We don’t stand apart. When briefed by a client we become an embedded part of the team. We engage our depth of knowledge and commercial acumen to swiftly identify what’s required from the outset – and set about delivering it. It’s not a revelatory approach, but it is refreshing, competitive and deeply efficient – and enjoyable.It has earned us a market reputation as a leader in our areas of expertise where we have established:
A prominent position on the “All of Government” external legal services panel.
A substantial public and private sector client base.
Regular appointments to nationally significant projects.
“They operate with a level of charisma in the room – certainly not order takers. They sense the gaps then find the solutions.”
To ensure our specialists are always where they’re needed, we operate as one firm with hubs in Auckland, Wellington and Christchurch. We advise on a range of public and private sector projects.
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.
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.
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 in to 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 firstname.lastname@example.org or submitting entries via the Invercargill Licencing Trust facebook page.
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.
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.
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.
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.
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.
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.
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.
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.
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.
New Zealand takes it place on the global stage with its efforts to combat the effects of climate change. The Emissions Trading Scheme is at the centre of these efforts. Improvements to the Emissions Trading Scheme were announced on 31 July 2019.
Climate change is arguably one of the most pressing threats to the human planet. According to the United Nations, climate change “is the defining issue of our time and we are at a defining moment”.
The Kyoto Protocol requires its members to monitor their actual greenhouse gas emissions and precise records of trades have to be kept. It has set the framework for numerous policy, legislative and environmental initiatives. New Zealand has the unique opportunity of playing its part in reducing greenhouse gas emissions through forestry. Forestry exports are worth around $5 billion a year and forestry directly employs approximately 20,000 people. It is a crucial part of our climate change response.
With that in mind, it is imperative that New Zealand implement a sufficient, robust and effective Emissions Trading Scheme (ETS). On 31 July 2019, improvements to the ETS regulations were announced to reach that goal. An Amendment Bill to the Climate Change Response Act 2002 will be introduced to Parliament later this year. Four changes in this Amendment Bill are worth noting:
Greenwood Roche lawyers, Lauren Semple and Rachel Murdoch, have been working with Regenerate Christchurch on the development of the draft Otakaro Avon River Corridor Regeneration Plan which is the subject of this review case.
In response to a complaint, the Chief Ombudsman’s opinion confirms that Regenerate Christchurch acted lawfully and in an administratively reasonable manner in the development of the draft plan. The draft plan is currently with the Minister for Greater Christchurch Regeneration for her approval or decline. For more information and to review the case note please click here.
On the 4th of July the New Zealand Productivity Commission released a draft report on Local Government Funding and Financing.
This report is the result of the Government’s request for the Productivity Commission to undertake an inquiry into local government funding and financing; and where shortcomings in the current system are identified, to examine options and approaches for improving the system.
While there were a number of suggestions made, the draft report found the current framework is broadly sound. The Commission Chair stated “The current framework measures up well against the principles of a good funding and financing system for local government. It is clearly separated from the central government’s tax base which is an important feature. It is relatively simple and economically efficient. It also provides a high degree of flexibility for councils to shape how they raise their revenue.”
The report notes that councils can make better use of the tools they already have access to, and there is room to improve organisation performance, transparency and decision making that will help to relieve cost pressures. These existing tools include rates, fees are user charges, development contributions, central government funding and debt.
The Commission favours the “benefit principle” as the primary basis for deciding who should pay for local government services. Those who benefit from a service should pay for its costs. Additionally, where local services benefit national interests, central government should contribute. User charges or targeted rates should also be utilised.
The Commission found that there is no clear evidence that rates have become less affordable over time, despite this being one of the key reasons the inquiry was undertaken. Overall, rates have continued to broadly align with population and income growth over the past 3 decades, but have not become relatively more burdensome.
Cost pressures and new tools
The report noted some new tools are needed to help councils deal with some specific cost pressures. The highest priority pressures have been identified as:
As part of its broader focus on the construction and infrastructure sectors, the Government is proposing a bill which would establish a Crown entity tasked with providing strategic independent advice and oversight on the planning, co-ordination and delivery of public sector-led infrastructure projects in New Zealand.
