PHOTO - Bryce Julyan

Former NZPI Chair and current Commonwealth Association of Planners Board Trustee Bryce Julyan has been considering what the new Fast-Track Approvals Bill might mean for Planners? Bryce and Michael Sharp (Beca) share their thoughts on this topic.

The hotly discussed Fast-Track Approvals Bill is out for submissions until April 19. While we now have some idea of the process envisaged, what does this mean for planners? What does this signal in terms of the new planning paradigm? Does the ability to quickly sign-off projects override the value of an expert opinion and the “critical analysis” of a planning assessment or is the process more complex than it appears on the surface? It is clear to most involved with approvals that the biggest issue with the proposed Bill is the loss of a process that requires checks and balances and testing of opinion, particularly due to the increase in Ministerial power in decision-making. However, for planners it may mean our contributions are more important than ever.

Scheduled Fast Track Projects will need to be ‘shovel ready’

We should acknowledge the reality that a project’s acceptance into the fast-tracking schedule will provide a high degree of certainty that it will ultimately be approved – the purpose of the Bill is to facilitate delivery and development, not to sustainably manage resources.

Notably, however, the Bill provides for a short two-year lapse period to give effect to projects approved under the proposed legislation – this means the process is really suited only to those projects which are already ‘shovel-ready', rather than being useful for strategic planning, route protection or speculative investments (it also means that choosing when to lodge may itself require more consideration).

While other legislation has enabled projects of ‘national significance’ to progress, there are of course key differences to the new Bill. Key amongst these are the lack of checks and balances, such as a hearing process (the testing of expert opinions and analysis is a critical piece of the evaluation process).

For projects to reach the stage where they can be considered for processing under the fast-track system, a significant amount of planning work will necessarily have already been undertaken. After all, this Bill only fast-tracks decision-making – putting aside the risk of ‘rash’ decision-making, it still requires projects to undergo the analysis under the RMA which they would otherwise be subject to; the applications therefore should be evidenced and informed through sound assessment and robust analysis. Ministers, as the decision makers, will still rely on the information provided and recommendations from the Panel. In the face of such publicly documented analysis, the decisions will need to be based on reasoning, and consequently assessments should not be half-baked (e.g., dependent on additional assessments after lodging).

Utilising the Fast Track process will require a substantial amount of pre-lodgement preparation and assessment.

Projects determined under the fast-track pathway may require more up-front work than a “regular” application. With no hearings or later opportunities for applicants to argue their case or test evidence, the assessments provided will need to be “water-tight”. For instance, engagement and conditions, which may otherwise have been staged later in the process, may by necessity need to be completed before lodgement.

Given the intent of “fast-track” approvals, the importance of clear and compelling executive summaries will also be crucial. While applications may end up being weightier due to the need to include more evidence up-front, the essential assessments and evidence needed to inform a decision needs to be clear, well-articulated, and provided in a manner that is easily read and readily understood by Panellists and time-pressed Ministers (who have the final say).

In comparison to other statutory approvals processes, fast-track approvals will be all about the conditions.

As there will be strong anticipation that fast-track process will, ultimately, lead to the approval of scheduled projects, the key role of the expert panel will be in recommending conditions. For planners involved in applications, this means that recommended conditions will take on new significance – this may extend to explanations of the reasoning (purpose and intent) and, perhaps more importantly (with the risk these could be deleted in the final decision), an analysis detailing the consequences of choosing not to implement the recommended conditions. The ability for Ministers to unilaterally strike out conditions that they deem onerous may prompt applicants to consider drawing some elements from their condition list into the main body of their application.

The ultimate decision-making power which the Ministers will be able to wield can override the opinion and analysis provided by professional and independent experts, and consequently the importance of the expert advice provided by planners is exacerbated. Planners should be included in the process to provide independent analysis and opinion – legal counsel require independent evidence to provide legal arguments. While other specialist experts can provide independent assessment within the scope of their expertise, a planner is the professional equipped to objectively assess, weigh and recommend a comprehensive outcome to Panellists and the Ministers.

There is little value in the process without this analysis. Planners have the critical analysis skills and (as Members of the NZ Planning Institute) are bound by the ethical and professional responsibilities of the profession. As objective experts, regardless of the process for approval, a planner is equipped to objectively weigh and recommend the outcome, along with conditions necessary, to address the adverse effects and to enable the benefits of proposed activities. The recommendations we provide on the public record may become the only check on the power of this process; for decision-makers to reject or disregard considered and balanced expert advice they must risk potential challenges, potential perceptions of arrogance or hubris, and they must bear the weight of the negative consequences which may eventuate.

Does Fast Track provide the opportunity for planners to consider things from a best-practice perspective, rather than being constrained by the limits of strict policy?

Could the Fast Track system liberate planners somewhat from effects assessment to consider the outcomes? That is, could it enable consider creative new solutions and better outcomes that achieve the significant benefits sought under the proposed legislation whilst still considering all the well-beings. A robust planning analysis should consider not only adverse effects but also the outcomes and benefits of a proposal –and any mitigation and offsetting as part of that analysis should rightly inform any recommendation.

One could argue that utilising a fast-track approvals process may provide an opportunity to reorientate the planning paradigm towards the outcomes focus which the NBEA was trying to achieve. Notwithstanding the Bill potentially enabling Ministers’ to override the protections and directive policies under RMA and other legislation (afforded to environmental, cultural and social layers) if we accept that the projects scheduled to be progressed through the fast-track system will have significant regional or national benefit, then we as planners can provide the assessments and evidence that weigh up all the matters that is considerate of the competing interests, and achieves an integrated outcome albeit with trade-offs and potential mitigations. The last two years was exhausting in terms of reform but to ensure the discussion and thinking generated is not wasted and recognising the desire for a paradigm shift the next phase of reform will be even more critical.