The National Policy Statement for Indigenous Biodiversity (NPS-IB) is the latest in a recent proliferation of national direction. It reflects a growing trend of stronger environmental bottom-lines that is expected to continue under the new resource management framework. In addition to the National Policy Statement for Highly Productive Land and National Environmental Standards for Freshwater, the NPS-IB adds to the growing number of hurdles for developers and infrastructure providers.
The overarching objective of the NPS-IB is to "maintain indigenous biodiversity across Aotearoa New Zealand so that there is at least no overall loss in indigenous biodiversity after the commencement date". It is a laudable goal. However, as drafted, the NPS-IB leaves little flexibility to deliver on other matters of national importance in an efficient and integrated manner and may ultimately frustrate areas of land for development and infrastructure provision. In addition, the required approach to managing effects on indigenous biodiversity will be complex, expensive and time consuming for a range of parties, including already constrained councils.
Below we summarise the key features of the NPS-IB.
Timing for implementation / immediate implications
Although the NPS-IB requires councils to give effect to the NPS-IB as soon as is reasonably practicable, councils have five years to notify any policy statement or plan changes mapping significant natural areas (SNAs) and including relevant provisions. This is a long lead time, and one that is likely to coincide with the national planning framework / NBE planning process in some regions, which will add further cost and complexities.
However, the NPS-IB will immediately become a relevant consideration for any consenting and designation process, particularly for areas where there are SNAs (or equivalent description) on or close to a site recorded in the relevant district plan. Accordingly, even where a council hasn't gone through a plan change to implement the NPS-IB, the NPS-IB could still have significant implications.
Identification of Significant Natural Areas
Under the NPS-IB, councils are required to (amongst other things) map SNAs in each district using set assessment criteria to identify areas of significant indigenous vegetation or significant habitat of indigenous fauna that qualify as SNAs. Councils are then required to include these SNAs in their district plan. This is a significant requirement on already constrained councils, which if not undertaken properly could have major consequences for development potential and infrastructure provision.
In our view, the set assessment criteria may be problematic where applied strictly and may mean areas are inappropriately classified as SNAs, thereby frustrating development potential. The implications that stem from an area being identified as an SNA mean that users of the resource management system will need to be vigilant in keeping across the SNA mapping exercise to be undertaken by councils and may need to engage expert ecological advice in respect of that exercise. This will increase the costs associated with development in New Zealand – costs that have other implications such as affordable housing provision and timely delivery of essential infrastructure.
Effects on Significant Natural Areas
Councils are also required to amend their planning documents to require adverse effects on SNAs be avoided (except where an exception applies). There are some exceptions to the strong avoidance framework (eg for specified infrastructure). To rely on this exception (and therefore manage effects on SNAs by applying the effects management hierarchy), it needs to be established that the activity provides a significant national or regional benefit; that there is a functional or operational need for the activity in that location; and that there are no practicable alternative locations for the activity. That is a high threshold, and one which may end up frustrating efficient and effective infrastructure provision and development, particularly if there is a tendency for councils to take a conservative approach to identifying areas as SNAs across districts.
Established activities can likely continue
The NPS-IB provides that established activities affecting SNAs can be afforded protection in planning documents (provided the effects of an established activity on the SNA are no greater in intensity, scale, or character over time, and do not result in the loss of extent or degradation of an SNAs ecological integrity).
The term "established activities" is a new addition and is ambiguous, leaving open for debate whether activities that are authorised but not yet fully implemented will be afforded protection if they affect a newly identified SNA. In our view, an approach that does not afford protection to activities that are authorised but not yet fully implemented would have significant consequences for certainty around investment decisions.
Indigenous biodiversity outside SNAs and specified highly mobile fauna
The NPS-IB also requires councils to record areas outside SNAs that are highly mobile fauna areas and include planning provisions for managing adverse effects on those areas. Councils are also required to change their planning documents to ensure that adverse effects of activities on indigenous biodiversity that are outside an SNA are managed in a way that gives effect to the objective and policies of the NPS-IB.
The key challenge we see with these requirements is that they are set in the context of a rigid objective and policy framework in the NPS-IB and one which requires the maintenance of indigenous biodiversity. This fundamental concept is framed as requiring at least no overall reduction of a range of things, including the size of populations and occupancy across a species' natural range, which sets a high threshold in terms of how effects can be managed. Such a high threshold may consequentially stymy development potential on otherwise prime land for urban development and infrastructure provision.
Protecting indigenous biodiversity is a critical issue, and the Government has rightly seen the need to address it. But does the Government's response deliver a workable solution, or is it another example of a blunt policy tool resulting in greater cost, complexity and unintended consequences?
This article is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice. If you require any advice or further information on the subject matter of this newsletter, please contact the partner/solicitor in the firm who normally advises you, or alternatively contact one of the partners listed below.