National Policy Statement for Highly Productive Land (2022)
Protecting our valuable soils: subdivisions, resource consents and plan changes that impact on highly productive land.
National Policy Statement for Highly Productive Land 2022
The National Policy Statement for Highly Productive Land (NPS–HPL) came into force on 17 October 2022. This webpage provides a summary of the NPS–HPL and advice about what applicants need to consider when submitting land use or subdivision consent applications, or private plan change requests, in rural areas on highly productive land.
The NPS-HPL is relevant to land that is Land Use Capability (LUC) classes 1, 2, and 3 based on the classification in the New Zealand Land Resource Inventory.
The objective of the NPS–HPL is to ensure that highly productive land is protected for use in land-based primary production, both now and for future generations. Therefore, the NPS–HPL will need to be addressed in rural land use and subdivision applications, and in rural private plan change requests.
NPS-HPL obligations
- Every regional council must notify in a proposed regional policy statement, using maps, all the land in its region that is highly productive land as soon as practicable and no later than 3 years from the commencement date of 17 October 2022. When the maps are operative they will be included in district plans.
- Clause 3.5(7) provides that until a regional policy statement is operative, district councils must apply the NPS-HPL as if references to highly productive land were references to land that, at the commencement date of 17 October 2022 is:
- Every district council must notify changes to objectives, policies, and rules in its district plan to give effect to the NPS-HPL as soon as practicable, but no later than two years after maps of highly productive land in the relevant regional policy statement become operative.
Timing and obligations
How Council will implement: Avoiding subdivision of highly productive land
Classification of land
The interpretation of LUC 1, 2, or 3 land in the NPS-HPL is:
‘land identified as Land Use Capability Class 1, 2, or 3 as mapped by the New Zealand Land Resource Inventory or by any more detailed mapping that uses the Land Use Capability classification’.
Council will rely on the information contained in the NZLRI mapping unless a site specific Land use capability (LUC) classification report is provided with the application. Applications will not be required to provide a LUC report unless the NZLRI database is being challenged by the applicant.
Some of the below content is derived from the guidance document entitled ‘National Policy Statement for Highly Productive Land – Guide to Implementation’, prepared by the Ministry for the Environment, dated March 2023. A full copy of this guide can be accessed here: NPS Highly Productive Land Guide to implementation March 2023.
Clause 3.8(1) of the NPS–HPL requires district councils to avoid the subdivision of highly productive land unless:
- the applicant demonstrates that the proposed lots will retain the overall productive capacity of the subject land over the long term; or
- the subdivision is on specified Māori land; or
- the subdivision is for specified infrastructure, or for defence facilities operated by the New Zealand Defence Force to meet its obligations under the Defence Act 1990, and there is a functional or operational need for the subdivision.
Interpretation:
In accordance with the Supreme Court’s findings in NZ King Salmon, “avoid” means “not allow” or” prevent the occurrence of”. This is a strong direction to Council.
Information to be included in subdivision consent applications
Subdivision may be allowed where an applicant demonstrates that the proposed lots will retain the overall productive capacity of the subject land over the long term.
Applications for subdivision consent must describe in the application how this can be satisfied. This could be met by a range of different methods, such as:
- evidence from the landowner/farmer about how the land is and can be used, including site specific constraints such as topography
- specialist technical evidence in the form of soil testing
- land use capability analysis of how the productivity of all new lots will be retained.
The assessment of productive capacity should be at a sufficient level of detail appropriate to the proposal to ensure an informed decision on the application can be reached and needs to be considered over at least a 30-year period. Where the information necessary for an assessment is not readily available to the applicant from existing or previous landowners, or where inadequate or contradictory information has been provided, then further specialist input may be requested from suitably qualified and experienced professionals. The experience and qualifications needed will depend on the particular aspect of the proposal the further information required relates to. This may, for example, include economists with expertise in agriculture, agricultural consultants, valuers, soil scientists or other land or water scientists.
Council may have information that is submitted as part of an application peer reviewed, including by seeking the advice from relevant specialists in regional councils so as to validate the information provided. Council would also prefer to review this evidence prior to lodgement of a consent to ensure it is acceptable.
