Power Law Briefing: Retaining the Use of Productive Land

The Ministry for Primary Industries has now released the proposed National Policy Statement for highly productive land


Power Law Briefing: Retaining the Use of Productive Land 1

Kensington Swan – By Marija BatistichChristina Sheard or Nicky McIndoe

The proposed NPS is intended to improve the way highly productive land is managed under the Resource Management Act 1991 (‘RMA’). All going well, the NPS should address the conflict between the pressure for land for development, and the need to retain highly productive land. 

It’s about time

The proposed NPS will regulate the protection of highly productive land nation-wide. This approach will result in more certainty for both the infrastructure and development sectors, as well as primary producers.

At present, there is little guidance under the RMA on how highly productive land should be managed. Uncoordinated urban expansion has occurred over highly productive land, when less productive land may have been available for development instead. This approach has raised a number of issues, including the two key issues outlined below.

Issue one – inconsistency across districts

There is currently a ‘mishmash’ of inconsistencies in district plans throughout the country, due to a lack of guidance under the RMA. There are some recent examples where the Environment Court (and councils) have refused applications for built development on versatile land. For example, in 2016 Bunnings was refused consent because the Hastings District Plan provisions were strongly directed towards protecting rural resources. However, not all councils have such protective provisions, making it difficult for councils to refuse consent for development on such land when traffic, noise and visual effects are acceptable.

Issue two – reverse sensitivity

Reverse sensitivity has gained prominence as a significant resource management issue and the courts have recognised that reverse sensitivity can be a reason to refuse resource consent. Reverse sensitivity effects arise when a new sensitive activity locates near an existing activity with adverse effects, and then seeks restrictions on that existing activity. For example, reverse sensitivity effects occur when residential development occurs near a rural environment, and the new residents then complain about the noise of tractors, animals, haymaking at night, or rural smells. The proposed NPS aims to ensure that appropriate guidance is in place in district plans so that zoning and consent decisions are made with consideration of the potential impact on existing activities.

What is highly productive land?

Highly productive land is land for primary production that provides significant economic and employment benefits to New Zealand. Under the proposed NPS, “highly productive land” is identified using the Land-Use Capability system. This system contains eight classes of land, ranging from class 1 (most versatile), to class 8 (least versatile). “Highly productive land” is defined as the land falling into classes 1 to 3, plus consideration of other aspects such as climate, and water availability.

The proposed framework

The objective of the proposed NPS is not to provide absolute protection, but it is to protect highly productive land from “inappropriate subdivision, use and development.” Whether development is appropriate or inappropriate will be specific to each area and will be explicitly addressed in each regional and/or district plan. The proposed NPS provides some high level direction as to how this issue should be addressed. For example, when development on productive land is the only feasible option then it may be ‘appropriate’, while development which is uncoordinated and sprawling is likely to be ‘inappropriate’.

The proposed NPS also includes policies to guide decision making on plan changes to rezone land and resource consent applications for urban development on highly productive land.

What does the proposed NPS mean for you?

The proposed NPS will be national guidance that must be incorporated into district plans to regulate the use of highly productive land. Getting the NPS right is critical.

Under the new system to be introduced by the proposed NPS, if land is classed as “highly productive” it will be extremely difficult to develop, including for infrastructure. This approach is a significant change from the present, as there is currently an inconsistent approach among councils.

Whatever side of the fence you sit on (whether you’re an infrastructure provider or primary producer), you should:

Short term: Make a submission on the proposed NPS. MPI is urging the public to submit so that it has a better understanding of the scale and impact of councils’ currently inconsistent approaches to protection of highly productive soil throughout the country. MPI particularly requests feedback on:

  1. Whether the focus should be on primary production generally or more specifically on certain types of activities or food production.
  2. How much guidance should be provided on what is ‘inappropriate subdivision, use and development’. 
  3. How highly productive land should be identified and what technical assistance could be provided to councils to assist in the identification of highly productive land. 
  4. Whether the proposed NPS should apply to urban zones and areas which have already been identified by councils as future urban areas. 

Longer term: Although there will be national guidance, the proposed NPS still retains flexibility for councils to consider and respond to local circumstances. Keep an eye out for district plan changes implementing the NPS, and the identification of “highly productive land”.

Feedback on the proposed NPS is due by 10 October 2019. To read the proposed NPS and find out more information about how to submit, click here.


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