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New Zealand’s Specialist
Project Lawyers

There is a marked difference

in the way Greenwood Roche operates. From the outset we have focused on clearly defined specialist areas, retaining highly respected legal experts in each field. We then take that further; ensuring clients have direct and regular access to the most senior partners and lawyers, in a cost efficient manner.

Close contact with experts and clear cost advantages

We advise on a range of significant public and private sector projects. To ensure our specialists are always where they’re needed, we operate as one office with hubs in Auckland, Wellington & Christchurch.

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Recent Projects

Projects

New Gas Transmission Access Code

Brigid McArthur and Will Hulme-Moir have recently acted as independent counsel to...

New Gas Transmission Access Code

Recent Projects

New Gas Transmission Access Code

New Gas Transmission Access Code

Brigid McArthur and Will Hulme-Moir have recently acted as independent counsel to the gas industry co-regulator, Gas Industry Company Limited, on approval of a new Gas Transmission Access Code.


The GTAC governs the terms of access to the high pressure North Island gas transmission pipeline systems owned by First Gas Limited, previously known as the Vector and Maui pipelines.  Access to these pipelines has since the early 2000s been governed by separate industry codes.  This separation has created operational inefficiencies particularly around capacity reservations, offtake management, gas balancing, reconciliation and liability for non‑specification gas, amongst others.  With the pipelines now under common ownership has come the opportunity for a rationalisation and reset in accordance with the Gas Act objectives.

Gas Industry Co’s sanction of the new GTAC as “materially better” than the existing codes, comes after a lengthy period of engagement, consultation and extensive debate between different sectoral levels.  The industry is presently engaged in IT systems and implementation processes.


Specialist expertise

Key lawyers involved

Similar projects
Tariki, Waihapa, Ngaere petroleum production assets and infrastructure

Recent Projects

Tariki, Waihapa, Ngaere petroleum production assets and infrastructure

Tariki, Waihapa, Ngaere petroleum production assets and infrastructure

Greenwood Roche advised L&M Energy on its acquisition of a 50% stake in the Waihapa Production Station and related petroleum producing and infrastructure assets. This was a joint acquisition with New Zealand Energy Corp.


Specialist expertise

Key lawyers involved

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Construction begins on new $40 million Invercargill hotel

Lauren Semple and Sam Hutchings recently assisted the Invercargill Licencing Trust...

Construction begins on new $40 million Invercargill hotel

Recent Projects

Construction begins on new $40 million Invercargill hotel

Construction begins on new $40 million Invercargill hotel

Lauren Semple and Sam Hutchings recently assisted the Invercargill Licencing Trust in obtaining resource consent to construct a new 8 level, four and half star hotel on the corner of Dee and Don Streets in the heart of Invercargill City. The demolition and construction process now underway.


The new building has been designed by Warren and Mahoney and is a nod to the historic built fabric of the area, while providing for a new iconic and forward looking landmark to invite residents and visitors into the inner city.

Along with 80 guest suites, the development includes a restaurant, café, bars and a function room to create a thriving space for both guests and local residents alike to assist in the on-going rejuvenation of Invercargill, helping to achieve a key purpose of the Southland Regional Development Strategy.

Given the historic nature of the inner city, a key element of the project was ensuring that the overall heritage values of the previous corner building on the site were retained in the wider Invercargill. This was achieved through volunteered resource consent conditions, including the establishment of a public heritage fund to assist with the upkeep of other Invercargill heritage buildings. Also included was a condition that the new hotel name pays homage to the history of the site. A public competition is now underway to choose a name that reflects the heritage of the area. Entries can be made by emailing newhotel@ilt.co.nz or submitting entries via the Invercargill Licencing Trust facebook page.

 


Specialist expertise

Key lawyers involved

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Central Interceptor Tunnel Project

Greenwood Roche is assisting Watercare with this significant project designed to...

Recent Projects


Central Interceptor Tunnel Project

Greenwood Roche is assisting Watercare with this significant project designed to ensure there is sufficient capacity in Watercare’s wastewater network to meet planned population growth and development in Auckland and prevent overflows into the waterways and harbours.