While the Council may request information from the applicant, providing this information with the application when it is lodged usually results in cheaper and faster processing.
Without sufficient supporting evidence from the applicant, an application which fails to meet the requirements of the NPS-HPL may be declined.
Interpretation:
To assess whether the ‘overall productive capacity’ will be retained in the context of a subdivision application, the emphasis is on the ‘overall’ productive capacity and not just the productive capacity of the balance lot. This assessment will require the existing productive capacity of the subject land to be assessed so that an overall comparison between the existing and proposed can be made.
A full range of suitable types of land-based primary production should be considered as part of the assessment, not just the existing land-use type.
Retaining the overall productive capacity of the land over the long term means there is no loss in the potential of the subject land being used for land-based primary production, when viewed over a 30-year timeframe based on reasonably foreseeable conditions. This should include consideration of effects of the proposed subdivision and/or subsequent proposed land use on the potential land-based primary production use of the subject land, including loss of land from production through access, curtilage development, any setbacks and any changes to the size and shape of property boundaries to mitigate reverse sensitivity effects.
If the proposed subdivision means the productive capacity of the original lots are retained (that is, the likelihood for the land to be used for a particular type or range of land-based primary production has not reduced or has improved), then the test in Clause 3.8(1)(a) would be met.
The NPS-HPL deliberately does not contain direction on the size of a lot that will guarantee the productive capacity of HPL will be retained. This will be dependent on a range of factors and will vary from region to region. The determining factor is whether the site is large enough so that the predominant use of the site is land-based primary production and not residential lifestyle.
Cumulative and reverse sensitivity effects
Where the requirements of clause 3.8(1) are met, Councils must take measures to ensure that any subdivision of highly productive land:
(a) avoids if possible, or otherwise mitigates, any potential cumulative loss of the availability and productive capacity of highly productive land in their district; and
(b) avoids if possible, or otherwise mitigates, any actual or potential reverse sensitivity effects on surrounding land-based primary production activities.
Interpretation:
All subdivision applications will be assessed against these criteria and the application may be declined if the criteria cannot be met.
Different subdivision scenarios under the Waipā District Plan and how they should be approached under the NPS-HPL
| Scenario 1: An 80ha lot which proposed to be subdivided into two 40ha lots. | NPS HPL guidance advises that this test envisages
enabling:
- Subdividing a large farm into smaller lots that are still capable of being used for a particular type or range of land-based primary production (for example, the separation of a 120-ha farm into two 60-ha farms). Furthermore, the District Plan’s minimum rural lot size requirement (40ha) was established to ensure the productive potential of rural land is retained for a range of farming activities. On this basis, Council would likely support these type of subdivisions | ||
| Scenario 2: An 80ha lot, which has one additional 40ha entitlement available, and is simultaneously boundary relocated to create one 5,000m2 lot (vacant) and a residual 79.5ha lot. Does the 5,000m2 lot have to be on not highly productive soil? Could the minimum lot size drop to 2,500m2 on highly productive land? | The boundary relocated lot (minimum 5000m2
lot) should not be located on HPL.
However if the entire site is HPL, then the NPS-HPL applies and any resource consent application will need to be assessed against the objectives and policies within the NPS-HPL. Clause 3.8 provides an instance where development may be appropriate, however given the direction is to ‘avoid’, the bar is set very high, and the policy exceptions are limited. The application will need to provide evidence that they meet Clause 3.8(1)(a) - that the proposed lots will retain the overall productive capacity of the subject land over the long term. See explanation above of the requirements for meeting this test. While every resource consent application is considered on its merits, due to the strong and specific policy direction in the NPS-HPL, an application that is contrary to the NPS-HPL may be declined. | ||
| Scenario 3: An 80ha lot, which has one additional 40ha entitlement available, and is simultaneously boundary relocated to create a lot around an existing dwelling. Is an LUC required? Would the land surrounding the dwelling assumed to be modified? | The land surrounding the dwelling would be assumed to be
modified and no LUC required.
