Parliament’s Environment Committee is considering the Fast-track Approvals Amendment Bill (“Bill”). Franks Ogilvie submitted on the Bill, drawing on our experience advising clients under the current environmental and consenting system. We support the Bill’s direction but identify several opportunities to strengthen its ability to deliver timely, certain, and enabling development decisions.
Key changes introduced by the Bill
The Bill amends the Fast-track Approvals Act 2024 (“Act”). While the Government announcements on the Bill focused on a new streamlined process for fast-tracking of supermarket consents, the changes introduced in the Bill are intended to better promote delivery of the Act’s purpose of facilitating the delivery of a range of infrastructure and development projects with significant regional or national benefits.
Comment and appeal rights
The Bill narrows who may comment on fast-track approval applications. Under the current Act, some expert panels have exercised their discretion to invite comment generously, including to those not directly impacted by proposed activities or opposed to certain activities on principle. The existing Act automatically grants commenters rights to appeal approval decisions.
The Bill clarifies that panels can only invite comment at their discretion where there is a pressing need not fulfilled by those that the Act requires be given comment rights (including local authorities, iwi, and government departments). Even where discretionary commenters are invited, they will lose rights to appeal panel decisions.
Technical and administrative improvements
The Bill introduces several technical improvements aimed to make processing and decision-making on fast-track applications faster. The Environmental Protection Agency is empowered to undertake initial processing tasks concurrently rather than sequentially, there is greater flexibility to amend applications after they are submitted, and a maximum time limit for panels to reach a decision is introduced.
Listed projects
In Ngāti Kuku Hapū Trust v Environmental Protection Agency [2025] NZHC 2453, the court struck down Port of Tauranga’s fast-track wharf extension because its application strayed beyond the project description set out in Schedule 2 of the Act. The Bill corrects the description of that project, allowing it to proceed to a panel. It also introduces a limited power for the Minister to correct listed project descriptions. This power is likely to be important given that another fast-track applicant has withdrawn their application due to the same issue that arose in Ngāti Kuku.
Government Policy Statements
A new power allows the Minister to issue Government Policy Statements to guide how ‘significant regional or national benefits’ are assessed in particular sectors. These statements must be considered by Ministers referring projects to expert panels, and by the expert panels themselves when deciding on approval applications.
Franks Ogilvie’s submission on the Bill
Franks Ogilvie submitted in support of the Bill, but argued that the Bill could go further to deliver on the fast-track regime’s initial promise.
Limit opportunities for interference and judicial red-tape
We supported the changes to limit the rights of expert panels to invite commenters at their discretion, and limiting the appeal rights of discretionary commenters. Participation rights for those with a direct interest in fast-tracked activities are important but individuals or groups not directly affected should not be able to interfere with approval applications.
We recommended a number of further changes to limit inappropriate interference in fast-track applications, including:
· Allowing panels to confine comments sought to specific subject-matter;
· Prohibiting commenters from making legal submissions;
· Requiring panels to provide written reasons when exercising their discretion to invite comments;
· Introducing a procedural principle to require panels limit commenters to the minimum number necessary to determine the application; and
· Including a stronger privative clause to deter strategic judicial review.
These changes would better protect the regime from the types of delays and litigation that have hindered major projects under existing environmental and planning laws.
Technical improvements
We supported most of the amendments to enhance processing efficiency. However, we noted that the mandatory 60-day timeframe for panel decisions may prove unrealistic in complex cases, and recommended the Minister be granted a power to make exemptions to the timeframe in these cases.
Ensuring listed projects can proceed as Parliament intended
We supported the new power to correct the descriptions of Schedule 2 listed projects to ensure that fast-track applications are not hindered by court challenges based on legal technicalities. While the clause allows the Minister to amend legislation (known as a ‘Henry VIII clause’), the power was sufficiently narrow and limited that it raised no constitutional issues.
Strengthening decision-making
We supported the introduction of Government Policy Statements, which will give panels better guidance about the Act’s ‘significant regional or national benefit’ test. However, we recommended that the policy statements be given greater weight in decision-making.
We also suggested improvements to s 85(3)of the Act, which governs when panels are permitted to decline approval applications. We highlighted that some early panel decisions have been less enabling than the proponents of the Act may have expected.
To make decision-making more explicitly enabling, we recommended the following changes:
· Clarifying that projects that have reached an expert panel are deemed to have significant regional or national benefits; and
· Placing the onus on opponents to prove disproportionate adverse effects that outweigh these benefits.
To read our full submission, please click here.
For further information on this or similar issues please contact Driector Brigitte Morten.