The Central Interceptor is a wastewater tunnel that will run between Western Springs and the Mangere Wastewater Treatment Plant. The tunnel will run underground for 13 kilometres and will be at a depth of between 22 and 110 metres.  Along the route it will connect to Watercare's existing wastewater network, which will divert flows and overflows into the tunnel.

Hadleigh Yonge is leading Greenwood Roche’s team which is advising Watercare on various aspects of this project, including providing strategic advice, negotiating and acquiring property rights, and advising on and dealing with issues relating to compensation.


Specialist expertise

Key lawyers involved

Similar projects
Electricity upgrades

Recent Projects

Electricity upgrades

Electricity upgrades

The national electricity grid is owned by the State-owned enterprise, Transpower New Zealand, with lower voltage distribution lines owned by a range of locally and publicly owned entities.


Greenwood Roche advises Transpower on all property aspects relating to the national grid including the new 400kV-capable transmission line between Whakamaru, in south Waikato, and Auckland.


Specialist expertise

Key lawyers involved

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Major new transmission line

Recent Projects


Major new transmission line

Transpower is currently constructing the new 220kV transmission line connecting Wairakei and Whakamaru, assisting with the development of renewable electricity generation around Taupo.


Greenwood Roche has acted for Transpower on the acquisition of property rights for this project. Our work has included the acquisition of easements, Maori land issues, advice on compulsory acquisition rights, emissions trading issues and compensation entitlements.


Specialist expertise

Key lawyers involved

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Northern Interceptor and North Harbour No. 2 Pipeline Projects

Recent Projects


Northern Interceptor and North Harbour No. 2 Pipeline Projects

Greenwood Roche is assisting Watercare with these two strategic pipeline projects designed to enable Watercare to keep up with the proposed growth in the northwest of Auckland.


These two projects are estimated to cost Watercare $800 million. The Northern Interceptor wastewater project will be constructed in various stages with construction to begin soon on stage one to service the growth areas in Massey North, Whenuapai, Hobsonville, Kumeu, Huapai and Riverhead. The North Harbour No.2 watermain will service the new Albany reservoir and will replace the existing watermain which cannot be maintained without disrupting local water supplies.

Hadleigh Yonge is leading Greenwood Roche’s team which is advising Watercare on all aspects of these projects, including providing strategic advice, negotiating and acquiring property rights, and advising and dealing with issues relating to compensation.


Specialist expertise

Key lawyers involved

Similar projects
Watercare’s North Shore Trunk Sewer 8

Recent Projects


Watercare’s North Shore Trunk Sewer 8

Watercare Services Limited is responsible for providing water and wastewater services to the greater Auckland region and is undertaking a number of projects to increase its infrastructure network.


Greenwood Roche is advising Watercare on the construction of a significant new wastewater pipeline in the Northcote area. The project affects a number of properties including private and various forms of public land.  Our work has included the acquisition of property rights to enter and construct the works, and issues relating to compensation.


Specialist expertise

Key lawyers involved

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Waipa Networks’ new transmission line

Recent Projects


Waipa Networks’ new transmission line

Waipa Networks has identified the need to construct a new 110kV transmission line to increase the security and reliability of electricity supply to Te Awamutu and the surrounding areas.


We are advising Waipa Networks on this project. Our work has included strategic advice, acquisition of land property rights, Maori land issues, and advice on compulsory acquisition rights and compensation entitlements.


Specialist expertise

Key lawyers involved

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Watercare’s North Shore Trunk Sewer 8 Waipa Networks’ new transmission line

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Otakaro - Te Pae Christchurch Convention Centre

Te Pae, meaning “a gathering place” in te reo Maori, is a highly anticipated...

Recent Projects


Otakaro - Te Pae Christchurch Convention Centre

Te Pae, meaning “a gathering place” in te reo Maori, is a highly anticipated anchor project being developed by Otakaro.  It will be a world class convention and exhibition facility neighbouring Cathedral Square in the heart of Christchurch.


