Government tightens commercial forestry regulations one week out from election

  • Legal update

    11 October 2023

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Just ahead of the General Election on 14 October, the Government has changed the country’s primary tool for managing the environmental effects of plantation forestry: The Resource Management (National Environmental Standards for Plantation Forestry) Regulations 2017 (NES-PF).

We discussed the proposed changes in our October 2022 article. Decisions on the proposals were made in June 2023 and since then the forestry sector has been waiting for the detail to drop. 

At a high-level the changes are intended to:

  • Improve management of the environmental effects of commercial forests (both exotic continuous-cover (carbon) forests and exotic and indigenous plantation forests);
  • Control the location of commercial forests to manage social, cultural, and economic effects; and
  • Improve slash and wildfire management.

We have summarised the key changes below and set out the potential implications of the two most significant changes for the forestry sector.  

The changes to the NES-PF will have legal effect from the 3 November 2023.

What’s changing?

The key changes to the NES-PF include: 

  • A new name: The standards have now been coined the National Environmental Standards for Commercial Forestry (NES-CF).
  • Inclusion of exotic continuous-cover forest: The standards will now have a broader scope to manage both exotic continuous-cover (carbon) forests and plantation forests (both exotic and indigenous) under the umbrella category of ‘commercial forests’. Previously the scope of the NES:PF only extended to plantation forests (both exotic and indigenous). 
  • More power for local authorities: The existing powers of local authorities to determine where new forests are located through their plans have been clarified.  Local authorities have also been given discretion to consider a wider range of matters in afforestation consenting decisions, including in relation to afforestation on areas of land with very high erosion susceptibility and in respect of areas determined to be outstanding freshwater bodies by Treaty of Waitangi settlement legislation.  
  • Monitoring fees for permitted forests: Local authorities now have the ability to charge for monitoring of afforestation where it is a permitted activity (and resource consent is not required). 
  • A new permitted activity condition to manage slash: A new condition has been added for harvesting activities that will require ‘sound wood’ slash (wood that can be safely lifted using harvesting equipment and transferred to a landing without degrading or breaking up) on land with high and very high erosion susceptibility to be removed from the cutover, unless it is unsafe to do so (where it is over 2m and has a diameter of over 10cm). Residual slash (of no more than 15 m3 of wood per hectare of the cutover) can be left, otherwise harvesting will require a controlled activity resource consent.
  • Changes to the permitted activity conditions for afforestation of commercial forests: 
    • The notice period for afforestation and replanting has been extended: Foresters will have more time to give notice to local authorities that they are intending to begin afforestation and replanting; the new timeframe is at least 20 working days and no more than eight months before afforestation and replanting.
    • There is a new requirement for management plans: Afforestation and replanting management plans from foresters that show how they will meet the NES-CF requirements are required. They must be provided to local authorities on request.
    • There is a new requirement to provide wilding tree risk scores: Foresters will be required to provide the working calculations with wilding tree risk scores to local authorities (both regional and territorial authorities) and an assessment of each element of wilding tree risk for each relevant area of forest. This provision will take effect from 3 April 2024. 
We comment further on the implications of the two most significant changes below:
  • Expanding the NES-PF to include exotic continuous-cover (carbon) forests; and 
  • Providing local authorities with more power to determine where new commercial forests are located through their plans.
The NES-PF (now NES-CF) will be expanded to include exotic continuous-cover (carbon) forests 

Continuous-cover (carbon) forests were previously not subject to the NES-PF. It was up to local authorities to implement rules and standards relating to the management of exotic carbon forestry in regional and district plans, but few authorities have done so, and existing plan rules generally do not anticipate carbon farming. 

The scope of the NES-CF has been broadened to now include both exotic continuous-cover (carbon) forests and plantation forests (both exotic and indigenous), which will collectively be considered “commercial forests” under the NES-CF and subject to the same regulations. 

The NES-CF has defined ‘exotic continuous cover’ forest as at least 1 hectare of continuous cover of exotic forest species permanently planted; and including all associated forestry infrastructure. Exotic continuous-cover forest must not be harvested, or only subject to ‘low intensity harvesting’ where a minimum of 75% canopy cover (of 1 hectare) is always maintained. Indigenous-cover forestry has been deliberately left out of the regulations.

The addition of this forestry category to the NES-CF will mean more regulatory oversight by local authorities. The impact of these changes will be felt more strongly by those looking to invest in land and/or seedlings for exotic continuous-cover forests, who will be further incentivised to reconsider the planting of indigenous forest instead.  

Local authorities will have more power to determine where new commercial forests are located

Currently, rules in local plans can be more stringent than those in the NPS-PF, including to manage effects relating to freshwater and the coastal marine area.  

The NES-CF clarifies that local authorities may introduce more stringent or lenient rules in their local plans than those set out in the NES-CF to control afforestation of commercial forestry.   

The Ministry for the Environment has emphasised that a primary purpose of implementing changes to the NES-CF is to enable local authorities to make choices guided by community input. 

Any new rules introduced by local authorities to control afforestation at a local level will be introduced in plans through the usual plan making processes, which could take months to years to implement.
For the forestry sector, the implications of more localised planning rules may mean:

  • Differences between regions and/or districts about where commercial afforestation can occur as different local authorities may take different approaches controlling afforestation – this may add complexity from a consenting, development and forestry management perspective;
  • Potentially more stringent regulation of commercial forestry land use and more complex framework to navigate and manage compliance; and
  • Potentially, as a result of the above changes, increased compliance costs. 

On the counter, those who prefer a more bespoke and localised approach to afforestation will welcome the change.

If you have any questions regarding how the changes to the NES-CF may affect your forestry activities, please reach out to one of our experts. 

This article was co-authored by Imogene Jones, Solicitor, and Holly-Marie Noone, Senior Solicitor, in our Environment team.