High Court provides further clarity on the Fast-track Approvals Act 2024

The High Court has issued another important decision regarding the Fast-track Approvals Act 2024 (“FTAA”).

Jones v The Environmental Protection Authority [2026] NZHC 1872 concerns a judicial review and appeal regarding decisions under the FTAA for the Kings Quarry Expansion – Stage 2 Project (Project). The Project was approved by an expert panel (Panel) in late 2025.

The issues before the High Court related to project scope, namely whether a substantive application related “solely to a listed project” where it sought less than what is provided by the Project’s Schedule 2 listing; and what is required of an expert panel to achieve compliance with the FTAA’s decision-making requirements when documenting its decision.

What you need to know

All grounds of judicial review and appeal failed. The High Court found:

• Schedule 2 of the FTAA does not set an “inner limit” for substantive applications for listed projects. Applicants may apply for less than what is provided for in a project’s Schedule 2 listing – noting that this gives rise to a risk, borne by the applicant, that the reduced extent of the application may affect a panel’s findings on the extent of the project’s regional or national benefits.

  
  

• A panel is not required to make express reference in its decision to all information it has considered. It must however be sufficiently clear from its decision that it has had regard to the relevant information. A panel is also not required to make factual findings on all issues of contention – only those that it considers to be the principal issues in contention. The FTAA doesn’t demand that level of granularity.

  
  

Project scope issue

Context

The Project’s listing in Schedule 2 of the FTAA was for Stages 2 and 3 of the Kings Quarry expansion. The substantive application lodged with the EPA was for Stage 2 expansion only.

The appellants argued that because the application related to a smaller project to that listed in Schedule 2, it:

• did not relate solely to a listed project

• had substantially less benefits than Parliament had considered would be associated with the project when it decided it should be listed in Schedule 2 of the FTAA; and

• therefore, should not have been accepted by the EPA (and the Panel did not have jurisdiction to determine the application).

  
  

On this issue, the appellants relied on the decision Ngāti Kuku Hapū Trust v Environmental Protection Agency [2025] NZHC 2453 which is addressed in our previous ChanceryGreen article.

High Court decision

The High Court confirmed that Schedule 2 of the FTAA sets an outer limit for a substantive application. A substantive application cannot relate to activities outside the scope of the project as described in Schedule 2, consistent with the findings in Ngāti Kuku Hapū Trust.

However, the High Court did not consider that Schedule 2 sets an inner limit for a substantive application, distinguishing Ngāti Kuku Hapū Trust. The High Court’s reasons included:

• Project descriptions in Schedule 2 include language such as the development of “up to” a certain number of allotments.

  
  

• The FTAA anticipates that projects will be modified as they progress, as evidenced by pre-lodgement consultation requirements, and for the substantive application to describe how that consultation has informed the project. Applicants are given the opportunity to modify or withdraw parts of their application if a panel proposes to decline it, and a panel can grant some approvals in an application, but decline others.  

  
  

• If Schedule 2 set an inner limit, it would have strange and uncertain outcomes. For example, a substantive application for 99 houses, where the Schedule 2 listing is for 100 houses, would be non-compliant. That would be contrary to Parliament’s intention.

  
  

• Section 37A of the FTAA, which allows a listed project to proceed in stages, was irrelevant because despite Schedule 2 referring to “Stage 2 and 3” of the quarry expansion, there was no intention for the project to proceed in stages. The applicant had decided to pursue a single application of reduced scope.  

  
  

Overall, the High Court considered any reduction of the scope of a listed project is at the applicant’s risk. While not prevented under the FTAA, it may increase the risk an expert panel concludes the project does not have sufficient regional or national benefits to be approved.

Panel’s decision-making

Context

The appellants alleged that the Panel had failed to take into account material reports in its decision-making, in breach of its s81(2) obligation. The appellants said the matters in the reports were critical to the Panel determining the “extent of the project’s regional or national benefits” under FTAA s81(4). The appellants also alleged that the panel had breached FTAA s87, because that section required the Panel to include within its decision its findings on the matters raised in the reports.

High Court decision

The Court held that lack of express reference to the reports, or findings on the matters of contention raised, did not necessarily mean the Panel had not considered those matters in reaching its decision for s81(2) purposes.

On its review of the Panel’s decision, the Court found the Panel had adequately considered the reports. The Court cited aspects of the Panel’s decision that referenced the Panel’s having carefully reviewed the information provided by persons invited to comment, the summary of comments received, an appendix to the decision which hyperlinked the appellant’s comments and cross referenced the “associated reports”, and the decision’s benefits assessment which also made footnote reference to the appellants’ comment. The Court therefore held there was no breach of the Panel’s s81(2) obligations.

The Court also held the Panel was not required under s87 to make findings on the issues in the reports, holding that s87 does not impose an obligation for a panel to provide reasons for accepting or rejecting matters put forward by specific commentors. Instead, it requires a panel to give reasons for its decision, which must include its main factual findings on issues in contention. In this case, because the matters of contention in the reports were sub-issues only, there was no error in the Panel’s approach.

In support of the above, the Court noted that a panel’s decision-making under the FTAA is subject to the overarching principle in s10 requiring “timely, efficient, consistent, and cost-effective processes” proportionate to the function being exercised. It also cited the strict timeframes within which a panel must issue a decision under the FTAA. It considered that that if the Panel were required to provide reasons for their findings on the type of sub-issues raised in the appeal, it would have taken the Panel considerably longer to write its decision, and would cut against s10 requirements.

Comment

We consider this decision represents a pragmatic and sensible interpretation of the FTAA’s statutory requirements. It appropriately considers Parliament’s intention in enacting the FTAA as reflected in the wider statutory scheme, and recognises the practicalities of the obligations and constraints on panels making decisions under the FTAA.

Disclaimer: The Expert Panel appointed to decide the substantive application for the Kings Quarry – Stage 2 project was Chaired by Chris Simmons of ChanceryGreen.