Greenwood Roche has assisted Otakaro with various property aspects relating to the Convention Centre.


Specialist expertise

Key lawyers involved

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Environmentally-friendly transport initiatives in Christchurch

Greenwood Roche assisted Christchurch City Council in launching and supporting the...

Environmentally-friendly transport initiatives in Christchurch

Recent Projects

Environmentally-friendly transport initiatives in Christchurch

Environmentally-friendly transport initiatives in Christchurch

Greenwood Roche assisted Christchurch City Council in launching and supporting the city’s recent environmentally-friendly transport initiatives intended to support sustainable multi-modal journeys, and complement and enhance the region’s existing public transport network. 


The initiatives comprise the introduction of the shared electric car fleet with Yoogo, a proposed public bike share system, and Lime’s e-scooters.

Christchurch City Council has partnered with a range of leading public and private sector organisations with a view to promoting the physical health of its residents, reducing the negative impacts that traditional transport options have on the environment, and reducing the number of cars on Christchurch roads.

Greenwood Roche’s team, led by James Riddoch, worked with Christchurch City Council to prepare the legal framework to support these projects, including advising Council on procurement matters, negotiating the commercial terms with the suppliers, and advising Council in relation to the required permits to allow these businesses to operate in the city.


Specialist expertise

Key lawyers involved

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The development of the Redhills area

Greenwood Roche is assisting Watercare deliver an improved wastewater network to...

Recent Projects

The development of the Redhills area

The development of the Redhills area

Greenwood Roche is assisting Watercare deliver an improved wastewater network to enable the development of the Redhills area.


Watercare is working with various interested parties to deliver improved wastewater services to enable the Redhills area to be extensively developed with the introduction of close to 10,000 residential properties.

Hadleigh Yonge is leading Greenwood Roche’s team which is advising Watercare on aspects of this project, including providing strategic advice, negotiating and acquiring property rights, and advising on and negotiating infrastructure funding agreements.


Specialist expertise

Key lawyers involved

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Northern Corridor Improvements Project

Greenwood Roche is assisting Align Limited to secure land for the development of...

Recent Projects


Northern Corridor Improvements Project

Greenwood Roche is assisting Align Limited to secure land for the development of the NZ Transport Agency’s Northern Corridor improvement works.


The Northern Corridor Improvements Project is part of the Government’s accelerated package of transport infrastructure improvements for Auckland and includes the upgrading of the connection between State Highway 1 and State Highway 18, the extension of the Northern Busway and additional lanes on State Highway 1.

Hadleigh Yonge is leading Greenwood Roche’s team which is advising on aspects of this project, including negotiating and acquiring property rights, and advising on and dealing with issues relating to compensation.


Specialist expertise

Key lawyers involved

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AA Insurance secures new premises in Auckland

Antonia Shanahan and Jimmy Tait-Jamieson advised AA Insurance Limited in respect...

AA Insurance secures new premises in Auckland

Recent Projects

AA Insurance secures new premises in Auckland

AA Insurance secures new premises in Auckland

Antonia Shanahan and Jimmy Tait-Jamieson advised AA Insurance Limited in respect of the relocation of its New Zealand head office to a new build in Sale Street, Central Auckland, as the anchor tenant of the building. 


The project involved significant negotiation with a prominent New Zealand developer, resulting in a number of transaction agreements, which included careful risk mitigation measures to remove leasetail issues.  Multiple parties were involved in the transaction with the property being sold to an overseas buyer before completion of the building by the developer. The transaction resulted in a new premises that aligned with the company’s values, and included an innovative and energy efficient design and flexible working space with light and views across Auckland city.


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News & Insights

Insights

National Planning Standards

On 5 April 2019, the Minister for the Environment released the long awaited National...

National Planning Standards

News & Insights

National Planning Standards

National Planning Standards

On 5 April 2019, the Minister for the Environment released the long awaited National Planning Standards as part of his keynote speech at the NZPI Conference.  The standards were gazetted on 5 April 2019 and take effect on Friday 5 May 2019.


