert panel can grant approvals under a number of different acts, including the Resource Management Act 1991, the Conservation Act 1987, the Crown Minerals Act 1991, and others.

 

Changes made by Amendment Paper

While the third reading of the Bill occurred on 17 December 2024, major changes were made during Committee of the Whole House, when the Bill passed that stage last week. This section summarises some of those key changes.

New approvals under the Bill

The Amendment Paper provides a process for different types of approvals to be obtained through this fast-track process. For example, approval can now be granted for a change or cancellation of a resource consent condition, and the Bill allows for the approval of a mining permit, subject to requirements, which was not previously included.

Ineligible activities

In the Bill some activities are deemed ineligible, meaning that the expert panel cannot approve an application for the activity. Previously, activities on identified Māori land, customary marine title areas or in a reserve held under the Reserves Act 1977 not vested in the Crown or Department of Conservation were ineligible activities if it had not been agreed to in writing by land owner, customary rights group or person in whom the reserve is vested.

Following the Amendment Paper, the Bill no longer requires agreement for prospecting, exploration or mining Crown-owned minerals below the surface of Māori land, customary marine title areas or reserves not vested in the Crown or Department of Conservation provided the activity will not cause, or be likely to cause, damage to the surface or prejudicial effects to landowners or occupiers.

The Amendment Paper also introduced new powers for the Minister for Infrastructure (Minister) to determine whether electricity infrastructure is an eligible activity, where it would be otherwise ineligible under the Bill. Prior to the Amendment Paper, activities, including electricity infrastructure, were ineligible if they would occur on identified land, for example national parks, reserve land, wildlife sanctuaries and others. Now the Minister can determine that the maintenance, upgrade or continued operation of existing electricity infrastructure on these areas of land is an eligible activity, if the Minister is satisfied the activity would not materially increase the scale or adverse effects of the existing infrastructure. The Minister can also determine that the construction of new power lines on this land is an eligible activity if it would not be practical or reasonable to undertake the activity on other land.

Priority projects

The Amendment Paper now provides for the Minister to identify priority projects. The Minister may determine that a project is a priority if it needs to be progressed urgently and the establishment of an expert panel for the project will not reflect the urgency of the project. Applications that have competing applications (discussed below) cannot be priority projects. The impact of being a priority project is that panel conveners must establish panels for priority projects, before other projects.

Competing applications and existing consents

The Amendment Paper adds new requirements to identify competing applications and existing consents.

A competing application is defined as a substantive application under this Bill or an application under another specified Act (Application B) if the application relates to the same natural and physical resources as another application (Application A) and could be not fully exercised if Application A was granted.

When the Minister receives a referral application they must invite comments from local authorities. A local authority is required to provide comments advising on whether there would be any competing applications with the activity subject to the referral application if a substantive application was lodged, and whether there are any existing resource consents for that activity.

After a substantive application is lodged, the Environmental Protection Authority (EPA) must make a recommendation to the Minister on whether there are any competing applications or existing consents. If the Minister decides that an application has a competing application, the Minister must give notice to the consent authority with which the competing application has been lodged and to the applicant of the substantive application. A substantive application with a competing application can be processed after the competing application has been identified. The Minister must be notified by the EPA or the consent authority when the competing application has been determined and whether any rights of appeal have been exhausted or have expired. If the Minister decides there is an existing consent for the activity the application must be returned to the applicant with written reasons.

Functions of expert panel

A test allowing the expert panel to decline an approval where the adverse impacts of the activity would outweigh the purpose of the Bill was introduced to the Bill following consideration by the Environment Committee. The test has been changed by the Amendment Paper and now allows the expert panel to decline the approval where the adverse impacts of the project are "sufficiently significant to be out of proportion to the project's regional or national benefits", even after taking into account any conditions or modifications that the applicant may agree to or propose to manage those adverse impacts.

Following the Amendment Paper the Bill now requires the expert panel to provide the draft decision to the applicant if it proposes to decline the approval. The expert panel must invite the applicant to propose conditions or modifications to the approvals sought or withdraw part of the application in response to that notification.

Procedural changes

Prior to the Amendment Paper, an approval under the Bill would commence after all appeal rights have been exhausted or expired. Now an approval can commence from when the expert panel issues its decision document. However, for some approvals, such as designations, conservation covenants and access arrangements, specific provisions apply to when the approval commences.

The Amendment Paper now provides for regulations to be made under the Bill to set fees, charges or contributions.

The Amendment Paper also introduced a strict 20-working-day time limit to file a judicial review of a referral or substantive decision, marking a significant procedural change.

If you have any questions about the Bill, or the impacts, please contact your usual DLA Piper adviser.