LUCing towards the future – how can we improve the National Policy Statement for Highly Productive Land

If the National Policy Statement on Urban Development was the carrot for intensification of urban areas, then the National Policy Statement for Highly Productive Land ("NPS-HPL") was the stick. After being in development for close to a decade, the NPS-HPL finally came into force on 17 October 2022. With the NPS-HPL being with us for almost a year, we have reflected on what aspects can be refined.

The interim definition of highly productive land needs to go

The NPS-HPL directs every regional council to notify changes to their regional policy statement by October 2025 to map highly productive land in their region. Until that occurs, the NPS-HPL applies to all land zoned general rural or rural production that has a Land Use Capability ("LUC") classification of 1, 2 or 3.

While LUC classification is a useful tool for providing an initial indication of the productive capacity of land, it doesn’t take into consideration a range of other factors relevant to whether land can realistically be utilised for primary production, including:

• Whether the land forms part of a geographically cohesive area;
• Proximity of the site to conflicting land uses (and any potential for reverse sensitivity effects);
• Susceptibility to the effects of climate change, or other natural hazards; and
• The economic viability of utilising the land for productive land uses.

The NPS-HPL already allows a more contextual approach to be taken when considering mapping, consenting or rezoning of highly productive land, and these are all clearly relevant factors that can be considered in determining whether the land is appropriate for development. But we should be taking these factors into account when determining whether the NPS-HPL applies to land at the outset, not adding unnecessary complexity to what can already be drawn out, expensive consenting and plan change processes to enable development.

There's also a broader question as to whether LUC 3 soils should be included at all, either in terms of the interim protections or through mapping, on the basis that they are at the lower end of what are considered to be prime soils and do not share the same productive value as LUC 1 and 2 soils.

In many cases the NPS-HPL is operating exactly as intended - to prevent ad hoc loss of highly productive land. However, the interim definition is leading to perverse outcomes and preventing development of much needed housing on fragmented farmland that is already unviable for primary production.

Removing the interim definition of highly productive land from the NPS-HPL entirely would allow a nuanced approach to its application. Until the mapping is complete, leave it to those suitably qualified to determine the productive capability of land, based on the particular context of each site.

This is more likely to lead to outcomes consistent to what we will see once mapping is complete, while also avoiding unnecessary cost and complexity to consenting and plan change processes already fraught with both, where applicants otherwise have to demonstrate an exception to the NPS-HPL applies to land that clearly had no productive value in the first place. In the context of consenting, the NPS-HPL is but one matter to be had regard to by a decision maker, but often it is being treated as a rule prescribing a hard environmental bottom line. That is not the correct approach.

There needs to be clear direction on what primary productive uses are captured

The NPS-HPL applies to land based primary production that is "reliant on the soil resource", but it's unclear what is captured by this. That's not to suggest that a national list of primary production activities needs to be developed (looking at you, NPS-FM), but as with the interim protections, the focus needs to move away from just looking at soil quality/use when considering the productive value of the land.

This qualifier of being "reliant on the soil resource" is unnecessary and should be removed, because not all primary production activities rely on the soil in the same way. A chicken farm for example doesn't have the same needs as a vineyard, nor does a dairy farm. Even different dairy farms could vary significantly in terms of their reliance on soil resource, depending on whether animals are grass-fed. The best productive use may be one that benefits from other site features, such as climate, or good access to key transport routes (for processing and export, for example). Primary productive land uses that are not "reliant" on a soil resource are also less likely to have long term impacts on the productive capacity of the land in the long term as they do not have the same lasting impacts of urbanisation.

Will we see an NPS-HPL 2.0 with RMA 2.0?

Given the NPS-HPL is largely working as the government intended, we don't expect a significant overhaul any time soon unless we see a change of government, but if there are going to be any changes to the interim provisions they need to happen now to have any real benefit before mapping is completed. Looking forward, the recent passing of the Natural and Built Environment Act 2023 means the introduction of the first draft National Planning Framework ("NPF") is imminent, which is largely expected to incorporate the NPS-HPL as is. If the NPS-HPL itself isn't amended, there will be opportunities to seek changes to how it applies under the NBE through the NPF.

You can access article one in this series here.

You can access article two in this series here.