Policy on the Fast-track Approvals Act 2024

Prepared and adopted: February 2025

1. The Fast-track Approvals Act 2024 (“FTAA”) enables applicants to seek approval for nationally or regionally significant projects under a different process and with different decision-making criteria than would apply if the approval were sought under a specified Act (eg Conservation Act 1987).
2. The Authority has a role under the FTAA in relation to some approvals. This Policy guides the Authority’s participation in FTAA processes.

Context

Scope of approvals that may be sought under FTAA

3. Approvals that can be sought under the FTAA are: (FTAA s 42.)
   • A resource consent, change of consent conditions, designation or alteration to an existing designation, notice of requirement that would otherwise be sought under the Resource Management Act 1991.
   • A concession that would otherwise be sought under the Conservation Act 1987, Wildlife Act 1953 or National Parks Act 1980 or Reserves Act 1977, including a lease, license, permit or easement in respect of a reserve other than a Crown-administered reserve that would otherwise be sought under the Reserves Act 1977 (together “concession”).
   • A land exchange of a conservation area or Crown-owned reserve.
   • An amendment to or revocation of a conservation covenant in force under s 27 of the Conservation Act 1987 or s 77 of the Reserves Act 1977.
   • A wildlife approval under the Wildlife Act 1953.
   • An archaeological authority described in section 44(a) or (b) of the Heritage New Zealand Pouhere Taonga Act 2014 that would otherwise be applied for under that Act.
   • An approval or a dispensation that would otherwise be applied for under regulation 42 or 43 of the Freshwater Fisheries Regulations 1983 in respect of a complex freshwater fisheries activity. A marine consent that would otherwise be applied for under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012.
   • An initial access arrangement or a variation to an existing access arrangement that would otherwise be applied for under section 61 of the Crown Minerals Act 1991.
   • A mining permit that would otherwise be applied for under section 23A of the Crown Minerals Act 1991
4. There are some qualifications and exclusions that limit the scope of approvals that may be sought under the FTAA. For example, most activities may not seek approval or a land exchange for land listed in FTAA Schedule 4 (which includes national parks, nature reserves, wilderness areas). (FTAA ss 5 and 42.)

Key steps in FTAA approvals (summary)

5. Where a project is listed in Schedule 2 of the FTAA, an eligible person may lodge an application with the Environmental Protection Authority (“EPA”). The EPA refers the application to an expert consenting panel. The panel must invite written comments from specified parties. The panel may request further information. The panel is not obliged to hold a hearing. The panel decides the application in accordance with decision-making criteria specified in the FTAA. There are limited rights of appeal on points of law.
6. Where a project is not listed and instead seeks to be referred to the fast-track, the applicant must first lodge a referral application with the Ministry for the Environment. The Ministry refers the application to the Minister for Infrastructure (“Minister”), who decides whether to refer the application to the fast-track. If the Minister decides to refer a project, it then proceeds in the same manner as a listed project.
7. For a referral application, the Minister must also:
   • Obtain and consider a report on Treaty settlements and related obligations. (FTAA s 18.)
   • If a project area includes public conservation land, obtain and consider a report that is prepared by the Director-General of Conservation. (FTAA s 19.)
8. Where a substantive application will include a land exchange, the applicant must first lodge a land exchange application with the Department of Conservation, and the Director-General must prepare a report on the land exchange application. (FTAA s 33).
9. Where approvals relating to the Conservation Act, Reserves Act, Wildlife Act or National Parks Act are sought, the Panel must obtain a report prepared by the Director-General of Conservation. The report requirements vary. (FTAA s 51) For example, for concession applications, the Director-General’s report must include information about conservation management documents and statutory land purposes. (FTAA s 51; Schedule 6, cls 4 and 43; Schedule 7 cls 3.)