The establishment of Te Waihanga – New Zealand Infrastructure Commission as a Crown entity is one of the more significant actions taken by the Government towards addressing the major infrastructure deficit in New Zealand, and the existing challenges with the planning, co-ordinating and delivery of infrastructure projects which have contributed to New Zealand’s current position. Taking lead from similar initiatives in Australia, the UK and elsewhere, the Commission will provide strategic oversight and leadership over the way in which infrastructure projects are planned, co-ordinated and procured. Critically, its functions are advisory only. Any decision-making regarding infrastructure projects (including investment in those projects, or the timing for or manner in which they are procured and delivered) will remain with the relevant Ministers/departments.
Under the bill, Te Waihanga would be established as an autonomous Crown entity, governed by a board of up to 7 members. The entity will largely take shape from the existing Infrastructure Transactions Unit currently within Treasury which will be incorporated into Te Waihanga once it is established (anticipated for October 2019).
The overarching function of the Commission is to co-ordinate, develop, and promote an approach to infrastructure and resulting services that improve the well-being of New Zealanders. The bill authorises the Commission to carry out that function through two main ways:1. Strategy and planning through:
b. Providing advice on infrastructure including the current state of infrastructure, current and future infrastructure needs, infrastructure priorities, and matters which may prevent the effective delivery of infrastructure.
a. Promoting a strategic and coordinated approach to the delivery of infrastructure projects;
c. Providing support services to those projects, including advice, services or staff to assist in the delivery of a project.
While not specifically included as a provision in the bill, the explanatory note identifies that Te Waihanga would be empowered to, and will be expected to, promote best practice infrastructure delivery as part of its supporting function. To that end, it is expected that the Commission will:
e. Publish a pipeline identifying existing and upcoming infrastructure projects (the first of these can be accessed on the Treasury website);
f. Produce best practice guidance on infrastructure procurement and delivery. This function will be part of its role as the “centre of expertise to assist infrastructure projects to be delivered efficiently and effectively”. To that end, where requested by the relevant department/Minister, the Commission will also provide advice on business cases for proposed projects.
In support of its functions (and in addition to its general powers as a Crown entity), the bill both grants powers to, and imposes obligations on, the Commission, including:
This proposal has generally received strong support and input from industry and experts within both the public and private sector, and represents a critical step towards a more informed, strategic and coherent approach to infrastructure planning, procurement and delivery. Perhaps the biggest potential shortcoming is the general lack of any strong levers which would at least encourage action/compliance by other government departments with the advice of the Commission. For example, while the Government would be required to issue a response to the Commission’s strategy reports, government departments are not obliged to consider the findings of the reports in reaching any decisions relating to procurement or planning of capital projects, nor consult with the Commission. Consequently, to successfully effect change at the decision making level, the Commission will need to build a narrative around the positive impacts of sound planning and procurement, and the role that it can play in supporting other departments in achieving those outcomes. Even if it is able to do so, there is still the risk that the Commission could be sidelined.
Among the options to mitigate this risk, there is the opportunity to expand the Commission’s mandate to include monitoring and reporting on the Government’s progress in addressing New Zealand’s infrastructure challenges. While under the current proposal it would be required to provide “state of the nation” assessments, there is no explicit directive to undertake on-going monitoring of how the Government is responding to the findings of the Commission’s assessments, including how it is addressing identified constraints on the effective delivery of infrastructure. Expanding the Commission’s mandate to include monitoring and reporting on the Government’s response to the identified challenges and opportunities (which would also, as a first step, require the development of some form of metric) would strengthen the Commission’s ability to keep the Government accountable for effecting improvements in the planning, procurement and delivery of infrastructure.
For further information on the Commission or if you are interested in receiving further updates on this matter, please do not hesitate to contact us.