In our previous article we provided an overview of the draft National Planning Standards where we accepted that the principle of standardisation had merit but raised concerns about the practicalities of implementing a one sized fits all approach.

That view was shared by many submitters during the consultation period with a total of 201 submissions made on the draft standards (57 submissions were made by local authorities and 70 by business/industry).  Of those submissions, two-thirds reportedly expressed support in principle or in part for the planning standards, however almost all submissions requested changes.

The resultant changes are significant and we think they will provide real assistance in implementation.  Some challenges will of course remain as is to be expected in a procedural shift of this nature but overall we are hopeful the advantages of standardisation will outweigh the teething pains.  Of course with implementation over an extended period, it will be some considerable time before a judgement on that matter can be made.

Read our full review here - https://app.box.com/s/8678u515gbxxt0vq5luby3rg1pa0lccp


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Significant %NBS downgrades loom for some buildings

A seismic event in NZ’s property market occurred in November last year. More like...

News & Insights

Significant %NBS downgrades loom for some buildings

A seismic event in NZ’s property market occurred in November last year. More like a slow slip quake than a sudden jolt, the November 2018 update to the guidelines for seismic assessment of existing buildings went largely unnoticed by many in the property industry. The effects, however, are now beginning to be felt, with the recent closure of Wellington Central Library and the assessment of its floors at just 20%NBS being one of the first publicly visible signs.


To appreciate what has happened and where this will lead, it’s helpful to first understand the legal and engineering framework within which seismic assessments of buildings are made. The starting point here is the guidelines for The Seismic Assessment of Existing Buildings (Guidelines), which detail the technical basis on which engineers carry out seismic assessments of existing buildings. In basic terms, the Guidelines govern how seismic engineers review a building to arrive at a robust assessment of its “%NBS” – the all important percentage of the “new building standard” that an existing building achieves.

This process and the outcomes are hugely important because a %NBS rating (almost universally misunderstood by property advisors and lawyers alike) has become a proxy for seismic safety. As a result, %NBS underpins acquisition, development and leasing decisions and is a key consideration for many Crown agencies and corporates in their property strategies and health and safety assessments. The Guidelines also form part of the EPB (earthquake prone building) methodology produced by the Ministry of Business, Innovation and Employment, by which territorial authorities are required to identify earthquake-prone buildings.

When version 1 of the Guidelines was first released in July 2017 (superseding guidance from 2006), it was seen as a significant step forward. The Guidelines were an extensive revision by industry experts of earlier thinking and incorporated a wealth of research, knowledge and experience obtained from the significant New Zealand earthquakes between 2010 and 2016 – a period which included the Christchurch, Seddon and Kaikoura earthquakes. As such, and with one critical exception, the Guidelines represented the latest understandings on the seismic behaviour of existing buildings.

That one critical exception was Section C5 of the Guidelines, a section governing the detailed seismic assessments of concrete buildings. With the timing of the general release of the Guidelines in mid-2017, it simply wasn’t possible to include new guidance on a range of matters, including assessing precast concrete floor systems to take account of new knowledge from the Kaikoura earthquake, and to respond to recommendations made in the Statistics House investigation. However, this was remedied in November 2018 with the release of a new Section C5 (version 1A), and the slow slip quake in the market began.

The revisions to Section C5 are numerous, with changes addressing: material strength, “single crack” scenarios in concrete members, deformation limits due to buckling of walls and columns, limiting conditions leading to the loss of gravity support in columns, slab-column connections and walls, and strength degradation for lightly reinforced joints. None of that appears particularly reassuring to the untrained eye but, more significantly, there is also a complete revision of the guidance detailing the assessment of precast concrete floors – that is, precast concrete hollow-core, double-tee, rib and infill, and flat slab floor units, all of which have been relatively common methods of floor construction since the 1980s.

