Environmental / Resource Management
The Shrinking Land Challenge
Do the Amendments to the National Policy Statement for Highly Productive Land 2022 Strike the Right Balance Between Enabling Renewable Energy and Indoor Food Production Projects and Protecting Highly Productive Land?
The National Policy Statement for Highly Productive Land 2022 (NPS-HPL) was amended in August 2024, with the changes taking effect from 14 September 2024. The amendments are as follows:
- Clause 3.9(2)(j) has been amended to enable any activity associated with specified infrastructure on highly productive land, provided it has a functional or operational need to locate on highly productive land.
- A new clause 3.9(2)(aa) has been inserted which provides that new and existing intensive indoor primary production or greenhouse activities are not inappropriate activities on highly productive land, provided they are managed in accordance with clause 3.9(3).
- The term “greenhouse activities” has been defined as meaning “the growing of plants inside structures that are predominantly enclosed by glass or other transparent material, regardless of reliance on the soil resources of the land”.
- "Intensive indoor primary production” is defined as meaning “primary production activities that principally occur within buildings and involve growing fungi, or keeping or rearing livestock (excluding calf-rearing for a specified time period) or poultry."
The NPS-HPL came into force on 17 October 2022. It was developed to ensure that highly productive land, which is essential for food production, is protected for use in land-based primary production for current and future generations. The objective of the NPS-HPL is:
Highly productive land is protected for use in land-based primary production, both now and for future generations.
Policy 8 of the NPS-HPL explicitly states that highly productive land is to be “protected from inappropriate use and development.” The implementation methods for the objective of the NPS-HPL and Policy 8 are set out in clause 3.9 of the NPS-HPL. Clause 3.9(1) provides that the Council “must avoid the inappropriate use or development of highly productive land that is not land-based primary production.”
In Gibbston Vines Ltd v Queenstown Lakes District Council [2023] NZEnvC 265, the Court considered Policy 8 and said at paragraph 48 that:
Pol 8 allows for some discretion in how “protection” and “inappropriate” are read. We interpret “inappropriate” with reference to the objective in cl 2.1. In essence, Pol 8 seeks to avoid subdivision that results in a loss of the capacity of highly productive land to be used in land-based primary production.
Clause 3.9(2) of the NPS-HPL specifies several exceptions. The use or development of highly productive land will be appropriate if one or more exceptions apply. The recent amendments to clause 3.9(2) of the NPS-HPL mean that specified infrastructure and indoor primary production are, with effect from 14 September 2024, deemed to be appropriate activities on highly productive land.
The Ministry for the Environment’s implementation guidance for the NPS-HPL said that intensive indoor primary production (such as poultry farming) was excluded from the definition of land-based primary production because this activity is not reliant on the soil resource of the land. The implementation guidance also said that: “[t]he intention is that intensive indoor primary production activities would be encouraged to establish on other rural land that was not HPL”. This goes to the core of Policy 8. Essentially, Policy 8 seeks to avoid use and development that results in a loss of the capacity of highly productive land to be used in land-based primary production.
A Cabinet paper proactively released by the Ministry for the Environment noted that “Since the NPS-HPL took effect, various stakeholders have raised concerns that it has restricted the development of activities that do not rely on the soil properties of HPL, but that may be necessary for social, economic, cultural, or environmental wellbeing.” The changes to the NPS-HPL are in response to those concerns. The intent of the changes is to remove consenting barriers for specified infrastructure, including renewable energy projects, intensive indoor primary production, such as indoor poultry farms and piggeries, and greenhouse activities, on highly productive land.
It remains to be seen whether these changes strike the right balance between enabling renewable energy projects (such as solar farms) and indoor primary production while protecting highly productive land for traditional land-based primary production.
The consultation on the proposed changes to the NPS-HPL had a limited scope, and several submissions addressing topics outside this scope were received. These submissions covered a range of issues, including: the removal of LUC3 soils from the definition of highly productive land; additional exemptions for non-land-based primary production activities on highly productive land; broadening the definition of land-based primary production; changes to the implementation guidance; implementation; and a definition for specified infrastructure. It is anticipated that these further issues will be grappled with next year – stay tuned for updates.
