As solar energy gains traction in New Zealand, competition for suitable development sites is growing. To be suitable for solar development, sites need to be close to transmission and distribution infrastructure, with high and consistent levels of solar irradiance. They also need to be relatively flat, with good accessibility.

Restrictions on land use can complicate the process of finding suitable sites, with uncertainty around whether councils can allow new solar developments on Highly Productive Land (HPL).

The National Policy Statement for Highly Productive Land (NPS-HPL) categorises land into eight land-use classes, with class 8 land being the least suitable for primary production and classes 1, 2 and 3 being the most highly productive land. HPL describes land that is flat or gently sloping, has the most fertile soil, and has a good climate. Much of New Zealand’s HPL is found near towns and cities, making it suitable for solar developments.

The purpose of the NPS-HPL was to prevent the incremental loss of HPL to urban rezoning, rural lifestyle blocks, and other non-agricultural or horticultural uses, protecting the soil for land-based primary production. The NPS-HPL advises councils on how to identify and map HPL, and sets out the restrictions on the subdivision, use and development of HPL.

There is some flexibility in the NPS-HPL for councils to consent activities which are not land-based primary production, but that deliver wider cultural, social, environmental and economic benefits, provided that the activities meet specific requirements. The NPS-HPL allows for the maintenance, operation, upgrade, or expansion of specified infrastructure if there is a functional or operational need for it to be on the HPL. However, the NPS-HPL does not expressly provide for the construction or development of new specified infrastructure on HPL. This has the potential to lead to several problems for infrastructure providers, including:

• Specified infrastructure providers without RMA designation rights have no apparent consent pathway to develop on HPL. This can be problematic when infrastructure needs to be developed quickly, for example, in the aftermath of Cyclone Gabrielle.
• There is a growing demand for solar energy in New Zealand. HPL is often the most suitable land for solar developments because it is flat and receives high levels of sun. The NPS-HPL has the potential to prevent the progress of such projects, even where a functional or operational need to be located on HPL can be shown.
• There is the potential for inconsistency in district plans and decision-making across the country due to the lack of clarity around new specified infrastructure.
• An amendment is also needed to align with work that is ongoing to amend national guidance to provide a consistent straightforward consent pathway for REG and associated electricity transmission.

Proposed solutions

The Ministry for the Environment has proposed two options. The first is to retain the status quo and conduct a comprehensive review of the NPS-HPL at a later date. The second option, and the Ministry’s preferred option, is to add ‘construction’ into clause 3.9(2)(j)(i), which currently only provides for “maintenance, operation, upgrade or expansion of specified infrastructure”. Option 2 will make it easier for new solar or other renewable energy developments on HPL.

The consultation paper acknowledges that solar developments limit the uses of HPL to grazing sheep under and around the panels, and that land used for solar farms is unlikely to revert to any other land-based primary productive use, given the demand for renewable energy. However, the amount of HPL needed for solar farms is predicted to be less than 1 per cent of New Zealand’s total HPL.

What will this mean for renewable energy developers?

If the NPS-HPL is changed to include ‘construction’, that does not mean that new specified infrastructure is permitted on HPL. It means that construction will be listed as an activity that is potentially ‘not inappropriate’. Consent authorities still have to minimise or mitigate the cumulative loss of HPL in their district, whether to infrastructure or otherwise.

Developers seeking consent to construct specified infrastructure on HPL will need to demonstrate that their development:

1. Meets the definition of specified infrastructure^[1]
2. Demonstrates a functional or operational need to be located on HPL
3. Minimises or mitigates any actual loss or potential cumulative loss of HPL.

Submissions on whether the Ministry for the Environment should retain Option 1 or adopt Option 2 closed on Tuesday 31 October 2023. In light of the new Government’s focus on removing barriers to new renewable energy developments, we think the Ministry is likely to adopt Option 2. We will keep you informed of developments.