Applications for projects under the Fast-track Approvals Act 2024 (the Act) are coming in thick and fast, but some have not passed the first hurdle. Based on an online article from law company, Bell Gully.
At least four referral applications have already declined due to failure to meet statutory requirements under a new inquiry-led process for approvals that is quite different to current practices under the Resource Management Act 1991 (RMA).
The Ministry for the Environment is responsible for determining whether referral applications are compliant with section 14(2) of the Act, and consider the project is capable of satisfying the criteria in section 22 of the Act. This is about the project having significant regional or national benefits, and by referring the project to the Fast-track process would facilitate the project. This includes enabling it to be processed in a more timely and cost-effective way than under normal processes and is unlikely to materially affect the efficient operation of the Fast-track process; does not appear to involve an ineligible activity; and all fees and charges payable under regulations in respect of the application must have been paid.
Of the four declined so far, key non-compliance reported by MfE has included failure to engage with relevant administering agencies or consult with relevant iwi authorities and Treaty settlement agencies. Failure to provide an outline of, or clarity as to, the approvals sought. And failure to explain how each stage of a proposed staged approach individually met the criteria in section 22 of the Act or demonstrate how Fast-track referral would facilitate the project more efficiently than standard procedures.
Incomplete information to demonstrate the project excludes an ineligible activity, such as identification of parcels of Maori land within the project area, or Treaty settlements that apply to the project area, and didn’t describe the applicant’s current legal interest in the land or how that affects the applicant’s ability to undertake the project (instead, the application relied on outdated concession documents and historic land titles).
New guidance notes
The Panel Conveners have issued guidance notes for the Fast-track process that encourages early issue identification, collaborative problem-solving, and a more focused decision-making process than seen in standard RMA consenting.
Bell Gully says that while this guidance note is a must-read for Fast-track applicants, some key takeaways include providing well-structured, complete applications, proportional to the complexity of the project and prepared with the Act (including its bespoke terminology) in mind.
The guidance contains a list of recommendations about substantive applications, particularly in relation to their structure, form and content. For example, it suggests the lodgement of an overview of the application (including by way of a memorandum of legal counsel), statements that should (and should not) be in technical export reports, and the preparation of separate technical and assessment reports and condition sets for each approval sought/administering agency.
Early issue identification is critical it notes. It is the role of the Panel Conveners to decide the timing of the panel’s decision on a fast-track application, and the guidance explains ‘issue identification’ is a key method to ensure that the timeframe set by the Panel is appropriate.
The guidance also notes that the level of legal, evidentiary and factual complexity will have a bearing on the appropriate timing of the Panel decision-making.
Bell Gully says that, in its experience, projects with significant regional or national benefits (i.e., those of the nature eligible to use the fast-track process) are almost always complex.
“In our view, applicants will need to work very hard to justify, with reference to the relevant criteria, the imposition of the default 30 working-day timeframe for decision-making under the Act.
“We expect timeframes imposed to be more realistic than optimistic to enable panels sufficient time for decision-making. To date, an extended timeframe has been provided for every panel appointed, varying from 37 to 87 working days from the date specified for feedback to be received. It is clear that timeframes will not be set that prevent proper scrutiny of an application.”
Applicants should be prepared for ongoing dialogue with the Panel Conveners and panel throughout the process.
“The guidance note sets out a range of conference types anticipated as part of the fast-track process, including a panel convener conference, project overview conference, issue conference, conference on the appointment of a special or technical adviser, and pre-hearing conference. We understand the intention is that these conferences will enable applicants to respond flexibly to issues and in real time.”
Targeted hearings may become more common, says Bell Gully. “The guidance note anticipates the use of targeted hearings (e.g., on disputed fact or opinion, selected topics or issues, proposed conditions, legal issues) and quasi-inquisitorial hearing features (e.g., joint empanelment of group(s) of experts, interactive workshops on proposed conditions).”
Overall, the new guidance recommends a clear shift towards a more collaborative, transparent, and responsive consenting process, says Bell Gully.
“Applicants will need to adapt to this new approach by investing in early engagement, preparing high-quality, well-structured applications, and being ready to participate in a rigorous, interactive process.”
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