In relation to precast floors, the new Appendix C5E records in unemotive engineering prose that, in an earthquake, it is possible for “unseating” of precast floors to occur (that is, precast floors may fall off their supporting ledges within the building frame) and that precast floors can be particularly susceptible to damage that has the effect of “compromising gravity load support” (that is, precast floors may collapse). Appendix C5E goes on to state that “For buildings with older support detailing, the limiting drift at failure of the precast floors is likely to be less than the limiting drift for the frame and may govern the earthquake rating for the building as a whole.” Translated, this means that precast floors may fail before the building frame itself and, if that is the case for your building, then its %NBS will diminish to that earlier point of failure.

While the devil is very much in the engineering detail, the practical effect of the changes to Section C5 of the Guidelines is that the %NBS of many relatively new buildings with precast floors is likely to fall. There are many such buildings in New Zealand but, of the larger centres, Wellington, Napier, Hastings and Palmerston North are likely to be disproportionately affected due to their higher “Z-values”, being the seismic risk factors applicable to those regions.

How much lower the %NBS numbers will go is, of course, a key issue, as is whether buildings remain safe. These assessments in turn depend on a range of factors relating to a particular building, including the type of floor and the flexibility of the building frame. You will need an engineer to tell you but, for some buildings, the %NBS drop may be significant. While it hasn’t been highlighted in reporting to date, Aurecon New Zealand Limited’s assessment of Wellington Central Library, is “that the hollowcore precast floor system… achieves a score of 20%NBS” – this for a building that opened in 1991.

Of course, not all buildings will be affected like Wellington Central Library and, for some buildings, a small %NBS decrease may not be material.  However, for owners, tenants, funders and insurers of a 70%NBS structure, a 15-20% drop may well have major ramifications. Where a change in %NBS crosses a critical threshold for a party, their options will, as ever, be constrained by their existing contracts and the availability of alternatives.

Weaknesses in leasing documents will also be exposed. The standard ADLS deed of lease, for example, does not address seismic standards and a number of leases with negotiated seismic covenants require there to be an earthquake of a minimum magnitude before the tenant can even access rights related to the %NBS of the building. Neither position is advisable. However, even where a tenant has a contractual escape route, its options will be practically limited by the availability of alternative premises and business continuity requirements.

A further issue is how or whether affected parties will even know that the %NBS of the building has fallen. In the absence of an earthquake, few tenants will have cause to consider the accuracy of historical seismic reports. The statutory framework also provides little comfort; while territorial authorities are tasked with identifying potentially earthquake prone buildings, these are only buildings below 34%NBS and, even then, for at least an interim period of 18-24 months, those “EPB” assessments must continue to be made using the old Section C5 of the Guidelines. This means that for earthquake prone building purposes there may well be “false negatives” – i.e. %NBS ratings above those supported by the latest engineering knowledge. Beyond the earthquake prone building framework, there is generally no incentive or legal requirement for landlords to seek assessments that may indicate things have changed for the worse, or to disclose these if they are obtained.

Even less likely is that owners, outside local or central government, will close their buildings and, other than in the most extreme cases, there is no legal requirement for them to do so. In the case of Wellington Central Library, where engineers identified that “the potential loss of seating of the hollowcore units presents a significant hazard and potential risk to building occupants following a significant earthquake event”. Mayor Justin Lester observed that "We're not legally obliged to close this building, we are morally obliged”. Not all building owners will see it the same way.

Those concerned about their buildings should seek information from engineers and owners and take engineering and, potentially, legal advice. Next steps can then be informed by reference to assessed risk, existing contractual positions and organisational health and safety policies and obligations.

Doran Wyatt is a Partner with expertise in seismic matters, leasing and developments. He acts for a range of Crown agencies and institutional investors and is based in Greenwood Roche’s Wellington office.  The content in this article is not legal advice.  Our team would be happy to assist with any specific issues.


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Property Council Residential Development Summit

Lauren Semple, who leads our Resource Management Team presented at the Property Council...

Property Council Residential Development Summit

News & Insights

Property Council Residential Development Summit

Property Council Residential Development Summit

Lauren Semple, who leads our Resource Management Team presented at the Property Council Residential Development Summit in February 2019. 