The lot size should not exceed 5000m² or extend further than the curtilage area or where existing servicing is located. For example - we would not likely support the creation of a 1.4ha lot if this extends further than the curtilage surrounding the dwelling. | ||
| Scenario 4: Surplus dwelling subdivision - One additional lot around an existing dwelling. Can we assume that the dwelling curtilage is modified, therefore no LUC required? | The land surrounding the dwelling would be assumed to be
modified and no LUC required.
The lot size should be no greater than 5,000m² or not extend further than the curtilage area or where existing servicing is located. | ||
| Scenario 5: Boundary relocation - Two titles existing with at least one dwelling on each title, with relatively equal lot areas (i.e. large farms 100ha plus each). One title will take some land from the other for their farm leaving the smallest as 40ha plus. | Whether HPL or not, this should not be
of concern as the land will still be used for productive purpose and will be a
land reshuffle for ownership purposes, then the test in Clause 3.8(1)(a) would be met.
NPS HPL guidance advises that this test envisages enabling: - Subdividing a large farm into smaller lots that are still capable of being used for a particular type or range of land-based primary production (for example, the separation of a 120-ha farm into two 60-ha farms). Furthermore, the District Plan’s minimum rural lot size requirement (40ha) was established to ensure the productive potential of rural land is retained for a range of farming activities. On this basis, Council would likely support this type of subdivision. | ||
| Scenario 6: Boundary relocation - Two titles with a dwellings on each. Each lot is approx. 20ha and one title will take some of the other, perhaps leaving a 10ha property and a 30ha property, majority of which is assumed to be on highly productive land. | If
the site is identified as HPL, then the NPS-HPL applies and any resource
consent application will need to be assessed against the objectives and policies within the NPS-HPL.
Clause 3.8 provides an instance where development may be appropriate, however given
the direction is to ‘avoid’, the bar is set very high, and the policy
exceptions are limited.
The application will need to provide evidence that they meet Clause 3.8(1)(a) - that the proposed lots will retain the overall productive capacity of the subject land over the long term. See explanation above of the requirements for meeting this test. While every resource consent application is considered on its merits, due to the strong and specific policy direction in the NPS-HPL, an application that is contrary to the NPS-HPL may be declined. | ||
| Scenario 7: Boundary relocation - Two titles with a dwellings on each with relatively equal lot areas. Perhaps one lot at 10ha and one at 5ha, one reducing to 3ha and one increasing to 12ha. Assume highly productive land. | If
the site is identified as HPL, then the NPS-HPL applies and any resource
consent application will need to be assessed against the objectives and policies within the NPS-HPL.
Clause 3.8 provides an instance where development may be appropriate, however given
the direction is to ‘avoid’, the bar is set very high, and the policy
exceptions are limited.
The application will need to provide evidence that they meet Clause 3.8(1)(a) - that the proposed lots will retain the overall productive capacity of the subject land over the long term. See explanation above of the requirements for meeting this test. While every resource consent application is considered on its merits, due to the strong and specific policy direction in the NPS-HPL, an application that is contrary to the NPS-HPL may be declined. | ||
| Scenario 8: Boundary relocation - Two titles with dwellings, one of 5000m2 and one of 5ha. 5000m2 is increased to 2ha. 5ha is decreased to 3.5ha. Assume it is on highly productive land. | Unlikely to be supported. Councils
current approach is that one lot should be the same or smaller area than the
smallest existing title.
Furthermore, if the site is identified as HPL, then the NPS-HPL applies and any resource consent application will need to be assessed against the objectives and policies within the NPS-HPL. Clause 3.8 provides an instance where development may be appropriate, however given the direction is to ‘avoid’, the bar is set very high, and the policy exceptions are limited. The application will need to provide evidence that they meet Clause 3.8(1)(a) - that the proposed lots will retain the overall productive capacity of the subject land over the long term. See explanation above of the requirements for meeting this test. While every resource consent application is considered on its merits, due to the strong and specific policy direction in the NPS-HPL, an application that is contrary to the NPS-HPL may be declined. | ||
| Scenario 9: Boundary relocation - Two existing titles with one dwelling on one title, and the other vacant. Is it correct that one lot has to be the same or smaller area than the smallest existing title for this to be acceptable under the NPS? | Council’s approach is that one lot has
to be the same or smaller area than the smallest existing title regardless of
soil composition and be reduced
in size to be as close possible to the 5000m² minimum area requirement. This
approach is supported by the District Plan objectives and policies whereby
boundary relocations shall not create a lot layout that reduces the
productivity of the land.
