National Policy Statements

What are national policy statements?

National policy statements (often referred to as NPSs) enable central government to prescribe objectives and policies for matters of national significance which are relevant to achieving the sustainable management purpose of the Resource Management Act. 589  It is important to note that matters of national significance may include matters outside the matters of national importance listed in section 6 of the Resource Management Act.

The only mandatory national policy statement is the New Zealand Coastal Policy Statement with is prepared by the Minister of Conservation. 590  Other national policy statements are optional and are prepared by the Minister for the Environment.

The Resource Management Act does not prescribe the content of national policy statements (with the exception of the New Zealand Coastal Policy Statement – see below) but provides that they may incorporate standards, requirements or recommended practices of national or international organisations and other countries or jurisdictions and any other written material that deals with technical matters and is too large or impractical to include in the standard. 591

Section 58 prescribes the content of New Zealand Coastal Policy Statements and provides that such statements may state objectives and policies in order to achieve the sustainable management purpose of the Resource Management Act in relation to the coastal environment, including: 592

  • National priorities for the preservation of the natural character of the coastal environment of New Zealand
  • The protection of the characteristics of the coastal environment of special value to tangata whenua
  • Activities involving the subdivision, use, or development of areas of the coastal environment
  • The Crown's interests in the coastal marine area
  • The activities that are required to be specified as restricted coastal activities
  • The implementation of New Zealand's international obligations affecting the coastal environment
  • The procedures and methods to be used to review the policies and to monitor their effectiveness
  • National priorities for maintaining and enhancing public access to and along the coastal marine area
  • The protection of protected customary rights

The Supreme Court considered the permissible scope of policy statements in Environmental Defence Society Inc v The New Zealand King Salmon Company Ltd [2014] NZKS 38. It said:

  • A policy statement (or plan) may give primacy to the protective element of sustainable management;
  • Outright avoidance (that does not allow for remediation or mitigation) is a response which is legitimately available under the RMA;
  • Policies can have the effect of rules, for example they may ‘contemplate the prohibition’ of particular activities. Although policies are not directly binding on individuals, they are directly binding on plans which create consenting requirements. 593

What is the effect of a national policy statement?

National policy statements guide subsequent decision-making under the Resource Management Act at the national, regional and district levels and can therefore significantly affect resource management practices in New Zealand.

Regional policy statements, regional plans and district plans are all required to give effect to all national policy statements. 594

The phrase “give effect to” means “implement”. It is a strong directive that creates a firm obligation on the part of those subject to it. 595  In a practical sense, the requirement will be more prescriptive if the document to be given effect to is framed in a specific and unqualified way (such as policies 13 and 15 of the NZCPS). 596

The requirement to “give effect to” national policy statements means that national policy statements are more than a “[list] of potentially relevant considerations, which will have varying weight in different fact situations”. 597  An “overall judgment” approach cannot be applied to the question of whether a plan gives effect to a national policy statement and policies in national policy statements may provide environmental bottom lines. 598

The Supreme Court has confirmed that there is no need to refer back to Part 2 of the RMA when determining if a plan gives effects to a national policy statement unless: 599

  • the validity of the national policy statement is challenged;
  • the national policy statement does not “cover the field” (the relevant issue is not addressed); or
  • there is uncertainty as to the meaning of the document (this will be rare, for example in the case of the NZCPS reference to the objectives should enable a clear interpretation).

The Supreme Court has observed that there are a number of reasons why decision-makers must give effect to national policy statements without referring back to Part 2, including:

  • The hierarchical scheme of the RMA 600
  • National policy statements allow central government control over local decisions 601
  • National policy statements translate the general principles in Part 2 into more specific objectives and policies 602
  • Policies in national policy statements use varying language, with some policies being more prescriptive than others 603
  • National Policy Statements are developed through a “rigorous process of formulation and evaluation” 604
  • An “overall judgment” approach creates uncertainty 605
  • Environmental protection is an element of the concept of sustainable management 606

A national policy statement can direct councils to amend policy statements and plans to include specific objectives and policies or to give effect to an objective or policy contained in the national policy statement. 628  Such amendments are required to be made without going through the public notification and hearing process and have immediate legal effect. 629  

The local authority must also make all other amendments required to give effect to any provision in a national policy using the public notification and submission process set out in Schedule 1. 630   Such amendments must be made “as soon as practicable”, or within a time frame, or before an event specified in the national policy statement. 631

Consent authorities must also have regard to any relevant national policy statement when considering an application for a resource consent 632  or water conservation order 633  and a requirement for a designation 634  or heritage order. 635  A local authority must take any other action specified in the national policy statement. 636

How are national policy statements prepared?

The only mandatory national policy statement is the New Zealand Coastal Policy Statement with is prepared by the Minister of Conservation. 607 Other national policy statements are optional and are prepared by the Minister for the Environment.