Some philosophical issues to sort out with an Urban Development Authority model based on our experiences in Christchurch.  If coming to the end of the use of such powers in Christchurch is seen as a “return to local leadership” does it follow that the use of such powers in the first place is an affront to local democracy?  And how does that fit with the intention to deliver national UDA legislation.  Good conversation starter.  Want to know more, please do not hesitate to contact Lauren Semple or our Resource Management team.


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Subdivision Intensive Paper

Lauren Semple presented a paper as part of the NZCLE Workshop on Subdivisions. ...

Subdivision Intensive Paper

News & Insights

Subdivision Intensive Paper

Subdivision Intensive Paper

Lauren Semple presented a paper as part of the NZCLE Workshop on Subdivisions.  This paper considers the wider context of subdivision and land development and reflects on some of the tools, requirements and alternative processes which can influence the way projects take shape.  


It first looks at a number of the alternative legislative schemes set up in recent years to fast track development (including subdivision), and considers some of the lessons from these examples which may usefully inform future legislation including the much touted but not yet here urban development authority approach.  It touches on the role of, and tools available to, local authorities under the Local Government Act in relation to subdivisions, including the use of development contributions and development agreements to service growth and asks whether our preoccupation with new tools might prevent us from effectively utilising the tools we already have.   
Download the paper here - https://app.box.com/s/58174muot1x5y7b53t8imgxd4d5l5frd


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Draft Otakaro Avon River Corridor Regeneration Plan released for public consultation

For the past two years, we have been advising Regenerate Christchurch on the development...

Draft Otakaro Avon River Corridor Regeneration Plan released for public consultation

News & Insights

Draft Otakaro Avon River Corridor Regeneration Plan released for public consultation

Draft Otakaro Avon River Corridor Regeneration Plan released for public consultation

For the past two years, we have been advising Regenerate Christchurch on the development of the Otakaro Avon River Corridor Regeneration Plan. 


The Draft Plan was released for consultation on 14 November 2018 with submissions due by 5pm on 19 December 2018.  You can find a copy of the draft plan here - http://engage.regeneratechristchurch.nz/accessible-draft-oarc-regeneration-plan-homepage
 


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Greenwood Roche – Wellington Supreme Award 2018

We are pleased to continue to support the Property Council New Zealand Wellington Property...

Greenwood Roche – Wellington Supreme Award 2018

News & Insights

Greenwood Roche – Wellington Supreme Award 2018

Greenwood Roche – Wellington Supreme Award 2018

We are pleased to continue to support the Property Council New Zealand Wellington Property People Awards which recognise and celebrate excellence in property in Wellington.


Wellington Partner, Doran Wyatt had the honour of presenting the Greenwood Roche Supreme Award as part of the event on 11 October 2018.

Congratulations to McKee Fehl Constructors Ltd, this year’s winner of the Greenwood Roche Supreme Award, for the Press Hall 80 Willis Street / 22 Boulcott Street project.
 
What stood out for the judges was the ability of McKee Fehl to repurpose and modernise the Press Hall site.  The end result is an iconic development that adds vibrancy to Wellington but also respects the heritage of the original building.
 
The testimonials for this project summed it up:

  • “The concept of unlocking Press Hall, which was essentially buried in between Boulcott Street and Willis Street, was a clever idea.”
  • “The newly formed urban laneway leading to the food hall is activated by vibrant and diverse kiosks and a bar above, the veranda can now be occupied by people adding to the urban fabric of the street.”
  • “Never before have such old, run down, dark and dingy buildings been so substantially structurally modified, seismically upgraded and refurbished to create such an open, vibrant and modern workplace.”
In the judges’ words, “This feels like an iconic development with wide benefit for Wellington”.
 
Congratulations to Maurice Clark and the McKee Fehl team.


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New National Housing and Urban Development Authority

The Government has confirmed the introduction of a national Housing and Urban Development...

