Simpson Grierson - Government moves to protect our most productive soils

22/09/2022·4 mins to read

Government moves to protect our most productive soils

This week, the Government released the National Policy Statement for Highly Productive Land 2022 (NPS-HPL). The purpose of this policy statement is to protect Aotearoa’s scarce supply of highly productive land from urban development. This is to prioritise certain uses of the land for agricultural, pastoral, horticultural and forestry activities, which are reliant on the availability of high quality soils. The method for identifying this land relies on the existing Land Use Capability (LUC) system that classifies rural land into 8 classes, ranging from “LUC 1” to “LUC 8”. “LUC 1” land is most appropriate for long-term agricultural production, while “LUC 8” land is most limited in its ability to be productive.

Mandatory requirement for regional councils to map highly productive land in regional policy statements (RPS)

The NPS-HPL compels every regional council to map as “highly productive land” any land that is in a general rural or rural production zone, is predominantly LUC 1, 2 or 3, and forms a large and “geographically cohesive” area.

Regional councils have the option of mapping general rural or rural production zones that are not LUC 1, 2 or 3 as highly productive land. But this may only be done if the land is or has the potential to be highly productive, taking into account its physical characteristics, soil and localised climate.

Small, discrete areas of land that are not LUC 1, 2 or 3 but are located within a large and geographically cohesive area of LUC 1, 2 or 3 may be mapped as highly productive land - presumably regardless of their physical characteristics and soil (see 3.4(5)(c)).

When mapping highly productive land, regional councils must collaborate with the relevant territorial authorities and tangata whenua.

What happens when land is mapped as highly productive?

The NPS-HPL directs that subdivision of highly productive land is avoided, except as provided for by the NPS. Specific exceptions provided for include:

Where the proposed lots will retain the long-term overall productive capacity of the subject land,
Where the subdivision is to occur on Māori land,
Where the subdivision is for specified infrastructure, defence facilities or to fulfil a functional or operational need.

Territorial authorities must also avoid the “inappropriate” use or development of highly productive land that is not land-based primary production.

Are there any exceptions to the new regime?

Land that has already been identified for future urban development (whether in a Future Development Strategy or other strategic planning document that identifies suitable urban development areas) as at 17 October 2022 must not be mapped as highly productive land (see 3.4(2)).

Small, discrete areas of LUC 1, 2 or 3 need not be included if they are separated from any large or geographically cohesive area of LUC 1, 2 or 3 land (see 3.4(5)(d)).

Land that is subject to a council initiated, or an adopted, notified plan change to rezone land from general rural or rural production to urban or rural lifestyle as at 17 October 2022 is not classified as highly productive land (see 3.5(7)(b)(i)).

Can territorial authorities rezone highly productive land?

The new regime does not stop territorial authorities from rezoning existing general rural or rural production zones to urban zones or rural lifestyle zones.

Tier 1 and 2 territorial authorities may rezone highly productive land to urban zones only if:

It is to give effect to the National Policy Statement on Urban Development 2020 NPS-UD); and
There are no other reasonably practicable and feasible options for providing at least sufficient development capacity within the same locality and market while achieving a well-functioning urban environment; and
The environmental, social, cultural and economic benefits of rezoning outweigh the long-term environmental, social, cultural and economic costs associated with the loss of highly productive land for land-based primary production, taking into account both tangible and intangible values.

Territorial authorities that are not Tier 1 or 2 may allow urban rezoning of highly productive land only if:

the urban zoning is required to provide sufficient development capacity to meet expected demand for housing or business land in the district; and
there are no other reasonably practicable and feasible options for providing the required development capacity; and
the environmental, social, cultural and economic benefits of rezoning outweigh the environmental, social, cultural and economic costs associated with the loss of highly productive land for land-based primary production, taking into account both tangible and intangible values.

Where any highly productive land is subject to long-term constraints that prevent it from being economically viable for at least 30 years, it can be subdivided, used or developed in certain cases. In this context, the applicant has to prove that the subdivision, use or development avoids any significant loss of the district’s productive capacity of highly productive land; avoids fragmenting large and geographically cohesive areas of highly productive land; and avoids/mitigates any potential reverse sensitivity effects on surrounding land-based primary production. The applicant also has to show that the environmental, social, cultural and economic benefits of the subdivision, use or development outweigh the long-term environmental, social, cultural and economic costs. Land that comes under this category may also be rezoned as Rural Lifestyle.

What does this mean for developers?

The mandatory mapping of highly productive land will impact on proposals for new land use and development activities. The inclusion of the maps in a RPS will mean that developers will not be able to seek to change those maps, that power being limited by s60(2) of the RMA to a Minister, regional council or territorial authority. As a result, if any landowner has development aspirations and disputes that their land is highly productive land, it will be important to take part in the RPS change process.

If land is mapped as highly productive land, the NPS-HPL requires councils to scrutinise more closely applications for plan changes, resource consents and subdivisions where the land is highly productive, or even potentially highly productive. The onus will be on developers to justify subdivisions, use and developments of such land.

When does this change take effect?

The NPS-HPL comes into effect 17 October 2022. Regional councils have up to 3 years to notify the mapping of highly productive land in their proposed regional policy statements. After notification, the territorial authorities must identify the highly productive land in their districts and include the mapped areas in the next appropriate district plan reviews. Territorial authorities are to notify the maps within 2 years of the regional policy statements becoming operative.

Until the regional policy statements become operative, territorial authorities and consent authorities must still apply the NPS-HPL to land that fits the criteria for highly productive land. This may mean that applicants should err on the side of caution and provide evidence whether or not the land fits the criteria for highly productive land.