Full steam ahead for Ports of Auckland fast-track project: first decision under the Fast-track Approvals Act 2024

Port of Auckland Limited (“POAL”) has been granted approvals under the Fast-track Approvals Act 2024 (“FTAA”) for major upgrades to its port facilities in Auckland. These approvals authorise the construction and operation of a new 330m x 27.5m wharf at the northern end of the Bledisloe Terminal, along with a 45m x 34m extension to the Fergusson North Berth to accommodate larger container ships.

The Expert Panel (“Panel”) described the Project as “generally uncontentious”. The Panel decision sets out a number of observations of relevance to future applications under the FTAA.

Weighting the purpose of the FTAA

A key principle under the FTAA is that panels, when considering substantive applications, must give the greatest weight to the purpose of the Act – to facilitate the delivery of infrastructure and development projects with significant regional or national benefits.

In considering how to apply this requirement, the Panel drew guidance from the Court of Appeal decision in Enterprise Miramar Peninsula Inc v Wellington City Council [2018] NZCA 541, which considered weighting under the Housing Accords and Special Housing Areas Act 2013 (“HASHAA”). The Panel noted that, while HASHAA established a hierarchy of criteria with different statutory weightings, the FTAA specifies only that the greatest weight must be placed on the Act’s purpose, leaving the other listed matters to have equal statutory weight.

The Panel emphasised several important principles in applying this weighting. First, giving the greatest weight to the FTAA’s purpose does not mean that other matters can be disregarded. Each statutory matter listed under the Act must be considered individually, with a proper assessment conducted before stepping back to undertake an overall balancing exercise. Second, the purpose of the FTAA does not alter the assessment of environmental effects. Environmental effects do not become less than minor simply because a project advances the Act’s objectives. Instead, what changes is the weight that may be given to those effects in the overall decision. Where adverse effects are more than minor, they may be outweighed by the Act’s purpose to facilitate nationally or regionally significant projects (or they may not) depending on the facts of the project.

Assessing regional or national benefits

The Panel considered the question of what it means for a project to have significant regional or national benefits. The FTAA does not define this phrase, so the Panel looked to the referral criteria in section 22(2) for guidance. Those matters include whether a project:

• is a priority project;

• will deliver new regionally or nationally significant infrastructure or enable the continued functioning of existing regionally or nationally significant infrastructure;

• will increase the supply of housing, address housing needs, or contribute to a well-functioning urban environment;

• will deliver significant economic benefits;

• will support primary industries;

• will support development of natural resources;

• will support climate change mitigation;

• will support climate change adaptation, reduce risks arising from natural hazards, or support recovery from events caused by natural hazards;

• will address significant environmental issues;

• is consistent with local or regional planning documents.

  
  

Interpreting undefined terms: “adjacent land” and “occupier”

The Panel addressed the meaning of “adjacent land” and “occupier” when assessing who to invite to comment under section 53, noting that neither of these terms are defined in the FTAA. It stressed that these terms must be interpreted consistently with the purpose of the FTAA and the context of the application.

The Panel rejected an interpretation that would treat land more than a kilometre away as “adjacent”, observing that this land would be well beyond the ambit of any possible effect. It considered that such an outcome would not be consistent with the purpose of the FTAA. Instead, it adopted a more practical view, finding that adjacent land included abutting property and the adjoining coastal marine area, and in some circumstances could extend to land separated only by a road, railway, or watercourse. It also limited the meaning of “occupiers” of the coastal marine area to holders of occupation permits, excluding those who simply pass through.

Discretion to invite further comment

The FTAA allows panels to seek comments from additional parties (beyond those for which invitations to comment are mandatory) but provides no guidance on how panels should exercise their discretion in respect of this. The Panel confirmed that the “special circumstances” test for notification developed under the Resource Management Act 1991 (“RMA”) is not relevant in the fast-track context. This is because the FTAA operates with a fundamentally different purpose: the process is designed to be focused and timely, with comment sought primarily from identified parties, limited rights to hearings, and very restricted appeal rights.

The Panel concluded that while the RMA allows public interest to inform whether additional parties should be consulted, the FTAA establishes that the opportunity to comment is based on status (such as being a regulator, an identified iwi authority, a neighbouring landowner, the Minister, or another administering entity) rather than on the likelihood of an adverse effect.

In exercising its discretion not to invite comment from other parties, the Panel considered a number of factors, including the purpose of the FTAA and the statutory requirement to issue a decision within a limited timeframe; the factual context of the project; the absence of novel or contentious legal or factual issues beyond what might be expected from a regionally or nationally significant project; the fact that the project was not prohibited under relevant legislation; and that the applicant had provided comprehensive technical information and undertaken thorough consultation.

Further, the Panel observed that the mandatory requirement to seek comment from a wide range of parties already ensured that all relevant information was available to support robust decision-making. There were no exceptional factors in this case that justified extending the invitation to comment beyond the statutory requirements, and the Panel stressed that mere public interest alone did not create such an exceptional circumstance.

Guidance for councils on providing comments under the FTAA

The Panel provided direction on the role of councils in the FTAA process. It emphasised that comments under section 53 of the FTAA differ from RMA section 42A reports. Under the FTAA, the expectation is that councils will provide a consolidated position, supported but not substituted by specialist reports.

In this case, the Auckland Council provided a large number of specialist comments, many of which were general in nature. The Panel suggested it would have been more useful to receive a concise summary of the issues the Council considered material, supported by targeted expert advice. It also cautioned against specialists straying outside their areas of expertise and noted that a detailed analysis of Auckland Unitary Plan rule triggers was not particularly helpful in the fast-track context where the Project was a discretionary activity (given that the FTAA excludes consideration of s104D of the RMA, meaning the Project must be considered in the same way as a discretionary activity for all intents and purposes).

Section 7 ambiguity

Section 7 of the FTAA requires all persons performing or exercising functions, powers, and duties under the Act to act consistently with obligations arising from existing Treaty settlements and recognised customary rights. However, section 7(2) clarifies that this requirement does not apply to a court or a person exercising judicial power or performing a judicial function.

The Panel noted that this creates a degree of ambiguity for its role. On one hand, the Panel could be considered to be exercising a “judicial function” when making its decision, which might suggest that section 7(1) does not apply. On the other hand, sections 82(3) and 84(1) of the FTAA explicitly direct panels to consider and apply section 7 in the context of making a decision or imposing conditions. This tension created uncertainty about whether the Panel was formally required to give effect to Treaty settlements and recognised customary rights in its decision-making.

To resolve this, the Panel decided to proceed on the basis that section 7(1) applied. The Panel noted that even if this interpretation were incorrect, its conclusion as to the outcome of the Project’s approvals would have been the same.

Considering cultural effects

The Panel recorded that many of the matters raised by iwi parties were outside the Panel’s jurisdiction and that those within scope largely related to environmental effects rather than stand-alone cultural impacts and were therefore addressed by the Panel through the environmental effects assessment.

If you have any questions about the FTAA process, please reach out to our team.