Protecting our Highly Productive Land

NPS finally released

The long-awaited National Policy Statement for Highly Productive Land (NPS-HPL) was released this week and comes into force on 17 October 2022. 

It contains a sole objective – that ‘Highly productive land is protected for use in land-based primary production, both now and for future generations’ and is supported by 9 policies.  Those policies include that highly productive land is to be mapped and included in regional policy statements and district plans; and that rezoning and subdivision of highly productive land is to be avoided, except as provided in the NPS-HPL.

The NPS-HPL contains provisions requiring regional councils, using the Schedule 1 process, to map areas of highly productive land and include them in the RPS.  This must occur ‘as soon as practicable’ and no later than 17 October 2025.  The highly productive land they are required to map needs to meet the following criteria:

- Is located in a general rural zone or rural production zone; and
- Is predominantly LUC 1, 2 or 3 land; and
- Forms a large and geographically cohesive area. 

Land that is identified for future urban development at 17 October 2022 cannot be mapped as highly productive land.  Regional councils have the ability to map additional land in the general rural or rural production zone that is not LUC1-3 if the land is, or has the potential to, be highly productive when having regard to the soil type, physical characteristics of the land and soil and climate of the area.  Regional Councils have to undertake the mapping in collaboration with the territorial authorities and in consultation with tangata whenua (as required by the provisions) and at a level of detail that identifies individual parcels of land, or where appropriate for large sites, parts of parcels of land.

Once the mapping has been incorporated into the regional policy statement (RPS) territorial authorities need to include the same maps in their district plans within 6 months and can do so without using the Schedule 1 process. 

What happens in the meantime before mapping?

Until the mapping makes its way into the RPS, each territorial and consenting authority needs to apply the NPS by treating the following as ‘highly productive land’:

- Zoned general rural or rural production; and
- Is LUC 1, 2 or 3 land;
- But is not identified for future urban development or subject to a Council initiated or adopted notified plan change to rezone to urban or rural lifestyle. 

Urban rezoning provided for in limited circumstances

The NPS-HPL contains provisions enabling Tier 1 and 2 authorities to rezone HPL in limited circumstances where it is required to provide sufficient development capacity to meet the demand for housing or business land under the NPS Urban Development 2020.  However, that requires consideration of the range of other reasonably practicable options including greater intensification in existing urban areas and rezoning other land which is not HPL. 

There are also provisions for Tier 3 territorial authorities, although the NPS requires councils to take measures to ensure the spatial extent covering any HPL is the minimum necessary to provide the required development capacity. 

Requirements for territorial authorities to insert objectives, policies and rules in the district plan

The NPS-HPL provides mandatory requirements for territorial authorities to insert objectives, policies and rules into the district plan (using the Schedule 1 process).  These need to cover matters including:

- avoidance of subdivision of HPL unless particular criteria are met;
- protection of HPL from inappropriate use or development that is not land-based primary production;
- enabling the maintenance operation or upgrade of existing activities on HPL;
- prioritising the use of HPL for land-based primary production over other uses and encouraging opportunities that maintain or increase the productive capacity of HPL (provided they are not inconsistent with s6 RMA matters or environmental outcomes in the NPS-Freshwater Management);
- managing reverse sensitivity and cumulative effects on the availability and productive capacity of HPL.

The provisions must be inserted no later than two years after the maps in the RPS become operative. 

Commentary

Only about 15% of land in New Zealand is estimated to be HPL (using the LUC classification system) and only 1% of that is LUC1, and the tensions between sprawling urban development and protection of this vital land resource have been highlighted in Pukekohe in particular.   The NPS-HPL is important in providing policy direction to councils to take measures to protect this finite resource.  However, it still provides some leeway for councils struggling to meet development capacity demand under the NPS Urban Development. 

Growers will undoubtedly welcome the provisions around managing reverse sensitivity effects which arise from increased urban development adjacent to productive land uses.  However, there is a relatively long ‘lag time’ before those objectives, policies and rules will make their way into the district plan.  In the interim, consenting authorities need to apply the objective and policies of the NPS-HPL to the stated types of LUC 1-3 land.  In addition, it is unclear how matters such as spray drift should be managed through rules given they are regional plan (rather than district plan) issues. 
Landowners will need to be aware of the RPS process for mapping of HPL, as that will provide their opportunity to be involved in the process.  Once the RPS maps are operative, they will be brought into the district plan maps without a public process.  Landowners can enter their property details into the Manaaki Whenua database to see whether they currently fall within LUC Classes 1-3. 

https://ourenvironment.scinfo.org.nz/maps-and-tools/app/Land%20Capability/lri_luc_main

This latest NPS, along with other National Policy Statements (such as Urban Development and Freshwater Management) will be transitioned into the first National Planning Framework, which is to be required under the new Natural and Built Environment Act (with the bill anticipated to be introduced to Parliament next term (October 2022)). 

If you would like further information on the recently released NPS for Highly Productive Land, please feel free to contact a member of our team.

Updated:  21 September 2022