The Environmental Defence Society (EDS) is warning that the Fast-Track Approvals Act 2024 (FTAA) undermines the quality of decision-making by excluding key statutory bodies from cost recovery and creating uncertainty for councils about which costs they can claim.
“EDS commissioned legal advice on cost recovery under the FTAA after repeated questions from the public about whether, and to what extent, they could recover their costs of participating in fast-track processes,” says Shay Schlaepfer, EDS Chief Operating Officer.
“The advice, prepared for EDS by public-law specialists Anderson Lloyd, confirms that Ministers, government agencies, and councils can recover their “actual and reasonable” costs for participating in fast-track processes, however there is uncertainty about what that covers and eligibility for cost recovery is limited.
“EDS considers there are significant gaps in who is eligible for cost recovery. Statutory bodies like the New Zealand Conservation Authority and Conservation Boards are not entitled to recover their costs, despite the FTAA requiring that they be invited to comment on certain applications.
“That exclusion risks deterring vital environmental input.
“The advice also highlights uncertainty around the role of councils in providing comments on individual applications.
“This may have a bearing on the extent to which councils can recover costs for technical peer reviews and expert advice necessary to prepare informed comments for decision-making panels. Given the pace and complexity of the fast-track process, councils need to be able to access technical expertise quickly and confidently.
“That is particularly important given that the FTAA, and its recently proposed Fast-track Approvals Amendment Bill, severely restricts public input. There is a heavy reliance on councils to ‘speak’ for local communities and the public interest.
“If there’s any doubt about what is recoverable, councils may limit their engagement. That is likely to mean weaker evidence and poorer decisions, increasing the chances of resultant legal challenges.
“EDS urges the Government to extend cost-recovery rights to statutory conservation bodies and to confirm the role of councils in providing comments on individual applications,” concludes Ms Schlaepfer.
EDS gives grateful thanks to Anderson Lloyd for its review of cost recovery under the FTAA.