Fast-track consenting: the opportunities and the challenges

Fast-tracking has quickly become one of the buzzwords of 2024. The proposed introduction of new fast-track consenting legislation in early March presents the opportunity to further streamline a range of required approvals for eligible projects, but also comes with potential risks for achieving appropriate economic, environmental, social, and cultural outcomes, and marginalising affected stakeholders and communities.

Fast-track consenting is not a new idea – the fast-track process introduced as an economic stimulus under COVID-19-Fast Track Consenting Act has resulted in resource consents and designations being approved for around 66 eligible projects to date by Expert Consenting Panels administered by the Environmental Protection Authority (EPA), rather than local District and Regional Councils.

The now-repealed Natural and Built Environment Act also includes a similar fast-track consenting process which remains in effect until the new legislation is passed.

These provide a condensed process for securing resource consents (70 – 140 working days versus approximately six months for a standard Council notified consent process), including limiting public participation to receiving comments from specified parties. There is no requirement for Expert Consenting Panels to convene a hearing, although they may do so. Decisions of the panel cannot be appealed to the Environment Court – only to the High Court on points of law.

Boffa Miskell has had the unique position of assisting both applicants and Councils navigate the Covid 19 Fast-Track consenting process. This includes preparation of fast-track consent applications for the largest current infrastructure project in the South Island, the $1.4b new Dunedin Hospital. We have also contributed members to several Expert Consenting Panels determining applications. This has given us the privileged position of experiencing the process through a wide lens. 

Whilst providing increased speed and certainty for projects, our experience is that the current fast track consenting processes also come with some challenges and risks, including:

• To become eligible to use the fast-track process, projects must first apply to the Minister for the Environment, who has a broad discretion to decline applications. There is no maximum timeframe for completing that process, thereby increasing overall timeframes for approval of a project. 
• Once accepted as an eligible project, the Minister may impose requirements for additional information and/or environmental effects assessments to be addressed in subsequent consent applications, potentially introducing additional consenting risk.
• Applicants need to be mindful of maintaining enduring relationships beyond any consenting process. Despite the limitations on public participation, working collaboratively with Councils, stakeholders and iwi, and others, before and during the fast-track process remains important; and doing so can result in their comments being more limited/supportive and increasing the likelihood of a favorable panel decision and conditions.
• Extensive requests for further information from panels are uncommon. It is therefore critical that applications are comprehensive and supported with robust environmental effects assessments to give the panel’s confidence in its decision making. Otherwise, panels may be more inclined to impose a wider range of conditions or decline consent altogether.
• Fast means fast – applicants need to be geared up to respond at pace to requests from the panel and comments from specified parties within short timeframes. Engaging committed planning and legal advisors experienced in fast-track processes is critical to success.
• Fast-track processes do not provide the same opportunity as the standard RMA process for applicants to engage with the panel on appropriate conditions of consent. While lessened by the expert nature of the panels, there is risk of unsuitable conditions being imposed with no ability to appeal except on points of law to the High Court.
• Consents/designations are unable to be subsequently varied/altered using the fast-track process. Applications for variations/alterations must be made to the District or Regional Council who may use the opportunity to rectify what they may perceive as deficiencies in the panel’s original decision.

There has been much speculation about what will be included in the new fast-track consenting legislation, heightened by lobbying from a wide range of groups, and recent government announcements on ‘fixing the housing crisis’, and other perceived infrastructure failings.

What we do know is that it will likely provide a ‘one-stop shop’ for a range of approvals required for local, regionally and nationally significant infrastructure and development projects under various legislation (e.g. RMA, Conservation Act). It will likely contain a list of eligible projects, and a process for acceptance of other projects to become eligible. Applications for eligible projects will then go to an expert panel as they do currently, but they may have a limited ability to decline them.

All will be revealed around the 7th of March when the new legislation is expected to be introduced. Of particular interest will be:

• The stated purpose of the Act, and the extent to which achievement of economic outcomes override or are balanced with environmental, social, and cultural ones, noting that a lack of environmental and cultural focus may attract appeals which would reduce the effectiveness of the fast-track process.
• The breadth of eligible projects listed in the legislation, noting the inherent difficultly and risk for the government in picking winners, and that listing too many projects runs the risk of quickly overstretching the resourcing of the EPA and expert panels.
• The qualifying criteria and responsibilities for deciding acceptance of other projects into the fast-track process, including what role the principles of Te Tiriti o Waitangi and the existing national and local strategic policy settings (e.g. national/regional policy statements) will have in decision making.
• The extent to which meaningful Council, stakeholder, iwi, and public participation is enabled, including on making decisions on acceptance into fast-track process.
• The limited grounds over which applications may be declined, and any rights of appeal provided.
• The scope of approvals under various legislation included in the ‘one-stop’ fast-track process, and the clarity, certainty, and timeliness of consenting processes.

Boffa Miskell is well practiced in fast-track consenting processes and is keeping up to speed with the proposed changes. We will be analysing the new legislation and what it will mean for consenting a wide of projects.

Please get in contact if you would like to discuss what the new process may mean for your project.