National Policy Statement for Highly Productive Land

Overview

The National Policy Statement for Highly Productive Land (NPS HPL) came into effect on 17 October 2022. It aims to improve the way highly productive land is managed under the Resource Management Act 1991.

To do this, it directs regional and district councils to map highly productive land and put in place controls on its use, subdivision and rezoning within their plans. It also requires that local authorities consider the NPS-HPL when implementing policy more generally, as well as its interactions with the National Policy for Freshwater Management (NPS-FM) and the National Policy for Urban development (NPS-UD).

Highly productive land has a relatively complicated legal definition in the NPS HPL, but it essentially means land that is zoned rural under a plan and is identified as “highly productive for land-based primary production in that region, having regard to the soil type, physical characteristics of the land and soil, and climate of the area”. This automatically includes land that is predominantly land use capability (LUC) 1, 2 or 3 (a measure of how productive the soil is) if it forms a large and “geographically cohesive” area, although it does not include areas that have already been identified for future urban development. ⁵²⁷⁵

The NPS-HPL is made up of 4 parts: (1) preliminary provisions, (2) objectives and policies, (3) implementation directions to councils, and (4) timing and transitional provisions.

Part 1: Preliminary Provisions

Part 1 of the NPS contains provisions relating to commencement, definitions of terms used in the policy statement and material incorporated by reference.

Objectives and Policies

Part 2 of the NPS outlines its objective and policies. Its one objective is to protect highly productive lands for use in primary production both now and for future generations. It contains nine policies, which must be given effect to in council plans. Some of these require “avoidance” of particular activities. Under the RMA, this term is a strong directive.

Highly productive land is recognised as a resource with finite characteristics and long-term values for land-based primary production. ⁵²⁷⁶
The identification and management of highly productive land is undertaken in an integrated way that considers the interactions with freshwater management and urban development.
Highly productive land is mapped and included in regional policy statements and district plans.
The use of highly productive land for land-based primary production is prioritised and supported.
The urban rezoning of highly productive land is avoided, except as provided in the NPS.
The rezoning and development of highly productive land as rural lifestyle is avoided, except as provided in the NPS.
The subdivision of highly productive land is avoided, except as provided in the NPS.
Highly productive land is protected from inappropriate use and development.
Reverse sensitivity effects are managed so as not to constrain land-based primary production activities on highly productive land.

Implementation: Identification and mapping of highly productive land

Part 3 of the NPS HPL provides a non-exhaustive list of actions that local authorities must take to give effect to the NPS.

Mapping is a key element of implementation. Highly productive land must be identified by regional and district councils, and the effects on highly productive land must be managed, in an integrated way. This means considering:

How land based primary production interacts with freshwater management in the region; and
The management of this land across administrative boundaries within and between regions; and
How planning can be undertaken with a long-term focus that aims to manage the land for future generations.

Councils must involve tangata whenua in giving effect to the NPS, which includes early, meaningful consultation in accordance with tikanga. Despite this collaboration, tangata whenua are not prevented from also making submissions and appealing council decisions.

Regional councils must map highly productive land through change to their regional policy statements within three years of the NPS’s commencement, following which district councils have a maximum of 6 months to include maps in their district plans (without using the RMA’s Schedule 1 process). Councils are required to map highly productive land that is in a general rural or rural production zone, is LUC 1, 2, 3 land ⁵²⁷⁷ and forms a large and geographically cohesive area. Land identified for urban development at the commencement date of the NPS cannot, however, be mapped as highly productive.

Mapping of LUC classes relies on the New Zealand Land Resource Inventory, unless there is a more detailed source of information. Boundaries of large pieces of land should be outlined in reference to natural boundaries (edges of waterbodies) or legal non-natural bodies (roads). Small pieces of land that are not LUC 1, 2 or 3 may be included in mapping, but only if they are within a larger piece of land that is classed as LUC 1, 2, or 3. Councils are also allowed (but do not have) to map land in general or rural production zones that are not LUC, 1, 2, 3, having first considered the soil type, physical characteristics of the land and the climate of the area.

Mapping of highly productive land in regional policy statements and district plans must be updated at the next plan review to show changes to zoning, land use capability classification or anything else affecting classification of highly productive land. If highly productive land is already approved for rezoning so it is not general rural or rural production, the land is no longer classed as highly productive from the date the plan change is operative, even if it is not included in maps in an operative regional policy statement.

Until a regional policy statement with actual maps of highly productive land is made operative, councils must treat “highly productive land” as land that is zoned for general rural or rural production, is LUC, 1, 2 or 3, and IS not identified for future urban development. In this way, planning and consenting decisions are still influenced by the NPS’s policies before mapping has been completed.

Implementation: Urban and lifestyle rezoning

Although the NPS generally requires urban rezoning to be avoided in highly productive land, it makes some exceptions. Tier 1 and 2 territorial authorities ⁵²⁷⁸ can allow rezoning where the land is needed to meet demand for housing or business land under the National Policy Statement for Urban Development, as long as there are no other options to provide sufficient development capacity (in the same locality and market while achieving a “well-functioning” urban environment). ⁵²⁷⁹ To meet this exception, councils must have first considered alternative options such as intensification in existing urban areas, rezoning of non-highly productive land as urban land and rezoning highly productive land with a lower productive capacity.

Non tier-1 or 2 councils can also allow urban rezoning if the land is needed for development to meet the demand for housing or business, there are no other options for this development, and the environmental, social, cultural and economic benefit of doing so outweighs the overall loss of the highly productive land. Generally, urban rezoning must be kept at the minimum required to meet development capacity and achieve a well-functioning urban environment, so it does not expand further than is necessary.