In determining whether it is desirable to prepare a national policy statement, the Minister for the Environment may have regard to: 608

  • The actual or potential effects of the use, development, or protection of natural and physical resources
  • New Zealand's interests and obligations in maintaining or enhancing aspects of the national or global environment
  • Anything which affects or potentially affects any structure, feature, place, or area of national significance
  • Anything which affects or potentially affects more than 1 region
  • Anything concerning the actual or potential effects of the introduction or use of new technology or a process which may affect the environment
  • Anything which, because of its scale or the nature or degree of change to a community or to natural and physical resources, may have an impact on, or is of significance to, New Zealand
  • Anything which, because of its uniqueness, or the irreversibility or potential magnitude or risk of its actual or potential effects, is of significance to the environment of New Zealand:
  • Anything which is significant in terms of section 8 (Treaty of Waitangi)
  • The need to identify practices (including the measures referred to in section 24(h), relating to economic instruments) to implement the purpose of this Act

If the Minister considers it desirable to prepare a national policy statement the Minister must first seek and consider comments from relevant iwi authorities and other persons and organisations that the Minister considers appropriate. The Minister must also prepare an evaluation report for the proposed national policy statement (in accordance with section 32) and have particular regard to that report when deciding whether or not to notify the statement. 609

After preparing a proposed national policy statement the Minister is required to choose a process for evaluation of the statement. The Minister may consider any relevant matter when determining which process to adopt, including the advantages and disadvantages of having the national policy statement made quickly, the extent to which the proposed policies differs from policies in other relevant documents such as regional, district plans and national environmental standards, and the extent and timing of public debate and public consultation on the proposal. 610

The first available process is the board of inquiry process which includes the following steps: 611

  • The Minister appoints a board of inquiry; 
  • The board of inquiry notifies the proposed national policy statement and calls for submissions;
  • Any person may lodge a submission before the closing date;
  • The board of inquiry holds a public hearing at which any person who has made a submission may speak and call evidence;
  • After considering the submissions and other relevant information, the board of inquiry prepares a written report and recommendations for the Minister;
  • The Minister undertakes a further evaluation of the proposed national policy statement in accordance with section 32AA;
  • The Minister considers the report and recommendations and further evaluation, and may change the proposed national policy statement and/or recommend approval to the Governor General in Council; and
  • Alternatively, the Minister may withdraw all or part of a proposed national policy statement at any time before the statement is approved. 

The second available process is one which is established by the Minister and includes: 612

  • The public and iwi authorities are notified of the proposed national policy statement;
  • The public are given adequate time and opportunity to make a submission;
  • A report and recommendations is prepared for the Minister on the submissions and subject matter of the national policy statement;
  • A further evaluation of the proposed national policy statement in accordance with section 32AA  is prepared for the Minister;
  • The Minister considers the report and recommendations and further evaluation, and may change the proposed national policy statement and/or recommend approval to the Governor General in Council; and
  • Alternatively, the Minister may withdraw all or part of a proposed national policy statement at any time before the statement is approved. 

There must be a New Zealand Coastal Policy Statement at all times. If the Minister of Conservation is proposing to prepare, issue, change, review, or revoke a New Zealand Coastal Policy Statement the Minister must choose one of the two processes set out above. 613

What national policy statements are there?

The following national policy statements are currently in force:

  1. Section 45 Resource Management Act 1991

  2. Section 57 Resource Management Act 1991

  3. Section 46B Resource Management Act 1991

  4. See DLA Phillips Fox ‘The King Salmon decisions and direct referral regulations out for consultation’ (21 May 2014) 

  5. Sections 62(3), 67(3) and 75(3) Resource Management Act 1991

  6. Environmental Defence Society Inc v The New Zealand King Salmon Company Ltd [2014] NZKS 38 at [77]. See also Clevedon Cares Inc v Manukau City Council [2010] NZEnvC 211

  7. Environmental Defence Society Inc v The New Zealand King Salmon Company Ltd [2014] NZKS 38 at [80]

  8. Environmental Defence Society Inc v The New Zealand King Salmon Company Ltd [2014] NZKS 38 at [83]

  9. Environmental Defence Society Inc v The New Zealand King Salmon Company Ltd [2014] NZKS 38 at [132]

  10. Environmental Defence Society Inc v The New Zealand King Salmon Company Ltd [2014] NZKS 38 at [85] and [88]

  11. Environmental Defence Society Inc v The New Zealand King Salmon Company Ltd [2014] NZKS 38 at [90]

  12. Environmental Defence Society Inc v The New Zealand King Salmon Company Ltd [2014] NZKS 38 at [86]

  13. Environmental Defence Society Inc v The New Zealand King Salmon Company Ltd [2014] NZKS 38 at [90]

  14. Environmental Defence Society Inc v The New Zealand King Salmon Company Ltd [2014] NZKS 38 at [127]

  15. Environmental Defence Society Inc v The New Zealand King Salmon Company Ltd [2014] NZKS 38 at [152]

  16. Section 57 Resource Management Act 1991

  17. Section 45 Resource Management Act 1991

  18. Section 46 Resource Management Act 1991

  19. Section 46A(2) Resource Management Act 1991

  20. Section 47 to 52 Resource Management Act 1991

  21. Section 46A Resource Management Act 1991

  22. Section 55(2) Resource Management Act 1991

  23. Section 55(2A) Resource Management Act 1991

  24. Sections 55(2B) and 55(2C) Resource Management Act 1991

  25. Section 104(1)(b)(iii) Resource Management Act 1991

  26. Section 207(c) Resource Management Act 1991

  27. Section 171(1)(a)(i) Resource Management Act 1991

  28. Section 191(1)(d) Resource Management Act 1991

  29. Section 55(3) Resource Management Act 1991

  30. Section 58 Resource Management Act 1991

  31. Environmental Defence Society Inc v The New Zealand King Salmon Company Ltd [2014] NZKS 38 at [90]

  32. Environmental Defence Society Inc v The New Zealand King Salmon Company Ltd [2014] NZKS 38 at [137]

  33. Section 57 Resource Management Act 1991

  34. Section 55(2D) Resource Management Act 1991

Last updated at 3:15PM on January 4, 2018