Fast-track Approvals Bill

Christina Sheard (Partner), Liam Bullen (Associate) and Sarah Scrivener (Solicitor) in Dentons’ Environment and Planning and Major Projects and Construction teams.

The ‘Fast-track Approvals Bill’ (‘FTA Bill’) was introduced and received its first reading under urgency on 7 March 2024 and has been relatively controversial with significant attention across various industries and from environmental groups.

The Bill is now before the Environment Select Committee and the public could have made submissions on the Bill until 19 April.

The Bill aims to establish a method for fast-track approvals in relation to “infrastructure and development projects with significant regional or national benefits”. The brainchild of the Regional Development Minister Shane Jones, the Bill forms part of the National-NZ First coalition agreement as well as being part of the new Government’s 100-day plan. The objectives are to cut consenting costs and timeframes and provide a more enabling process for major projects.

The Bill also aims to add some of the issues highlighted in the NZ Infrastructure report published in January 2023 that referred to the significant rise in the costs attributable to consenting infrastructure projects that have increased by over 66 percent since 2015 (non-notified consents). There has also been an increase of 12 percent for notified consents. The median time taken by local authorities to reach a decision on a consent application has also increased by 50 percent.

If passed into legislation, this Bill stands to affect contractors under construction contracts for major projects in future by potentially reducing consenting timeframes and associated costs.

Processes and projects that could benefit

The process is largely modelled on the Covid Fast Track legislation (the purpose of which was to urgently promote employment and support certainty of investment), but with a longer-term focus and some interesting additions. The key differences are a focus on national and regional benefits of projects, a wider range of eligible projects, and the ‘onestop-shop’ nature of the process. Minister Chris Bishop says the FTA Bill will be “far more effective” than the fast-track process included in the Natural and Built Environments Act developed by the previous government.

The matters that may be considered when determining whether a project has significant regional or national benefits are set out in clause 17(3) of the Bill. These matters include whether projects are on government infrastructure priority lists; deliver significant regional or national infrastructure; will increase housing supply or contribute to a well-functioning urban environment; deliver significant economic benefits; support primary industries; develop natural resources including minerals and petroleum; or relate to other environmental considerations.

Minsters for Infrastructure, Transport, Regional Development, Conservation (where relevant), and Resources (where relevant), acting jointly, will determine if a project can be referred to an expert panel (except for the Part ‘A’ listed projects in Schedule 2 of the FTA Bill that are automatically referred to the fast-track process).

In making decisions about which projects enter the fast-track process, Ministers must consider whether the project is consistent with the purpose of the FTA, whether referral will result in a faster consenting decision, whether there is capacity in the fast-track consenting system to consider it, whether the project has significant regional or national benefits, and whether there is sufficient information in the application. Minsters must also consult with and consider any comments from relevant local authorities, agencies or statutory bodies, portfolio Ministers, and relevant iwi [Maori tribal] authorities.

Ministers must decline referral applications if the project is inconsistent with the purpose of the FTA, the mandatory considerations listed above, or if the proposal involves an ineligible activity. Even if the referral criteria are met, the Ministers have a discretion to decline referral where, for example, there are significant adverse effects on the environment, or the applicant has a poor compliance record. Overall, the Ministers’ discretion is very broad. This discretion includes the ability to impose restrictions on the application (for example, geographical, duration or aspects of the activity that may be carried out).

There are certain types of projects that will not be able to be fast-tracked (e.g. those that occur on treaty settlement land and national parks). Offshore wind is also on the ‘banned’ list until “permitting legislation” is put in place.

Available to a wide range of projects The FTA Bill provides for three types of projects. Type ‘A’ listed projects are automatically referred to the fast-track process. Type ‘B’ listed projects still need to be referred (upon application) by the Ministers set out above, but their significant regional or national benefits are assumed. Type B projects will be those that are in the pipeline, but not enough information is known about them to gain automatic entry into the fast-track process (i.e. unlike Type A projects further work is required to get the applications ready).

Referred projects are other projects that deliver significant benefits which can also be referred (upon application) by the Ministers after assessment against a list of criteria.

