Key takeaways:
- The Fast-Track Approvals Bill was introduced to the NZ Parliament on 7 March 2024
- If passed, the Bill will give effect to a new streamlined approvals process for major infrastructure and other projects with “significant regional or national benefits”
- It will give overarching decision-making power for approvals to joint Ministers, which has drawn criticism from many quarters, including all opposition parties, conservationists and the New Zealand Law Society
- A Select Committee is yet to report following public submissions having closed in April.
Background
The Fast-Track Approvals Bill (the Bill) is part of the coalition Government’s plan to supercharge New Zealand’s economic growth through infrastructure building and reflects a key election commitment of the National Party.
If passed, the Bill will streamline the approvals process for projects with “significant regional or national benefits”. It aims to address criticisms of the existing approvals regime as too costly and slow, and as placing “insufficient value on the economic and social benefits of development relative to other considerations”.
The Bill was introduced to Parliament for a first reading on 7 March 2024 and then proceeded to Select Committee review where public submissions closed on 19 April. We now await the Select Committee’s report.
Fast-track access
To access the fast-track approval process, a project must either be:
- listed in Schedule 2A of the Bill (in which case, it will be automatically referred);
- following an application to use the process, jointly referred by the Ministers of Infrastructure, Regional Development and Transport having been assessed as eligible according to the relevant criteria.
Project applications (private or public sector) to the Ministry of Environment closed on 3 May.
An expert Advisory Group set up by the Government in April will be engaged until July in considering projects and providing independent recommendations to Ministers on the specific projects to be listed in the Bill (none appear yet).
Projects eligible for the fast-track
For a project which is not listed in Schedule 2A of the Bill, for that project’s referral to the fast-track process the joint Ministers must be satisfied that the project has “significant regional or national benefits”.
Among the considerations the Ministers may take into account in making this assessment include whether the project:
- has been identified as a priority project in central or local government, or sector plan or strategy, or is on the central government infrastructure priority list;
- will deliver regionally or nationally significant infrastructure, or significant economic benefits;
- will increase the supply of housing, address housing needs, or contribute to a well-functioning urban environment;
- will support primary industries (including aquaculture), the development of natural resources, or climate change mitigation.
When assessing projects, the joint Ministers must consult with relevant portfolio ministers, local authorities, agencies or statutory bodies, Treaty settlement / related entities and other identified Māori groups with interests. The Ministers will have broad discretion to approve or decline parts or all of the projects and whether to disregard any recommendation made by an Expert Panel.
Projects deemed “ineligible” are set out in section 18 of the Bill. They include projects that would include, as examples, an activity that would occur on land returned under a Treaty settlement or on identified Māori land.
Expert Panel to consider eligible projects
Projects which are referred into the fast-track approvals process will be considered by an Expert Panel, typically comprised of four people including a former Environment or High Court judge.
The Panel will have a limited discretion to consult as part of its decision-making process and may or may not decide to hold hearings.
It will have a maximum of six months to make a recommendation to the joint Ministers to approve (with conditions) or decline the project.
The presumption in the legislation appears to be that the joint Ministers will adopt the recommendation of the panel when they make the final decision as to whether or not to approve a project (whether wholly or in part) and as to any conditions to which an approval may be subject. However, this is not a given as the joint Ministers have discretion to deviate from the panel’s recommendation provided they have “undertaken analysis of the recommendations and any conditions included in accordance with the relevant assessment criteria.” Accordingly, the Bill does create scope for the joint Ministers to reach a decision on an application which is very much at odds with the recommendation made by the panel on that same application.
The joint Ministers also have the ability to refer a project back to the panel for further review and/or for the potential revision of the panel’s recommendation.
Appeals process
If a project is rejected, the applicant can appeal to the High Court on points of law only, or seek judicial review of the Minister’s decision. If the High Court rejects the appeal, the applicant can apply to the Supreme Court for leave to appeal.
Controversy
The Bill is not without its critics. New Zealand’s public broadcaster, RNZ, reported on the ‘March for Nature’ on 8 June which attracted thousands to central Auckland in protest that the Bill would be “bad for the environment”.
It remains to be seen what changes – if any – the Government will be prepared to make to the Bill to ensure its safe passage or whether the coalition partners will prefer to push it through in its current form.
For more information or to stay informed on the Bill’s latest developments, please contact Paul Chambers.