Utilising the existing emissions trading scheme, the bill proposes the allocation of emissions budgets (issued every five years) designed to enable a “just and fair” transition of New Zealand’s industry and economy towards meeting the 2050 target. The target adopts a “split-gas” approach, where by 2050:
• Biogenic methane emissions will have reduced by 24 – 27% below 2017 levels. By 2030, they will have reduced by 10%.
• All other net greenhouse gas emissions will have reduced (through reductions, removals and offshore mitigation) to zero.
Under the bill, the relevant Minister must ensure that net emissions do not exceed the emissions budget for the relevant emissions budget period. Along with setting the budget, the Minister will also be required to prepare an emissions reduction plan which will set out the policies and strategies for meeting such a budget. There is however no legal remedy or relief available for failing to meet an emissions budget or for failing to meet the overall 2050 target, other than the issuing of a declaration and an award of costs. Similarly, meeting the emissions budgets and the 2050 targets are only permissive considerations for those exercising public functions. A failure to take a budget or the 2050 target into account will not invalidate the action. Consequently, as with the UK legislation, much of the success of this legislation will therefore rely on political and industry pressure to achieve compliance with the emissions budgets.
In addition to requiring the preparation of emissions budgets and ensuring that they (and as a result the 2050 target) are met, the bill would establish the Climate Change Commission. The Commission is an independent Crown entity tasked with both advising the Government on its emissions budgets and reductions and adaption plans, and monitoring and reporting on progress towards meeting emissions budgets and the 2050 targets. In particular, the Commission will be required to recommend the quantity of emissions permitted for each period, how the budget will be met including pricing and policy methods, and the indicated proportion of reductions, removals and offshore mitigation. While the Minister is not required to accept its advice or recommendations, the Minister is required to present the Commission’s reports to the House and issue a public response to that assessment. Critically, the bill is prescriptive in the skillsets required for the Commission which include expertise in climate science, matauranga Māori and Te Ao Māori, central and local government policy and decision making, and experience from a range of sectors and industries.
As mentioned, the bill anticipates that emissions budgets will be met through some combination of emissions removal (sequestration of some form), reduction and, in limited circumstances, offshore mitigation. Offshore mitigation would allow the purchase of emissions reductions and removals, or allows from international emissions trading schemes. While the use of offshore mitigation is generally discouraged under the bill, the ability to utilise that method provides some further flexibility to both industry and Government in seeking to meet the emissions budgets. Unlike the UK legislation, there is no mention of whether and how New Zealand’s contribution to international aviation and shipping emissions will be accounted for, though this may be a matter that is subject to consideration by the Commission once it is established.
Informed by extensive public consultation and a range of technical (including environmental and economic) analysis, the bill has of course already attracted a wide ranging response across different sectors. While applauding the framework for action, climate scientists and environmentalists have generally voiced concerns around the absence of enforcement/accountability for failing to meet targets. While similarly applauding the intent, other industries have voiced concerns over how realistic the targets are given the available technology.
From the analysis in support of the bill, it is clear that if the targets are to be reached then significant investment in innovative technologies to support industry towards more carbon neutral operations, and planting of trees (or use of other devices) that effectively sequester carbon will be critical. It is also clear that if the bill passes, there is a great deal of work ahead for particularly the Climate Change Commission in its role as an advisor to, and watchdog of, the Government in its response to the climate crisis. As has been illustrated by the UK Commission, critical success factors for this agency will be strong credibility and influence generated by well-rounded and in-depth expertise (including in policy making, business and industry), independence and transparency. Partnership with Māori at all levels of decision-making will also be vital.
There appears to be strong (albeit not complete) consensus across industry and political parties alike that taking action to reduce New Zealand’s carbon footprint is critical if we are to contribute to the global effort to slow the rate of our changing climate. How extensive that action is, how quickly it can be taken, and of course who pays for it remains to be seen. However this bill provides a strong framework for ambitious decisions to be made – ambitious decisions which will be required if the 2050 target is to be met. The (largely equivalent) UK legislation is highly regarded, having been replicated in a number of other countries. That Commission has been identified as having an excellent reputation, producing reports that carry “immense authority” and influence over Government.
