Since the passing of the revamped National Policy Statement – Urban Development (NPS-UD) (that replaced the NPS-UDC[1]), the requirement for “Responsive Planning” has opened a pandora’s box of new, extensive, out of sequence or unanticipated greenfield developments. Councils had previously maintained a level of control on these under Regional Policy Statements and District Plans.

That the Government would provide such “responsiveness” provisions was understandable, given the need to encourage additional housing stock to address what has been described as a “housing crisis”. However, use of these provisions also results in inevitable conflicts with other important considerations such as the need to protect highly-productive (a.k.a. versatile) land and soils (HPL). It could even be argued that the NPS-UD has created an uneven playing field by appearing to prioritise urban development over protecting HPL.

This may not have been the plan. Soon after the NPS-UDC came into being in 2016, work had started on promulgating a National Policy Statement to protect highly productive land (NPS-HPL). This was seen as a response to the loss of approximately 35,000 hectares of HPL to urban development since 2002. In 2019, a draft of the NPS-HPL was released for consultation and submissions. Had it not been for the disruption caused by Covid-19 in 2020, it may have been finalised sooner, possibly even together with the NPS-UD.

What effect will the NPS-HPL have?

The NPS-HPL will act as a counterweight to the impetus for new greenfield development under the NPS-UD. However, as introduced, it also represents a reasonably blunt instrument because it requires Councils to embark on a mapping exercise to clearly delineate those areas with soils that deserve and require protection.

Until that exercise is completed, the NPS-HPL classifies any land zoned “general rural” or “rural production” and mapped as Land Use Capability (LUC) 1, 2 or 3, as “HPL”, so long as it is not already identified by Councils for future urban development (i.e. has been through a planning process) or is subject to a “Council initiated, or an adopted, notified plan change to rezone it… to urban or rural lifestyle.”

Rezoning of land that is HPL where rezoning is not considered necessary (i.e. there is no alternative to rezoning) is to be generally “avoided”’.

The Supreme Court[2] has endorsed the plain meaning use of the term “avoid” to mean "not allow or prevent from occurring”. As a result, use of the term “avoid” in the context of the NPS-HPL leaves limited wriggle room. As has become the common (if circular), refrain - avoid means avoid! So, until the detailed mapping exercise is performed to more accurately define HPL, the need to “avoid” further development will likely be more widespread.

The exceptions within the NPS-HPL, that apply to deemed HPL and will continue to be relevant in the future, are limited. They also apply with subtle differences depending on whether the relevant Council is included in Tier 1, 2, or 3 (the current Tier system having been introduced under the NPS-UD). The exceptions themselves mostly relate to the need for the rezoning to enable sufficient development capacity and the absence of alternative locations to achieve that capacity on land that is not HPL. That there may be other constraints to the ability to utilise an area of HPL is also recognised as a separate exception, but the existence of those constraints and the inability to overcome them needs to be demonstrated.

This all means that proposals to subdivide or more intensively develop land that is considered HPL may be prevented or at the very least, will require closer scrutiny through the planning process.

The NPS-HPL takes effect on 17 October 2022.

[1] C = capacity.

[2] In the King Salmon decision.

Our experts

If you have any questions or concerns about how the NPS-HPL may affect your plans for your property, please contact our expert RMA team for further advice.

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