Scope of the Authority’s role and time periods

10. The Minister may invite comments from the Authority on a referral application for any type of approval, pursuant to the Minister’s discretion to invite comments from “any other person” (FTAA s 17). Comments must be provided within 20 working days of receipt of the referral application.
11. The Authority must be invited to comment on:
    • A substantive application that includes an application for a concession. (FTAA Schedule 6, cl 5 and s 53(2)(m)(ii)).
    • A land exchange application, and (if the Authority has commented on the land exchange application) a draft report by the Director-General of Conservation on the land exchange application. (FTAA Schedule 6, cl 25 and s 35(1) and (5)).
    • A substantive application that includes an application to amend or revoke a conservation covenant. (FTAA Schedule 6, cl 44 and s 53(2)(m)(iii)).
    • A substantive application that includes an application for a wildlife approval. (FTAA Schedule 7, cl 4 and s 53(2)(m)(iv)).
    • A substantive application that includes an application for an access arrangement or variation to an existing access arrangement. (FTAA Schedule 11, cl 18 and s 53(2)(m) (va)).
    • Draft conditions, for any substantive application that the Authority is invited to comment on. (FTAA s 70).

12. In addition:
    • In referring a project to the fast-track, the Minister may specify persons or groups from whom a panel must invite comments. (FTAA s 27(3)(b)(iii)). This could include the Authority.
    • A Panel may invite comments from “any other person the panel considers appropriate”. (FTAA s 53(3)). This could include the Authority.
13. The scope of the Authority’s comments is not limited to the aspect of the application that triggered the requirement to comment (for example, where the Authority is invited to comment on a substantive application that includes a wildlife approval, it could also comment on the part of the application that seeks resource consents).
14. The Authority’s comments are its only opportunity to provide input, as the FTAA does not provide for evidence to be filed separately to comments and does not require that a hearing is held.
15. Timeframes are short:
    • Comments on a referral application, (FTAA s 17). substantive application (FTAA s 54). or land exchange application (FTAA s 35 (2)). must be made within 20 working days of the date of the invitation. There is no right to seek a waiver of the timeframe.
    • Comments on a draft land exchange report must be made within the time specified by the Director-General when inviting comments. (FTAA s 35(5)).
    • Comments on draft conditions must be made within a period set by the EPA when inviting comments. (FTAA s 70).

The referral application decision

1. The Minister may accept a referral application if they are satisfied that: (FTAA ss 21 and 22. See s 22(3) and (4) for additional considerations for some land exchanges).
   • a. the project is an infrastructure or development project that would have significant regional or national benefits (See FTAA s 22(2) for matters the Minister may consider in deciding whether the project would have significant regional or national benefits.); and
   • b. referring the project to the fast-track approvals process:
     • would facilitate the project, including by 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 approvals process.

The substantive application decision

17. The criteria for deciding substantive applications vary depending on the approvals sought, (FTAA ss 81 – 85). so specific consideration of the relevant criteria will be necessary. (For concessions, the criteria are in Schedule 6, cl 7. For resource consents, the criteria are in Schedule 4, cl 17. For land exchanges, the criteria are in Schedule 6, cl 29 – 33.) In general, the decision-making criteria require that the purpose of the FTAA is given the most weight. The purpose of the FTAA is to facilitate the delivery of infrastructure and development projects with significant regional or national benefits. Where a Treaty settlement2(Or the Marine and Coastal Areas (Takutai Moana) Act 2011 or Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act 2019) provides for consideration of any document, the panel must give the document the same or equivalent effect through the panel’s decision making as it would have under any relevant specified Act (eg Conservation Act). (FTAA s 82).
18. The panel’s ability to decline an approval is expressly limited to specified grounds. (FTAA s 85). The grounds include where the panel forms the view that:
    • a. there are 1 or more adverse impacts in relation to the approval sought (However, see subs 85(4): a panel may not form the view that an adverse impact meets the threshold in subsection (3)(b) solely on the basis that the adverse impact is inconsistent with or contrary to a provision of a specified Act or any other document that a panel must take into account or otherwise consider) ; and
    • b. those adverse impacts are sufficiently significant to be out of proportion to the project’s regional or national benefits, even after taking into account:
      • any conditions that the panel may set in relation to those adverse impacts; and
      • any conditions or modifications that the applicant may agree to or propose to avoid, remedy, mitigate, offset, or compensate for those adverse impacts.