| ||
| Scenario 10: Boundary relocation -Two titles existing, both vacant. For high class soil, we assume that one lot has to be the same or smaller area than the smallest existing title for this to be acceptable under the NPS? If not high-class soil, then boundary relocation can occur as per the DP rules (min of 5000m2). | Council’s approach is that one lot has
to be the same or smaller area than the smallest existing title regardless of
soil composition and be reduced
in size to be as close possible to the 5000m² minimum area requirement. This
approach is supported by the District Plan objectives and policies whereby
boundary relocations shall not create a lot layout that reduces the
productivity of the land.
Furthermore, if the site is identified as HPL, then the NPS-HPL applies and any resource consent application will need to be assessed against the objectives and policies within the NPS-HPL. Clause 3.8 provides an instance where development may be appropriate, however given the direction is to ‘avoid’, the bar is set very high, and the policy exceptions are limited. The application will need to provide evidence that they meet Clause 3.8(1)(a) - that the proposed lots will retain the overall productive capacity of the subject land over the long term. See explanation above of the requirements for meeting this test. While every resource consent application is considered on its merits, due to the strong and specific policy direction in the NPS-HPL, an application that is contrary to the NPS-HPL may be declined. | ||
| Scenario 11: Transferable Development Right (TDR) Subdivision within 1km of a Residential or Large Lot Residential Zone. The District Plan disregards soil class if the site being subdivided is less than 1ha and is within 1km of a Residential or Large Lot Residential Zone. Is the NPS HPL still relevant for consideration? Is an LUC necessary. | Council
will likely support these subdivisions even if on HPL.
This could be a situation where Clause 3.10 may apply for the following reasons: - Types of constraints envisaged under this clause include Non-reversible land fragmentation. E.g.- There are an extensive amount of rural lifestyle-sized lots within the vicinity and there are no reasonably practicable options available to consolidate the land and return it to a productive use; - Potential loss of HPL within the district, and the potential impact the subdivision might have on the ability of surrounding HPL to continue to be used for land-based primary production will be insignificant; - Consideration of the environmental, social, cultural and economic impacts of a proposal. E.g. For this proposal you could discuss the benefits of transferring the subdivision right from a sensitive location to a less sensitive location and also if the EBL/TDR right has led to protection/restoration of significant bush areas; and - It is highly likely that there are no alternatives for continuing land-based primary production on the land and no LUC required. | ||
| Scenario 12: Other TDR subdivision - Is an LUC required in all cases? Noting that this forces potential lots to areas of the titles which are heavily modified soils (i.e. old farm building locations) or have other limitations such as steep slopes, wet ground etc. | Agreed that this may result in TDR lots having to be located in areas of modified soils or have other limitations such as steep topography. Also, See above for commentary around Council’s reliance on the NZLRI mapping system. | ||
| Scenario 13: Boundary relocation and then TDR - This is the theoretical boundary relocation of one existing title down to 1ha (within 1km of a residential zone), then completing a TDR within the title. | The boundary relocated lot should not be located on HPL. If the site is identified as HPL, then the NPS-HPL applies and any resource consent application will need to be assessed against the objectives and policies within the NPS-HPL. Clause 3.8 provides an instance where development may be appropriate, however given the direction is to ‘avoid’, the bar is set very high, and the policy exceptions are limited. The application will need to provide evidence that they meet Clause 3.8(1)(a) - that the proposed lots will retain the overall productive capacity of the subject land over the long term. See explanation of the requirements for meeting this test on Pages 1-2. While every resource consent application is considered on its merits, due to the strong and specific policy direction in the NPS-HPL, an application that is contrary to the NPS-HPL may be declined. In the second stage, as the productivity issue has already been addressed in the first stage of the application, there would be no need to revisit the NPS-HPL again. | ||
| Scenario 14: Environmental Benefit Lots (EBL) – Significant Natural Areas or Biodiversity Corridor. Will an LUC now be required for an EBL lot? | As the District Plan requires bush protection EBLs to be transferred off utilising the TDR provisions, these EBL lots proposed to be used on site will need to demonstrate they are not on Highly Productive Land or if proposed on land that is highly productive land, the application will need to include evidence that they meet Clause 3.8(1)(a) - that the proposed lots will retain the overall productive capacity of the subject land over the long term. Also, see Page 1 for commentary around Councils reliance on the NZLRI mapping system. | ||
| Scenario 15: Environmental Benefit Lots: Maungatautari Ecological Island (MEI) & Te Awa Cycleway. Can lots created under these provisions be located on site and on highly productive land? | Rules
15.4.2.51 and 15.4.2.53 allow one EBL lot to be located on the parent title
when it is an MEI lot, or when the EBL is derived from an incentivised Cycleway.
