With the second phase of the Government’s resource management reform now underway, we look ahead to what is proposed for renewable energy.

The Government’s view is that the current planning regime and national direction puts barriers in the way of renewable energy projects. To resolve this, the “Electrify NZ” policy seeks to double the supply of renewable energy and facilitate the investment in renewable energy [1].

The briefing for the incoming Minister for Energy identifies a new National Policy Statement for Renewable Electricity Generation (NPS-REG) as a key priority within the portfolio to address renewable energy in detail [2]. Alongside the coalition agreement that affirms an immediate review of the National Policy Statement for Indigenous Biodiversity (NPS-IB) implementation, these modifications are intended to improve the landscape for renewable energy consenting [3].

As renewable energy becomes increasingly important, the conflict between allocating land for infrastructure and preserving environmental values will need to be balanced within the existing national direction.

Competing environmental interests

Renewable energy projects, such as large-scale solar farms, require large greenfield sites for viable and operable renewable energy infrastructure. Newer national policies have sought to reconcile competing values such as biodiversity and productive land values by providing consenting pathways for appropriate development in certain circumstances.

For example, the objective of the NPS-IB is to maintain indigenous biodiversity so that there is at least no overall loss in indigenous biodiversity [4]. Renewable energy projects are recognised as a potential competing interest such that the NPS-IB states that nothing in the NPS applies to the development, operation, maintenance or upgrade of renewable electricity generation assets and activities [5].

Further, the National Policy Statement for Highly Productive Land (NPS-HPL), has the objective of protecting highly productive land for use in land-based primary production [6]. The NPS-HPL provides that the use or development of highly productive land is inappropriate, except where certain criteria are met. Renewable energy infrastructure may not be inappropriate if it has a functional or operational need to be located on highly productive land [7].

However, notwithstanding this national direction, issues relating to indigenous biodiversity and highly productive land may still prevent projects from being consented.

Case law examples

A solar farm project in Tekapo was declined resource consent, even though the applicant’s proposal included a compensation package relating to the adverse effects on indigenous biodiversity. While it was recognised that the NPS-IB did not apply to renewable energy generation applications, it was found that there was no direction under the RMA to prefer renewable energy generation over the protection of indigenous biodiversity, or to ignore current planning provisions that seek to protect significant indigenous flora and fauna. The proposal was regarded as inconsistent with lower order planning documents and would have more than minor adverse effects on biodiversity values. This decision to refuse the application is currently under appeal to the Environment Court.

Similarly, a decision on an application to vary the conditions of a land use consent for a wind farm at Taumatatotara Wind Farm considered whether the reduction in the number of turbines would mitigate the potential impact on wildlife, in particular on long-tail bats [8]. The Independent Hearing Commissioner accepted that the NPS-IB did not apply to the application because it specifically excludes renewable energy generation activities but determined that that exclusion did not apply to the biodiversity provisions of lower-order documents and that these were required to be assessed [9]. The amendments were ultimately accepted and consent granted in this case. More recently, a proposed 420 MW solar farm in the Mackenzie Basin near Twizel has been described as one of the largest ecological restoration projects ever undertaken in the area. This proposal includes an environmental restoration plan to plant half a million native plants [10]. This project may be considered under the proposed fast-track approvals legislation and it will be interesting to see how the tensions between the competing interests are addressed.

A second bill to amend the RMA is expected by the end of 2024 [11]. This is expected to deal with renewable energy and involve changes to the RMA and national direction to deliver on Electrify NZ.

Electrifying New Zealand faces the challenge of balancing infrastructure needs with the protection of indigenous biodiversity. Just how the Government’s proposed amendments will alter the balance between competing environmental values to improve the landscape for renewable energy consenting is yet to be seen. In the meantime, the case law suggests that developers should take care to address the requirements of the lower order planning documents in terms of the possible effects of their projects on biodiversity and land productivity.

Please get in touch with one of our Energy experts if you would like to know more.

Footnotes

1. National Party “Electrify NZ” (policy statement, 31 March 2023).
2. Ministry of Business Innovation and Development, “Briefing for the incoming Minister for Energy 27” ( 27 November 2023) at 67- 68.
3. New Zealand National Party and ACT New Zealand “Coalition Agreement” (24 November 2023) at 5.
4. National Policy Statement for Indigenous Biodiversity, clause 2.1(1).
5. National Policy Statement for Indigenous Biodiversity, clause 1.3(3).
6. National Policy Statement for Highly Productive Land, clause 2.1.
7. National Policy Statement for Highly Productive Land, Policy 3.9(2).
8. Decision of the Taumatatotara Wind Farm Limited Section 127 Application to Vary Resource Consent conditions (Waitomo District Council, 15 December 2023) at 4.8
9. Above, at [4.55].
10. Environment Canterbury “Far North Solar Farm Ltd (ecan.govt.nz)
11. Government unveils its plan for RMA reform (minterellison.co.nz)