Notwithstanding the absence of any obligation on other facets of Government to consider the Commission’s advice, it is clear that both the Commission and the Act itself has influenced policy development across sectors. Reports on the Act have also noted that the planning and reporting obligations on Government and the Commission have added value in “produc[ing] a kind of transparent dialogue that invites political accountability”. Moreover, as a result of the work undertaken by the Commission, Government and industry, the UK has met its first emissions budget and looks set to meet its second and third. It is however acknowledged that “low-hanging fruit” in the early years have made this task more straightforward, and more ambitious, controversial decisions are ahead if the UK is to continue its path of emissions reductions.
The Zero Carbon bill has a way to go before it passes, and we may well see some changes as it moves through the House. With National supporting the bill through its first reading earlier this week, it will now progress to select committee stage where the public will have the opportunity to share its views on the bill.
Our team is following this closely, so please do not hesitate to contact us if you have any questions about the bill. We have also prepared a more detailed summary of how the bill operates and we are more than happy to provide this to you and your team should you wish.
1. New Zealand Productivity Commission Te Kōmihana Whai Hua o Aotearoa Note: Examining the UK Climate Change Act – Research Note, Teresea Weeks, September 2017 at p.20.
2. Macroy, R. (2014). “The UK Climate Change Act – Towards a Brave New World? (2012)” in Regulation, enforcement and governance in environmental law (2ed), 261-274. Oxford: Hart Publishing, p 267
3. Church, J. (2016). Mind the Gap – Reviving the Climate Change Act. October 2016. London: ClientEarth, p.13.
OceanaGold (New Zealand) Ltd (OceanaGold) has recently had declined an application under the Overseas Investment Act 2005 (OIA) to acquire 178 hectares of rural land for the purposes of use as storage of mine tailings (the Application). The establishment of the additional mine tailings capacity was to extend the life of the Waihi mine from 2028 until 2036 by allowing OceanaGold to proceed with its new mining project “Project Quattro”. The decline came as a surprise to the applicant and the industry and does raise some question marks.
As the application was in respect of the purchase of land, section 24(1)(a) of the OIA required a decision to be made by the two Ministers. Minister Clark granted the Application but Minister Sage declined it, meaning that of necessity the Application was declined. The Overseas Investment Office itself had recommended the Application be granted.
Under section 16A of the OIA, the Ministers must consider whether the Application meets the Benefit to New Zealand test. As the Application involved rural land, it was subject to the higher standard of a ‘substantial and identifiable’ benefit having to be shown, as against other counterfactual uses.
When making their respective decisions, both Ministers considered a number of factors identified to be of high relative importance, including jobs; new technology or business skills; increased exports receipts; increased processing of primary products; and the oversight and participation of New Zealanders’. Minister Sage, in declining the Application, determined that converting the land into a waste-storage area for the by-product of a non-renewable extractive industry reduces any economic benefit from the Application. This determination led the Minister to conclude that the overall short term financial benefits are inconsistent with sustainable economic interests.
The assessment of a net negative benefit to New Zealand is novel in the sense that here, the Minister has effectively deducted points for a use of the land that is contrary to government policy.
Two different decisions by Ministers of the same coalition government will always raise questions of impartiality in decision making, but in this instance in particular questions have been raised by the mining industry body Straterra and the Hauraki District Council about the Minister’s history of activism against mining and have questioned whether she should have recused herself and delegated the decision making power, an option available under section 32 of the OIA. She has previously done so, on other grounds.
As with any decision made by a Minister, OceanaGold has the option of judicial review of the decision. Predetermination of an outcome of a decision, or bias, can be grounds for a decision to be judicially reviewed as can an incorrect application of the Benefit to New Zealand test under the OIA. These are both avenues OceanaGold may look to take as it assesses the impacts this decision will have on its future expansion plans.