Authority’s role outside the formal FTAA process

19. From time to time, an intended applicant, relevant Māori entity, or an interested party may request an opportunity to brief the Authority in relation to a project.
20. The Authority will generally agree to hear from an intended applicant or interested party (in public session) where:
    • a. Either:
      • The project requires a type of approval for which the Authority must be invited to comment; or
      • The project is likely to affect a conservation area or reserve and it seems likely that the Authority will be invited to comment; and
    • b. The substantive application for the project is expected to be lodged within 6 months; and
    • c. The Authority is able to make time during an upcoming meeting to hear from an intended applicant and/or interested party, or to schedule a separate meeting of the Fast-track Committee to hear from the intended applicant or interested party.
21. The purpose of receiving information from an applicant or interested group is to better understand the project and its perceived impacts.
22. Where the initial request to brief the Authority is made by an intended applicant, the Authority will seek to ensure it also gains an understanding of how the public interest in conservation values and Treaty obligations/cultural values, may be impacted. This could be effected by asking the relevant Conservation Board for its views, and/or by hearing from an interested party such as a local or national conservation or recreation group (if one is easily identified), and/or by hearing from relevant iwi or hapū and/or by requesting a briefing from the Department of Conservation.
23. Where the initial request to brief the Authority is made by a Māori entity or interested party, the Authority will generally invite an intended applicant to brief it (time permitting).
24. In its discretion, the Authority may choose to undertake a site visit.

Authority’s role within the formal FTAA process

25. Where the Authority is invited to comment on a referral application, it will seek to provide comment, particularly where it appears that the application is for a project that would have significant positive or adverse effects on conservation values (including recreation or heritage values) and/or Treaty obligations relating to conservation values.
26. The Authority will comment on any substantive application that it is invited to comment on.
27. The Authority will comment on all land exchange applications (and the Director-General’s report on any land exchange applications). (FTAA s 41 disapplies FTAA ss 53 to 55 (Panel to invite comments) to the part of a substantive application that relates to a land exchange.)
28. As the FTAA will in most instances result in a decision granting the approvals, commenting on draft conditions is an important step. The Authority will prioritise comments on draft conditions.
29. The Authority’s comments will address the decision-making criteria that apply to the decision it is commenting on, and will focus on:
    • The project’s eligibility to proceed under the FTAA.
    • Sufficiency of information provided by the applicant.
    • The project’s effects on conservation values (including recreation and heritage values) and Treaty obligations relating to conservation values.
    • Whether other approvals (eg heritage approval) are needed.
    • The project’s consistency with conservation planning documents (where relevant).
    • The project’s consistency with national direction prepared under the Resource Management Act 1991 (where relevant).
    • Whether the project should be declined under ss 81 – 85, and in particular whether the project will have one or more adverse impacts that are sufficiently significant to be out of proportion to the project’s regional or national benefits.
    • Appropriateness of conditions.

Committee/resourcing

30. The Authority has established a Fast-track Committee (FTC) that has responsibility on behalf of the Authority for:
    • Deciding whether to be briefed by intended applicants and interested parties, and if so hearing those briefings.
    • Deciding whether to comment on a referral application or substantive application.
    • Preparing the Authority’s comments on a referral application or substantive application.
31. The FTC can co-opt members of the Authority as required.
32. In preparing the Authority’s comments, the FTC may seek external advice (eg from a consultant with relevant technical expertise) to inform its comments. The Committee will seek advice from the servicing officers regarding the Authority’s budget before doing so.
33. The FTC will circulate a draft of the Authority’s comments on a referral application, substantive application or land exchange application/report to the full Authority and will try to provide at least 2 working days for Authority members to provide feedback on the draft comments prior to finalising and lodging.
34. The Authority has delegated decision-making responsibilities to the FTC, given the reduced timeframes for responding to an invitation to comment. Any decisions made by the FTC will be ratified at the subsequent meeting of the full Authority.
35. Authority members will keep an accurate record of time spent in relation to any Fast-track application so that the Authority can recover its costs if authorised to do so.