Fast-track consenting is back in political headlines following Sunday's announcement that Cabinet intends to recommend changes to the Fast-Track Approvals Bill (Bill) and is continuing to consider the projects that have applied to be scheduled.
Likely reflecting on the nearly 27,000 submissions made to the Environment Committee on the Bill, Cabinet proposes to recommend key changes to the Bill. In our view, these changes are designed to depoliticise some of the more controversial aspects of the Bill, but do not change the substance of the Bill or the fast-track consenting process itself.
We provide an overview of the key changes, other aspects of the Bill to keep an eye out for, and the projects seeking to be scheduled below.
Key changes
Cabinet will be recommending the following changes:
- The Expert Consenting Panel, not the Ministers, will make the final decision on projects. This is the same as both the COVID-19 (Fast-track Consenting) Act 2020 and the process retained in the Natural and Built Environments Act 2023. This change is unsurprising, given the immense public interest there was in this aspect of the Bill.
- The Minister for Infrastructure will be referring projects to an expert panel – not the three Ministers (Minister for Infrastructure, Minister of Transport, and Minister for Regional Development) as was previously proposed. This should simplify processes surrounding referral applications, although consultation with other relevant Ministers on referral applications will be required including with the Minister for the Environment (who had noticeably been absent from the Bill compared to their key involvement in earlier fast-track consenting regimes).
- The timeframe for parties to make comments on projects will be extended. Currently, the Bill proposes to give those invited to comment 10 working days to make their comments (which has been the same through the different fast-track consenting regimes). It will be interesting to see how much additional time will be given, as a key benefit of the fast-track regime is the timeframes to obtain consents.
- Panel members will be required to expertise in environmental matters, and the Panel will include an iwi authority representative only when required by Treaty settlements. Panel members will also be required to have expertise in Māori development and te ao Māori (as opposed to an understanding of mātauranga Māori, as previously proposed).
- Information on past decisions will be required to be included in referral applications. While not specifically required under the COVID-19 regime, past decisions were considered when determining whether to refer a project. This is, therefore, not expected to be overly different from previous fast-track regimes.
The Environment Select Committee will decide whether to implement Cabinet's recommendations into its report on the Bill which is due to be reported back to the House by 18 October 2024.
Other aspects of the Bill to watch
There are several aspects of the Bill that the announcement is silent on. Key things to keep an eye out on include:
- Lapse dates: No changes were indicated surrounding the lapse dates for consents and approvals. This was two years under the original COVID-19 Act and five years in the Natural and Built Environments Act. The Bill proposed a two-year lapse period for approvals, but there is potential this could increase. There has been a lot of interest in this aspect of the Bill, as the lapse date will impact which projects will seek to use the process (a two-year lapse period may not suit some larger-scale and complex projects, including renewable projects).
- Expansion of types of approvals: A range of other approvals are already proposed to be available under the regime (including wildlife permits under the Wildlife Act 1953 and concessions under the Conservation Act 1987), but the announcement is quiet on whether other approvals, like road stopping or plan changes, will be brought into the Bill.
- Parties invited to comment: Some parties sought to expand who will be eligible to automatically invited comment on a referral application. It is unclear whether the Government will seek to expand the list of who will be eligible to be more consistent with the COVID-19 regime (which had a broader range of parties to be invited for comment).
Projects seeking to be scheduled
The Government also released an overview of the 384 projects that applied to be listed in Schedule 2 of the Bill. While Cabinet is still finalising the list of projects, this overview provides an interesting snapshot of projects that may be listed in the Bill:
- The largest group of applications (40 per cent, approximately 153 projects) came from the housing and urban development sector followed by infrastructure (24 per cent, approximately 92 projects). This is unsurprising, given this Government's significant focus on enabling housing, urban development and infrastructure.
- While only 10 percent of all applications relate to mining and quarrying (5% to each sector), this accounts for roughly 38 different projects (19 projects in each sector). Given the public debate that arose during the Select Committee process about these kinds of projects, these are likely to still be subject to scrutiny and media interest.
Fast-track is not the only change in town
The Government has also announced its plan and priorities for its second phase of resource management reform. While no specific proposals have been announced, the Government plans to progress a second RMA Amendment Bill and to make several changes to national direction (which includes seven new pieces of national direction, and changes to 14 existing ones). The changes relate to four key sectors: infrastructure and energy, housing, farming and the primary sector, and emergencies and natural hazards. The Minister expects to introduce the second Amendment Bill to Parliament before the end of the year and pass into law in mid-2025, with the changes to national direction following the same timeframes.
If you would like to discuss the Bill or future resource management reform, please get in touch with one of our experts below.