The Fast-track Approvals Amendment Bill (the Bill) had its first reading this month (November) and is expected to pass into law by the end of the year, writes Nicky McIndoe, Partner, Wellington, Dentons; Ezekiel Hudspith Partner, Wellington, Dentons; Christina Sheard, Partner, Auckland, Dentons; and Liam Bullen, Senior Associate, Wellington, Dentons.
While Government announcements focus on those parts of the Bill designed to support the establishment of new supermarkets, the Bill also introduces a range of technical and procedural amendments, which would impact all applications under the Fast-track Approvals Act 2024 (FTAA).
We outline five key elements of these changes.
These amendments arrive just shy of a year after the FTAA was enacted. The FTAA is in full swing, with four applications granted, substantive applications lodged for 22 projects and 18 projects referred (as showing on the Fast-track website). The timing of the amendments suggests a response to early implementation challenges and signals the Government’s intent to further streamline the process.
The Bill has already attracted some controversy, including from the Environment Defence Society, because of its further restrictions on involvement by community and environmental groups. As the Bill is yet to go through Parliament and select committee processes, proposed amendments may change before it is implemented.
Scope/ listing issues
Projects that are listed in Schedule 2 are ‘pre-qualified’ for the fast-track process, but some projects have struggled to demonstrate that they are precisely the same as the listed project. The Bill would directly amend Schedule 2 to solve this problem for the Tauranga Port Stella Passage development, which was challenged in the High Court earlier this year.
In addition, the Bill proposes to give the Governor-General (on the recommendation of the Minister) the power to amend a project’s description or location in Schedule 2 of the FTAA (clause 54).
The Minister can only recommend an amendment to Schedule 2 if satisfied that the scope of the listed project would not be substantially different as a result of the amendment, taking into account: the significant regional or national benefits of the project; the purpose of the project; and the location, scale, and nature of the works involved in the project.
This amendment would provide a potential pathway for applicants to address scope issues prior to their application being lodged.
Staged projects
Applicants for listed projects can now ask the Minister to make a determination that separate applications may be lodged for each stage of a listed project (clause 19).
The Minister may make the determination if satisfied that the relevant stage, when considered as a stand-alone project, meets the criteria in section 22 (such as delivering regional or national benefits).
This amendment would be particularly useful for applicants who only have funding in place for certain stages of a listed project.
Comments
The Bill proposes to limit the right of ‘other persons’ to comment. The Fast-track Approvals Act currently lists specific groups and people who must be invited to comment on an application but allows the panel considering the application to also invite ‘other persons’ to comment in some instances.
The Bill would change this by limiting comments by ‘other persons’ to matters that would not already be covered by councils and government entities such as the Department of Conservation. The Bill would also remove the ability for ‘other persons’ who are invited to comment to appeal the panel’s decision.
These amendments would cut off statutory avenues for environmental advocacy groups, such as Forest and Bird, to challenge projects.
Timeframes
The Bill includes various amendments to improve efficiency of the Fast-track Approvals Act and decrease timeframes for processing applications. The Bill’s explanatory note boasts time savings of up to 6 weeks across referral and substantive application processes collectively.
Most notably, the Bill proposes a maximum timeframe for the panel’s decision, being 60 working days from when comments are received, unless the Applicant agrees in writing to a longer timeframe.
We commented in our September fast-track update that the average time period for a decision following close of comments is 60 working days (with all applications exceeding the default statutory period of 30 days). Therefore, the 60 days maximum timeframe is likely to prove challenging for some applicants and panels.
EPA directions
The Bill proposes to allow the Minister to give general directions to the EPA in relation to its role under the FTAA.
While this direction cannot relate to a specific substantive application, it would provide a tool for the Government to continue fine-tuning the fast-track process.