The District Plan requires any additional lots to utilise the TDR provisions.
For the one new lot proposed to be used on site, this will either have to be not located on highly productive land or if proposed on land that is highly productive land, the application will need to include evidence that they meet Clause 3.8(1)(a) - that the proposed lots will retain the overall productive capacity of the subject land over the long term. See explanation above of the requirements for meeting this test. However, for applications involving EBL subdivision under these provisions and are located on highly productive land, the benefits of protecting the MEI land or providing land for the cycleway access will be taken into account in assessment of the application. | ||
How Council will implement: Protecting highly productive land from inappropriate use and development
Clause 3.9(1) of the NPS–HPL requires district councils to avoid the inappropriate use or development of highly productive land that is not land-based primary production. The clause provides that all use or development of highly productive land is inappropriate unless the specific circumstances identified in clause 3.9(2) apply.
Interpretation:
Consent applicants are advised to provide information with the land use consent application on the circumstances, set out in clause 3.9(2) of the NPS-HPL, that apply to the application. Council may request further information and an application may be declined if the requirements of clause 3.9 of the NPS-HPL are not met.
Cumulative and reverse sensitivity effects
Where the requirements of clause 3.9(2) are met, Councils must take measures to ensure that any use or development of highly productive land:
(a) minimises or mitigates any potential cumulative loss of the availability and productive capacity of highly productive land in their district; and
(b) avoids if possible, or otherwise mitigates, any actual or potential reverse sensitivity effects on surrounding land-based primary production activities.
Interpretation:
Land use consent applications must provide an assessment of these criteria and may be declined if the criteria cannot be met.
Clause 3.10 - Exemptions for HPL subject to permanent or long-term constraints
This clause is only expected to apply in rare circumstances where the site is subject to ‘permanent or long-term constraints’ that mean the use of land for land-based primary production is not economically viable for at least 30 years.
There are a series of specific and stringent tests to determine whether the permanent or long-term constraint on the land justifies the HPL being used for a purpose that is not land-based primary production. Council strongly advise obtaining pre application advice as to whether it is appropriate or not to utilise this Clause.
How Council will implement: Plan changes and rezoning
Clause 3.6 of the NPS–HPL states that Waipā District Council (as a tier 1 council) may allow urban rezoning of highly productive land only if
(a) the urban rezoning is required to provide sufficient development capacity to meet demand for housing or business land to give effect to the National Policy Statement on Urban Development 2020; and
(b) 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
(c) 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, considering both tangible and intangible values.
Clause 3.7 of the NPS-HPL states that councils must avoid rezoning of highly productive land as rural lifestyle unless the specific exemption in clause 3.10 applies. This exemption applies where there are permanent or long-term constraints on the land that mean the use of the highly productive land for land-based primary production is not able to be economically viable for at least 30 years, and certain criteria are met.
Interpretation:
Private plan change requests must provide an assessment of the NPS-HPL.
Council may reject private plan change requests that are inconsistent with the NPS-HPL.
Council will not undertake rezoning of any Highly Productive Land that is inconsistent with the requirements of the NPS-HPL.
