Fast-track consenting changes: what the Fast-track Approvals Amendment Bill means for you

Overview

The Act provides a streamlined consenting process for certain infrastructure and development projects as an alternative to using the Resource Management Act processes.

We set out below the key proposed amendments. Several were foreshadowed in our earlier analysis of the process to date, including in our publications:

• The Fast-Track process does not allow short cuts: compliance is key as rejections at the first hurdle rise and new guidance is issued.
  
  
• Fast-Track in action: decisions rolling in as process set for a tune-up.

Ministerial powers extended 

	The Bill would give the Minister for Infrastructure powers to determine whether a project is regionally or nationally significant through the issuance of a Government Policy Statement (GPS) on the regional or national benefits of specified types of infrastructure and development projects. The Minister must have regard to their own GPS when assessing the regional or national benefits of a referral application. In turn, the panel must also consider both the GPS and the Minister’s reasons for accepting a referral application (if it is an unlisted project) when determining a project’s substantive application. To underscore the Minister’s role in assessing the regional or national benefits of certain infrastructure and development projects, Schedule 2 has been changed from “Listed projects” to: Listed projects with significant regional or national benefits These changes are likely to have a significant practical impact. A project’s regional or national benefits are fundamental to its success in the fast-track regime, particularly when assessing whether adverse effects are outweighed by the benefits.
	The Bill would enable the Minister to recommend that a listed project’s description or the description of its approximate geographical location in Schedule 2 of the FTAA be amended, provided the scope of the project will not be substantially different as a result of the amendment considering the project’s regional or national benefits, purpose, and the location, scale and nature of works involved. Changes to Schedule 2 have also been included in the Bill itself, so that the Port of Tauranga’s Stella Passage Development now encompasses the Mount Maunganui Wharf. The Stella Passage Development would not have been able to rely on the proposed amendments permitting modifications to listed projects, given the changes to the location, scale and nature of works involved.
	The Bill provides the Minister with the power to give a general direction to the Environmental Protection Authority in relation to its performance and exercise of its functions, duties and powers under the FTAA.   The Bill cautions that the Minister’s directions cannot be given about the performance and exercise of functions, duties and powers in relation to a particular substantive application.
	The Minister can determine that a listed or referred project is a priority before a panel is set up, rather than before a substantive application is lodged. The amendments clarify that this does not require the panel convenor to pause or delay work that is already underway in setting up a panel for another substantive application, unless that application competes with the priority application.

 
Reducing returned / declined applications

Under the Bill, applicants can modify their substantive applications by giving notice to the panel (whereas previously applicants were unable to make changes once lodged). The panel can submit the modification request to the Minister, who can then determine whether the project can proceed in its modified form, if the Minister considers it has significant regional or national benefits.   If the modification is accepted by the Minister, only parties invited to make written comments on the application will be notified of the project’s modified form.

Listed projects planned to proceed in stages may make a written request to the Minister for a determination that they may lodge a separate substantive application for a specified stage of the project.   This amendment addresses an anomaly in the FTAA where referred projects could make separate substantive applications for each stage of a project, but listed projects could not.

Reduced consultation requirements and opportunities to comment
 

Applicants would no longer need to consult local authorities, iwi authorities, hapū or Treaty settlement entities before lodging a referral application (non-listed projects) or as part of pre-lodgement requirements (listed projects). Instead, applicants are required to notify these parties in writing. A response from groups which are notified would be limited to 20 working days after receiving the notice. All decision-makers under the FTAA are required to act in a manner that is consistent with Treaty settlement obligations and recognised customary rights. Therefore, we consider applicants with relevant applications should continue to engage with the Post-settlement Governance Entities and recognised customary rights holders.

A panel would no longer have the broad discretion to invite comments “from any other person the panel considers appropriate”. As noted in our previous publication, panels exercising their broad discretion under section 53(3) of the FTAA have adopted a range of approaches, resulting in differing outcomes. This change may go some way to limiting that. Panels would be required to check whether the relevant local authorities or relevant administering agencies intend to comment on the matter, and comments would be restricted to any other person or group the panel considers appropriate if the local authorities or administrating agencies do not intend to comment on the matter, or that the panel considers that the comments from those authorities or agencies will not enable the panel to sufficiently address the matter. This is likely to limit persons invited to comment.

Timeframes

2 years	The Bill amends an oversight as to the lapse period of a resource consent or designation if no date is specified – the approval lapses two years after it commences.
60 working days	The FTAA includes a default decision making time of 30 working days after comments from invited parties are received, with no upper limit. Panel convenors are tasked with setting the timeframe for decisions, with most projects allocated more than 60 working days following the receipt of invited comments. The Bill proposes to add a maximum timeframe for decision making, with panels required to issue a decision within 60 working days after the comments deadline, unless the applicant agrees to a different timeframe.   A panel convenor must set this shortened period no matter the complexity of the project. This may lead to more applications being subject to restrictive conditions as panels err on the side of caution if they consider they have not had sufficient time to consider issues.
	The panel convenor is now directed to elect a panel within 15 working days after receiving a notice. Currently, a panel convenor is not limited to a working day period.

Membership of panels

	An applicant or local authority can raise concerns about a prospective panel member.
	Amendments reinforce that panels must include expertise in the sector to which the application relates, as well as expertise relevant to the approvals sought.

Requests for further information

A decision-maker required to determine if a referral application, or a substantive application, is “complete and within scope”, would be able to request further information in making its determination. The time period for decisions ceases to run until the information is provided or a set number of days has passed after the request. This amendment is likely to reduce the number of applications being returned as “incomplete” and the associated delay in consenting those projects.

Adverse effects

Applicants would be required to explain the significance of any anticipated or known adverse effects on the project. This amendment would provide an opportunity for applicants to show that those adverse effects are not sufficiently serious to be disproportionate to the project’s national or regional benefits – a potential roadblock for a project’s success through the fast-track regime.

Continuation of other consenting processes

Amendments to the definition of “competing applications” clarify that applicants may continue with any consenting processes they are already participating in, without the risk of having to withdraw from one process to engage in another.   Under the revised definition, competing applications are those submitted by a person other than the person that lodged the substantive application in question.

Limited appeal rights

Appeal rights are further limited under the Bill, being limited to those who are invited to provide comments under the specified sections of the FTAA, rather than those groups who are generally invited to comment. This is likely to reduce the risk of appeals for applicants.

If you would like assistance with a fast-track consent application, or if you would like more information about the matters discussed in this article, please get in touch with the contacts listed or your usual Bell Gully adviser.

Disclaimer: This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.