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About

 

About Greenwood Roche

Two pivotal areas define the way we’ve shaped our firm to deliver more to our clients:
  • Clearly defined specialist areas, each with a significant depth of focused, legal expertise.
  • The acknowledgement of a trusted place at a client’s table, where we deliver the high levels of care, rigour and performance our clients expect of themselves.

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.”
National coverage

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.


Specialist expertise

Recent projects
Purchase of Alinta Energy

Recent Projects

Purchase of Alinta Energy

Purchase of Alinta Energy

Brigid McArthur, Monique Thomas and Sam Green acted earlier this year, alongside an Allen & Overy team, on New Zealand aspects of the purchase by Hong Kong-based Chow Tai Fook Enterprises of Australia’s largest electricity and gas utility, Alinta Energy.


The sale follows an about-face on Alinta’s delayed public float, which itself followed an earlier inconclusive sale process.  The deal remains subject to foreign investment approval in Australia.

In New Zealand, the Alinta assets include the Glenbrook Steel Mill cogeneration plant.

Chow Tai Fook is a privately-owned holding company with existing investments across 50 countries, straddling hotels, retail, property and jewellery businesses.

- Photo courtesy of Alinta Energy


Specialist expertise

Key lawyers involved

Similar projects
Bid to Purchase Rimu, Kauri and Manutahi Oil and Gas Assets

Recent Projects


Bid to Purchase Rimu, Kauri and Manutahi Oil and Gas Assets

UK listed oil and gas explorer Mosman Oil & Gas was successful in striking a deal with Origin Energy to purchase the Taranaki Rimu, Kauri and Manutahi (RKM) petroleum fields and associated petroleum production infrastructure.


Alas, with oil prices falling below US$40 per barrel for a sustained period, Mosman and its joint venture partners were forced to cancel the sale and purchase agreement.  Reportedly, the assets may still be available for purchase.
Partner Brigid McArthur and solicitors Susan Baas and Kurt McRedmond worked with Mosman on its acquisition project, including on its due diligence, sale and purchase negotiations and applications for New Zealand Petroleum & Minerals and Overseas Investment Office consents.


Specialist expertise

Key lawyers involved

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Establishment of CarboNZero Certified Ecotricity Limited Partnership

Recent Projects


Establishment of CarboNZero Certified Ecotricity Limited Partnership

Ecotricity is New Zealand’s only “carboNZero” certified, 100% renewable electricity retailer. This means that it sources electricity only from sustainable and renewable sources, such as hydro and wind.



Partner Brigid McArthur recently acted for Ecotricity Limited on the establishment of the joint venture, by way of limited partnership, with Pioneer Generation Limited.  Pioneer owns and operates some significant renewable generation projects in the South Island.  The Ecotricity Limited Partnership is also investing in electric vehicles and associated infrastructure.
Together, Ecotricity and Pioneer are championing the case for investment in renewables and we congratulate them on their venture.  They are at the forefront of what is a growing trend away from conventional fossil fuel based technologies.  Your support can be enhanced by visiting the Ecotricity website and checking the deals on offer.  www.ecotricity.co.nz


Key lawyers involved

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Greenwood Roche assists French construction giant

Recent Projects

Greenwood Roche assists French construction giant

Greenwood Roche assists French construction giant

Australasian utility contractor Electrix, part of McConnell Dowell, has been acquired by French construction giant VINCI Energies. Electrix has approximately 2,000 employees located in New Zealand and Australia and provides a range of maintenance and construction services for utility providers.


Greenwood Roche assisted VINCI in respect of New Zealand aspects of the transaction, working closely with VINCI Energies’ international legal teams from Baker McKenzie (Sydney) and Bolze Associés (Paris).  Greenwood Roche is proud to have worked with VINCI and its legal team on this project.

About VINCI:
 

  • VINCI Energies' is the world’s largest company in construction and related services and is listed on Euronext's Paris stock exchange and is a member of the CAC 40 index.
  • According to its website, in 2013 the VINCI Group had 171,678 employees and worked on 266,000 projects in 100 countries – with VINCI Energies having around 63,000 employees in 45 countries.
  • For more information on VINCI Energies, please visit www.vinci.com


Specialist expertise

Key lawyers involved

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Bathurst Resources – Buller Coal Project

Recent Projects

Bathurst Resources – Buller Coal Project

Bathurst Resources – Buller Coal Project

New Zealanders are well aware of the severe challenges Bathurst Resources has overcome in progressing its West Coast coal mining project.


Greenwood Roche has been part of the Bathurst team on some important parts of the Buller Project, advising on land acquisition and land rights for the coal handling and preparation facility and the proposed aerial conveyor, and obtaining requisite Overseas Investment Office approvals.
 
We have also been acting jointly for Bathurst Resources and Westport Harbour on their joint arrangements for the siting, construction and operation of a coal handling facility at Westport Port.


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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Aratiatia hydroelectric plant refurbishment

Recent Projects

Aratiatia hydroelectric plant refurbishment

Aratiatia hydroelectric plant refurbishment

Greenwood Roche has assisted Mighty River Power with the procurement and negotiation of contracts for its plant refurbishment project at Aratiatia


Austria-based Andritz was awarded the contract to provide work on three generating units at the 78-MW Aratiatia hydroelectric station.

