Yesterday, the Fast-track Approvals Bill passed its third and final reading and became law. The Fast-track Approvals Act represents one of the Government's keynote legislative moves this year.
In the past week, there has been a flurry of further changes made to the final form of the legislation. These include changes which make it harder for a panel to decline a project seeking approvals under the Act.
Below we summarise the key changes made to the final form of the legislation and consider what these mean for parties preparing applications.
Key changes
- Timeframe for lodging substantive applications: Substantive applications (for both a listed and referred project) cannot be lodged with the EPA before 7 February 2025. We expect this has been included to align with the finalisation of fees and levies payable by applicants – expected early in the new year.
- Prioritisation of projects: Concerns have been raised by prospective applicants throughout the Bill process about delays if there is a shortage of panellists to hear and consider applications. The Government has responded by including a pathway for applicants to seek priority for a listed or referred project via an application to the Minister, before a substantive application is lodged. If the Minister determines a project to be a "priority project" a panel will be set up for that project ahead of other non-priority projects already lodged with the EPA.
- Ministerial determinations about eligibility of certain activities: The Act now provides a pathway for the Minister to determine that certain activities, which would otherwise be classified as an ineligible activity under the Act, can use the fast-track process. This change will be welcomed by many infrastructure providers who now have the option of seeking a Ministerial determination that an otherwise ineligible activity can use the fast-track process (e.g. electricity lines in a national reserve).
- Changing or cancelling conditions of an existing resource consent: Applicants can now seek to change or cancel an existing resource consent condition as part of a fast-track application.
- Mining permits can be sought as an approval under the Act: Applicants can now seek a mining permit that would otherwise be applied for under the Crown Minerals Act 1991 as part of a fast-track application.
- Timeframe for Panel's decision: The decision-making timeframe for panels has changed significantly in the past week. Instead of the 25 working day timeframe previously proposed (and the ability for a panel to extend this timeframe as it thinks fit), the panel convenor is now responsible for setting the timeframe for when the panel must issue its decision by. If no timeframe is set, the panel must issue its decision within 30 working days after comments from invited parties are received. This change means applicants will need to consider signalling in their substantive applications what decision-making timeframe is requested, considering the scale and complexity of the project.
- Changes to applications can be made if the Panel plans to decline an approval: If a panel intends to decline an application, the Act now requires the panel to provide a copy of its draft decision to the applicant before it is issued as final to enable the applicant to make amendments to the proposal (i.e. by withdrawing aspects of the application, or proposing modifications to the project or to the proposed conditions). This change will be welcomed by applicants who will now get a second chance to amend aspects of a proposal which may otherwise result in a decision to decline.
- Time limiting judicial review applications: A new provision has been added limiting the timeframe for judicial review applications to 20 working days after the notice / publication of the relevant decision. Further time can be allowed by the High Court, but only if an application is received for further time within the 20-working day period. This will truncate the litigation risk period for projects processed under the Act.
Please get in touch with one of our experts below if you would like to discuss the potential implications of the Act and what this may mean for you.