There are currently no listed projects in the FTA Bill. A ‘Fast Track Advisory Group’ has been established to consider which projects should be listed through the remainder of the Select Committee phase. The Government has established “an independent process to provide advice to Ministers about what projects should be listed in the Bill”. Applications for listed projects opened on 3 April. Applications can be made by both public and private sectors until 3 May [this month].

One of the details to be included in the application is the ‘construction readiness’ of the project.

The Government intends to recommend the insertion of projects into Schedule 2A and Schedule 2B via an Amendment Paper once the Bill returns to the House.

Expert consenting panel Applications will be considered by an expert panel and the panel’s recommendation must be issued within six months.

Unlike standard RMA processes, there will not be any public notification of applications (comments will be sought from a limited range of stakeholders) and a hearing is not required.

The panel will determine how environmental effects should be managed and weigh any residual environmental effects that cannot be managed against the purpose of the Act (while prioritising that purpose).

The expert panel will then recommend that the relevant Ministers approve or decline the project. The Ministers willmake the ultimate decision and can also refer the project back to the panel to revise conditions. This process contrasts with the Covid Fast Track legislation, where the expert panel made the final decision rather than the Ministers.

Projects can only be appealed to the High Court on points of law (rather than to the Environment Court ‘on the merits’) however, declined projects can re-apply under the fasttrack process. The Ministers’ decision can also be judicially reviewed which poses a major risk for applications where the Ministers do not adopt the expert panel’s.

The FTA Bill aims to be a ‘one-stop shop’ for environmental approvals (in a similar way to the ‘severe weather orders’ which were largely focused on temporary occupation to carry

out construction work) and will provide one process for the fast-tracking of approvals under the Resource Management Act 1991 as well as consents and approvals under various other Acts.

Relevance to contractors

Contractors may be required to assist Principals in both the referral process under clause 14 of the Bill and the application process (if the project is referred).

In particular, a proposal to the Ministers for referral must include a detailed description of the proposed project, the anticipated timeframe for construction and an outline of proposed construction stages, where relevant. Contractors’ input into that information will be crucial and must be knowledgeable in the effects of construction on the environment, a key of the FTA Bill application process under clause 14(3)(e).

While the listed projects have not been identified yet, the Government has said that it expects the FTA Act will assist in the implementation of the Government’s Policy Statement on Land Transport (currently in draft), more specifically in relation to the Roads of National Significance.

Transport Minister Simeon Brown has said that the FTA Bill will “provide immediate confidence in the construction sector to invest in capability and equipment needed to deliver projects”. The truncated timeframes and urgency to get such projects moving quickly will mean that contractors are also likely to be put under pressure to move quickly.

Organisations such as Civil Contractors New Zealand are actively informing the fast-track approvals process by engaging with the Ministry for the Environment and utilising the Select Committee process that is currently underway.

CCNZ’s submission raises various advantages/disadvantages on behalf of its members, including the following.

• Its support of the fast-track avenue for infrastructure projects of national, regional and local significance.
• The importance of the availability of fast-track consenting for a ‘range of project scales’.
• The concern that day-to-day infrastructure construction being ‘passed over in favour of megaprojects’, despite the fact that ongoing infrastructure programmes (construction and maintenance) also require faster consenting.
• The enabling infrastructure (quarries and cleanfill) projects should be included in the ambit of the legislation. The balancing of environmental impacts and remedial works should be included in consenting processes.

The Government is committed to pushing this Bill through. The scope for amendments during the Select Committee stage is likely to be limited by the commitments in the Coalition

Agreement. It is clear that, by the end of the year, we will have a FTA Act in place, and there is likely to be a mad scramble to get projects through the process. Contractors will need to be ready to respond to those challenges.

This publication is not designed to provide legal or other advice and you should not take, or refrain from taking, action based on its content. Dentons does not accept any liability other than to its clients, and then only in relation to specific requests for advice. For specific advice, contact your legal advisor or the Major Projects and Construction Team at Dentons on (09) 379 4196.