The Environment Select Committee on Friday released its eagerly awaited report on the controversial Fast-track Approvals Bill (see our earlier insight on the original Bill here). The Bill has attracted significant public and media scrutiny, with the Committee receiving nearly 27,000 submissions in total and hearing from over 1,000 submitters.
As was foreshadowed in August through Cabinet recommendations, the Committee has softened some of the Bill's more controversial aspects, including the removal of the power of Ministers to make the final decision on projects. The Committee also accepted the other key Cabinet recommendations to:
- make the Minister for Infrastructure the sole referring Minister;
- the extension of timeframe for invited parties to comment on applications from 10 working days to 20 working days;
- clarification around Panel expertise, which now requires knowledge, skills, and expertise relevant to the approvals sought in the substantive application, in environmental matters and te ao Māori and Māori development; and
- requiring information on past decisions to be included in referral applications.
The Committee resisted calls from submitters to make the Bill more enabling (for example including private plan change applications) or to dilute some of the core provisions. Apart from changes to incorporate the Cabinet recommendations, the changes proposed by the Committee are minor amendments or tweaks to improve the efficiency of the process.
Key changes
Other key changes recommended by the Committee include:
- A requirement for the referring Minister to invite written comments from the Minister for the Environment and other relevant portfolio Ministers on all referral applications. This is a consequence of the change to the Minister for Infrastructure as sole referring Minister but is has also expanded the Ministers involved in the referral stage of the process to include the Environment portfolio. Some of the Committee considers this is sufficient to address concerns about a lack of consideration of the environment in decision-making under the Bill.
- A new provision that makes it clear that projects of significant regional or national benefit include projects that would enable the continued functioning of existing regionally or nationally significant infrastructure. This gives infrastructure providers comfort that maintenance and upgrades can be eligible for the fast-track approvals process.
- The makeup of a Panel has been amended to remove an iwi nominated member as a mandatory requirement (leaving a nominee from the local authority as the sole mandatory nominee). The Committee's explanation is that other clauses will provide for iwi to nominate or influence the nomination of panel members if an equivalent arrangement is provided for by a Treaty settlement or other arrangement. The removal of the express requirement for an iwi nominated Panel member may be because of concerns that the iwi nominee process will hold up projects, however it does remove an element of the protections for iwi in the Bill.
- An increase in the proposed lapse date from two years to a date specified by the Panel (with a default lapse period of five years). This is a welcome development with large-scale and complex projects often needing a greater than two-year lead in time. It also reflects recognition that the fast-track process can assist large-scale, complex projects of regional and national importance that would benefit from an integrated alternative approvals process, even if they are not immediately "shovel ready".
- An extension of the Panel's decision-making timeframe on referred projects. While the standard 25 working day timeframe remains, the Panel may now extend this as it thinks fit. This will be welcomed by Panels appointed to consider large-scale and complex projects and will lessen the likelihood of projects being declined because of information gaps or because of a lack of time to resolve differences between experts.
- The Committee has also included more specificity around a Panel's decision-making including a direction that a Panel may decline an approval if it forms a view that a project has one or more "adverse impacts", and those adverse impacts are sufficiently significant to outweigh the purpose of the Act even after conditions have been imposed. There is also an express direction to Panels that conditions must not be imposed that are more onerous than necessary to address the purpose for which it is set. These changes reinforce the purpose of the Act having the most weight with decision-makers.
What has not changed
The Committee resisted requests from submitters to amend the Bill to widen its application by including private plan change applications.
Similarly, in terms of submitters seeking greater environmental protection, the Committee did not make the changes sought. The hierarchy of criteria for decision-making under the Bill has not changed - greatest weight will still be given to the slightly amended purposes to facilitate the delivery of infrastructure and development projects with no recognition of environmental considerations. Likewise, categories of parties invited to comment on resource consent applications has not been amended to include community groups or NGOs.
Projects using fast-track
While not included in the Committee's report released on Friday, the Government had previously released its list of 149 projects of significant regional or national benefit. The makeup of the list reflects the Government's key priorities of enabling housing and land development (39% of the listed projects), reducing the infrastructure deficit (29%) and boosting energy security across New Zealand (15%). The list of projects also reflects a clear intention to include a spread of projects across New Zealand (for example Northland has the same number of listed projects as Wellington).
A number of the highly politicised and scrutinised projects were successful in being listed in the Bill. Despite the Committee's removal of some of the more controversial elements, the nature of these projects and the concerns raised by environmental groups around the removal of RMA environmental protections, is likely to raise the risk of appeal and judicial review proceedings.
Given the timeframe advantages the fast-track process potentially provides for listed projects and the development focused hierarchy of decision-making under the Bill, we expect a number of the listed projects will immediately lodge substantive applications. How fast the process turns out to be will depend on the EPA's ability to stand up panels promptly to consider the listed projects as well as those projects who are successfully referred into the process by the Minister.
There has been discussion that the Government is looking at the fees framework for panels. This was not addressed by the Committee but will need to be considered by the Minister to mitigate resourcing constraints which will hinder the efficiency of the process.
The number of applications will also increase resourcing pressure on Councils and those parties invited to comment. To that end, the Ministry for the Environment is exploring an updated framework for providing for recovery of costs incurred by the Government and local government from applicants. The Committee has amended the cost-recovery sections of the Bill to make it clear that local authorities can recover actual and reasonable costs of providing information requested (from the EPA) and can recover from the applicant actual and reasonable costs incurred in performing functions, duties or powers in relation to a referral and substantive application.
Next steps for the Bill
The Bill is expected to go before Parliament for its second reading in November with the intention the Bill will be passed into law before the end of the year.
The Act will come into force the day after it receives Royal assent. Listed projects will then be able to apply to the EPA to have an expert panel assess the project and apply relevant conditions.
Please get in touch with one of our experts below if you would like to discuss the potential implications of the Bill and what this may mean for you.