News & Insights

New National Housing and Urban Development Authority

The Government has confirmed the introduction of a national Housing and Urban Development Authority (HUDA) equipped with the tools to by-pass standard legislative processes and streamline urban development projects.  The announcement follows numerous recommendations in various reports over the past decade and the release of the Urban Development Authorities: Discussion Document last year.


Eligible urban development projects will include the provision of new public, affordable and Kiwibuild housing, as well as transport links, commercial and industrial developments, infrastructure and supporting community facilities (schools, pools, open spaces and libraries). The HUDA will also absorb the function of Housing New Zealand as the landlord for public housing in New Zealand. 
 
Read more here: https://app.box.com/s/2kjey5enswm7x08itfis3knzokz67t8o


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Key changes introduced by the Land Transfer Act 2017

The Land Transfer Act 2017 (Act) came into force on Monday, 12 November 2018. It repealed...

Key changes introduced by the Land Transfer Act 2017

News & Insights

Key changes introduced by the Land Transfer Act 2017

Key changes introduced by the Land Transfer Act 2017

The Land Transfer Act 2017 (Act) came into force on Monday, 12 November 2018. It repealed the Land Transfer Act 1952 (Old Act), and is intended to modernise, simplify and consolidate the Old Act and its amendments.

The Act also made amendments to the Property Law Act 2007 (PLA), including the introduction of covenants in gross, with effect from 12 November 2018.


In the main, the Act is not intended to change our land transfer laws substantially. However, some controversy exists regarding the right of an owner to reclaim title under the manifest injustice provisions, arguably eroding the principle of indefeasibility of title. Also, not all changes promoted during consultation have been adopted, such as placing more onus on mortgagees to verify the identify of their clients, separately defining encumbrances from mortgages, and permitting senior legal executives to certify and sign instruments in Landonline.
 
Some key changes are set out below.
 
New terminology
The Act includes new terminology aimed at modernising the language used. For example, a “certificate of title” and the clumsy “computer freehold/leasehold/interest register” has become the crisper “record of title”, and “registered proprietor” has become “registered owner”. There is also a concept of “replacement lease”, which is a renewed lease or a new lease in substitution for a prior lease between the same parties and relating to the same land.
 
Withholding information for a person’s safety
The Registrar-General of Land is able to refuse to provide a copy of an instrument or a record of title that identifies a person, or to include those details on the register in the first place, if the Register is satisfied that the information discloses or is likely to disclose the person’s location and prejudice their safety.
 
Caveats
There is now an express right for an owner of an estate or interest in land to lodge a caveat against their own title where there is a real risk of fraud.
 
Guaranteed title searches
Guaranteed searches back up the security of the land transfer system, by providing a right to compensation if a purchaser of an interest in a land transaction suffers loss due to the registration of a competing interest. Under the Old Act, the purchaser had to obtain a “guaranteed search” within 14 days before settling the transaction, and had to lodge the transaction documents within 2 months after settlement.
 
The Act updates these periods to reflect the electronic nature of land transactions by:

  • requiring that a guaranteed search of the title be obtained within 5 working days before (and including) the settlement date; and
  • reducing the period after settlement during which the transaction documents must be lodged at Land Information New Zealand (LINZ) to 20 working days.  
As with the Old Act, no compensation will be payable if the title search disclosed the competing interest.
 
Compensation
Compensation is payable by the Crown when loss occurs in certain circumstances (including, but not exclusively, under the “guaranteed search” situation). Under the Old Act, the calculation for compensation is based on the land value at the time the loss occurred. The Act shifts the date on which compensation is to be assessed to when the claimant “gained (or ought reasonably to have gained) knowledge of the loss”.
 
The Act confirms that the value of the lost estate or interest in land is the “market value”.
 
The High Court may adjust compensation where the amount determined by the prescribed calculation is inadequate or excessive, and may determine at which date the market value should be assessed which may include a revised assessment as at the day of the court judgment.
 
