Fast-track to Prosperity?

• Published date: 04 March 2024
• Law Firm: Cavell Leitch
• Author: Mr Andrew Schulte

New Fast-track legislation is to be the 2nd phase of the National led Government's RM reform package ¹. It follows previous Fast-track processes: the COVID 19 Recovery (Fast-track Consenting) Act 2020 and the short-lived Fast-track process under the now-repealed Natural and Built Environment Act 2023. Will the latest move to provide for permanent Fast-tracking for significant infrastructure and development ensure prosperity, or usher further environmental decline?

Fast-track processes tend to raise specific concerns. Namely, that:

• the environment will suffer due to insufficient consideration;
• the process will remove rights to be heard on a project and,
• decisions (made centrally by a Minister) will become political.

In the previous Fast-track examples, the requirement to avoid, mitigate, or remedy adverse environmental effects, as part of sustainable management, was maintained, along with the ability for the decision-maker to decline the application in appropriate circumstances, especially where material adverse effects could not be made acceptable.

Concerns about removing the "right to be heard" were addressed by allowing affected parties the ability to make comments, though hearings were not mandatory.

These responses also served to insulate against politicisation by maintaining the independence of decision-making expert panels.

The information we currently have on the proposed new legislation may not instil total confidence in those bothered by such concerns. The new Act and process will be "standalone" which could indicate an intention to step outside some of the protections that have previously existed.

The intention is for "a 'one-stop shop' process... under a range of legislation, including the RMA" suggesting a potential for conflicts between legislation with differing purposes. Until we see the new legislation, it will not be clear whether there will be guidance for addressing such conflicts. However, given the intent of the legislation, the priority may be an approach favouring solutions that enable development.

Further, while an initial list of projects to be Fast-tracked will be included in the new Act, we are told the process may be applied to any "locally, regionally and nationally significant infrastructure and development projects [which] will be prioritised". This is a broad brush that could conceivably be applied to any activity deemed "significant". That is likely to be deliberate.

Indications are that the "Expert Panel" considering...