Generally, councils are also required to avoid rezoning of highly productive land for rural lifestyle blocks, unless it falls under the exceptions in subpart 3.10 of the NPS.

Implementation: Subdivision and other inappropriate uses

Territorial authorities must also avoid subdivision of highly productive land, with some exceptions:

Where the subdivision will not lose the overall productive capacity of the land over the long term; or
Where the subdivision is on specified Māori land; or
Where it is for specified infrastructure, or for defence facilities operated by the New Zealand Defence Force.

Subdivision must avoid or mitigate any reverse sensitivity effects (where more intensive use of subdivided land creates opposition to productive rural operations that already exist in the area, which may produce noise or odour).

Aside from urban development and subdivision, the NPS HPL requires avoidance of other inappropriate uses and developments. Some are, however, allowed, including where a land use provides public access, protects indigenous biodiversity or water quality, addresses a public health and safety risk or is on specified Māori land. A full list can be found in subpart 9 of the NPS. Again, territorial authorities must avoid or mitigate reverse sensitivity effects arising from this use.

Implementation: Land with long-term constraints

Further exemptions to the avoidance policies in the NPS are found in subpart 3.10. Subdivision, use and development is allowed where land is subject to long-term constraints. Essentially, this means that land-based primary production will not be economically viable for at least 30 years. The exemption is subject to a number of conditions, including a prohibition on considering the comparative economic benefit that other forms of use and development (eg housing) would have. Before allowing an exemption, council must be satisfied that constraints cannot be addressed through other reasonably practicable options, such as using it for different kinds of primary production or improved management.

Implementation: Supporting primary production on highly productive land

The NPS is not just about avoiding activities that have adverse effects on highly productive land. It also seeks to support activities that do make use of the soil’s productivity. District councils must include plan provisions that enable the maintenance, operation, or upgrade of any existing activities on highly productive land and minimise the loss of highly productive land from those existing activities. ⁵²⁸⁰ They are to encourage activities that maintain or increase the productive capacity of the land, as long as they are not inconsistent with the RMA’s matters of national importance or the National Policy Statement for Freshwater Management.

A proposal to change the NPS HPL (to allow a pathway for new infrastructure to gain consent in areas of highly productive land, and to allow for more rural uses such as greenhouses that do not rely on the soil resource) was the subject of a government discussion document in 2023, but this has not been progressed any further at the time of writing.

Case Law

Title

Facts

Law {{im:5282}}

Balmoral Developments (Outram) Ltd v Dunedin City Council [2023] NZEnvC 59

Several appeals where the land was within a rural zone under the proposed Second-Generation Dunedin City Plan (2GP). The appellants made submissions that their land should be zoned residential or rural residential. The issue was whether the land was to be considered HPL under the NPS-HPL 2022.

“Neither a submission nor an appeal seeking an urban zone for the land has the effect of making the land subject to a council-initiated plan that zones the land urban or rural lifestyle for the purposes of the exemption in cl 3.5(7)(i)” [75]

“The commencement date of the NPS-HPL is the relevant point in time for considering whether the cl 3.5(7)(b) exemption applies” [78]

“While the objectives and policies of the NPS-HPL will be a relevant consideration when the appellants' appeals are considered on their merits, that does not “arrest” the appeal process which will proceed to a hearing and ultimate decision of the court “[80]

Regarding the transitional period: “By cl 4.1, until the NPS-HPL has been given effect to in the relevant regional policy statement, each territorial authority and all consent authorities, including the court, must apply the NPS-HPL to land within the scope of cl 3.5(7)(a) where it is not excluded by the exemptions in cl 3.5(7)(b).

There is no retrospectivity in this approach and nor is it a breach of natural justice.” [91-92] {{im:5283}}

“The commencement date of the NPS-HPL is the relevant point in time for considering whether the cl 3.5(7)(b) exemption applies” [78]

There is no retrospectivity in this approach and nor is it a breach of natural justice.” [91-92]

Balmoral Developments (Outram) Ltd v Dunedin City Council [2023] NZEnvC 59

“The commencement date of the NPS-HPL is the relevant point in time for considering whether the cl 3.5(7)(b) exemption applies” [78]

There is no retrospectivity in this approach and nor is it a breach of natural justice.” [91-92]

National Policy Statement for Highly Productive land 2022, policy 3.4
Defined in cl 1.3 as “production, from agricultural, pastoral, horticultural, or forestry activities, that is reliant on the soil resource of the land.” This raises interesting questions about rural land uses that do not rely on the soil, such as greenhouses and other indoor means of primary production.
Defined in cl 1.3, NPSHPL 2022 as “land identified as Land Use Capability Class 1, 2, or 3, as mapped by the New Zealand Land Resource Inventory or by any more detailed mapping that uses the Land Use Capability classification.”
A table of tier 1 and 2 territorial authorities can be found in the Appendix of NPS for Urban Development 2020.
The ability to develop within the same locality and market is met if it is close to a location, or for a market where additional development has been identified through the Housing Business Assessment in accordance with the NPS for Urban Development and the environmental, social, cultural and economic benefit of doing so outweighs the overall loss of the highly productive land for this use.
The meaning of “existing activity” is defined within this clause as one that is consented, designated or has been covered by a notice of requirement, or else is an existing use allowed by s 10 or s 20A of the Resource Management Act 1991.

Last updated at 9:50AM on May 21, 2024