Cancellation of land transactions in cases of “manifest injustice”
The High Court will have limited discretion to order the alteration of titles to avoid “manifest injustice”, but only where compensation or other damages would not properly address the injustice. The High Court may cancel registration of a land transaction and restore title to a person who has been deprived of an estate or interest, or suffered loss, due to that registration. The Court must take into account how the land was acquired, the length of time the parties have owned or occupied the land, the nature of any improvements made, the special characteristics of the land and its significance, and any other relevant circumstances. However, the Court cannot make an order if the estate or interest has subsequently been transferred to a third person acting in good faith.
 
Fraud
Fraud is one of the main exceptions to the indefeasibility of an owner’s title to land. “Fraud”, as an exception to indefeasibility, is now defined as forgery or other dishonest conduct of an owner or agent of an owner in acquiring an estate or interest in land. It is worth noting that, for the purposes of a Court order cancelling a land transaction in the case of “manifest injustice”, the existence of forgery or other dishonest conduct will not itself constitute the required level of injustice.
 
Introduction of covenants in gross and what it means for encumbrances
Until commencement of the Act, it was not possible to register an instrument that contained covenants or promises given by a landowner “in gross” – i.e. in favour of another person, rather than benefiting another parcel of land. Traditionally, these covenants have been included in encumbrances, which are a form of mortgage used for securing a long term obligation to pay a rental (known as a “rent charge”). To reduce the widespread use of encumbrances, the PLA has been amended to allow covenants in gross to be noted on records of title. This has been long awaited and should provide a registration option which is more palatable especially to banks. It also allows affected owners to seek modification or cancellation of existing encumbrances and replace them with covenants in gross.
 
While encumbrances are commonly used as a mechanism to register covenants, they are also properly (but uncommonly) used to register rent charges, and encumbrances are still referred to in the parts of the Act governing mortgages. Encumbrances therefore remain a viable instrument. There are some benefits in using encumbrances over covenants, including exclusion of the covenant modification provisions in the PLA, but, where the real purpose is to require a landowner to do or refrain from doing something for the benefit of another person, a covenant in gross will generally be the appropriate instrument.
 
Registrar’s power to correct titles
The Act clarifies the circumstances in which the Registrar is able to correct titles. The Registrar’s power of correction is now limited to correcting an error made by the Registrar, correcting an error made by a person preparing a document or information for registration, recording a boundary change due to accretion or erosion and giving effect to a court order.
 
Overriding statutes
The Act repeals the Statutory Land Charges Registration Act 1928, with the Act dealing with the registration, priorities and release of relevant charges.
 
Regulations
The Land Transfer Regulations 2002 have also been revoked, with the Land Transfer Regulations 2018 (Regulations) replacing them.
 
One of the key changes made in the Regulations is to update the terms implied into certain classes of easements. These changes include:
  • altering the description of the affected land from “servient tenement” to “burdened land” and from “dominant tenement” to “benefited land”;
  • referring to the part of the burdened land subject to the easement as the “easement area”, in line with commonly-used wording;
  • updating and aligning the equipment that can be installed under the various types of easement;
  • removing unnecessary wording, such as replacing the class of easement previously called “telecommunications and computer media” with simply “telecommunications”;
  • requiring the owner of the burdened land to act reasonably when the grantee seeks to install easement facilities; and
  • adding an implied electricity conveyance right in order to operate equipment installed under the easement powers (eg. a water pump).  
The Regulations also update the core information required to be used in land transaction forms. LINZ has provided template forms, although these remain inconsistent with each other and do not always contain the required core information.
 
New requirements for authority and identity
In conjunction with the Act and the Regulations, LINZ has issued new guidelines for authority and identity and the New Zealand Law Society has issued new authority and instruction forms. The guidelines and forms include greater detail about how clients instruct lawyers and conveyancing practitioners to electronically certify and sign land transfer instruments and how those instructions are required to be confirmed to be valid. In conjunction with the extension of Anti-Money Laundering requirements to lawyers, lawyers now play a key role in confirming that land transactions are free of fraud and other illegal activity.

If you would like further information, please do not hesitate to contact any of our property lawyers. Contact details can be found here.


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