The Greenwood Roche team for this project comprised partner Barry Walker and special counsel Adrian Doherty.  Barry and Adrian are experienced international construction project lawyers, comfortable using a variety of international standard documents, including FIDIC, to assist in smooth cross-border negotiations.


Specialist expertise

Key lawyers involved

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Mitre 10 Support Centre

Recent Projects


Mitre 10 Support Centre

Greenwood Roche assisted Mitre 10 with its new head office project in Auckland


Greenwood Roche acted for Mitre 10 in respect of the procurement and engagement of the contractor and consultant team for its new head office and support centre in Albany.

The facility will comprise approximately 7,000 m² at 65-67 Corinthian Drive, Albany, Auckland. It is being developed by Mitre 10 itself and is due for completion in late 2016.

The Greenwood Roche team for the project included partner Barry Walker and special counsel Adrian Doherty.


Specialist expertise

Key lawyers involved

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Bid to Purchase Rimu, Kauri and Manutahi Oil and Gas Assets

Recent Projects


Bid to Purchase Rimu, Kauri and Manutahi Oil and Gas Assets

UK listed oil and gas explorer Mosman Oil & Gas was successful in striking a deal with Origin Energy to purchase the Taranaki Rimu, Kauri and Manutahi (RKM) petroleum fields and associated petroleum production infrastructure.


Alas, with oil prices falling below US$40 per barrel for a sustained period, Mosman and its joint venture partners were forced to cancel the sale and purchase agreement.  Reportedly, the assets may still be available for purchase.
Partner Brigid McArthur and solicitors Susan Baas and Kurt McRedmond worked with Mosman on its acquisition project, including on its due diligence, sale and purchase negotiations and applications for New Zealand Petroleum & Minerals and Overseas Investment Office consents.


Specialist expertise

Key lawyers involved

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Establishment of CarboNZero Certified Ecotricity Limited Partnership

Recent Projects


Establishment of CarboNZero Certified Ecotricity Limited Partnership

Ecotricity is New Zealand’s only “carboNZero” certified, 100% renewable electricity retailer. This means that it sources electricity only from sustainable and renewable sources, such as hydro and wind.



Partner Brigid McArthur recently acted for Ecotricity Limited on the establishment of the joint venture, by way of limited partnership, with Pioneer Generation Limited.  Pioneer owns and operates some significant renewable generation projects in the South Island.  The Ecotricity Limited Partnership is also investing in electric vehicles and associated infrastructure.
Together, Ecotricity and Pioneer are championing the case for investment in renewables and we congratulate them on their venture.  They are at the forefront of what is a growing trend away from conventional fossil fuel based technologies.  Your support can be enhanced by visiting the Ecotricity website and checking the deals on offer.  www.ecotricity.co.nz


Key lawyers involved

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Recent news & insights
Born Again? Legislative Assistance to Reinstate Christchurch Cathedral

News & Insights

Born Again? Legislative Assistance to Reinstate Christchurch Cathedral

Since being severely damaged in the 2010/2011 earthquakes, the iconic Christ Church Cathedral has lain largely in ruins, not only impacting the physical and economic regeneration of the immediate surrounds but for many, symbolising the pace (or lack thereof) at which the rebuild of Christchurch has occurred.  Seven years on, announcement after announcement, and significant time and money invested in legal costs and consultancy bills, the decision to re-instate the Cathedral was confirmed by the Anglican diocese in September this year.  The re-instatement option is estimated to cost approximately $104m, and is expected to be funded by grants from the Christchurch City Council, the Great Christchurch Buildings Trust, the Crown and the insurance payout received by the Anglican Church.  In addition to the grant, the Government is offering a $15m loan. 


Recognising the decision of the Diocese, the strategic importance of the Cathedral to the regeneration of the city, and the threat that continued challenge to the reinstatement would present, the Government has proposed legislation which seeks to streamline the process of reinstatement and provide a higher degree of certainty that it will occur.  We have summarised the key elements of the Bill (which was presented to the House in early December) below. 

In brief:

• The Bill will allow the Governor General, on recommendation by the appropriate Minister, to issue Orders in Council (OIC) to grant exemptions from, modify (which includes suspending, or excluding the jurisdiction of the court) or extend statutes listed in Schedule 2 of the Bill.  Perhaps most significantly, the subject statutes currently include the Resource Management Act 1991 (and plans or rules made under it) and the Heritage New Zealand Pouhere Taonga Act 2014 (Heritage Act).  In effect, an OIC issued under the Bill could substantially alter or indeed suspend the processes under both of these statutes which if left unaltered could allow for further public, Council or Heritage New Zealand input which might further delay the reinstatement. 

• The Bill also contains a mechanism (utilising OICs on the recommendation of the Minister) to add statutes to Schedule 2.  However, the proposal (via an OIC) to include further statutes in Schedule 2 is made subject to confirmation by the House of Representatives.

• The application of OICs is geographically bound, only applying to the Cathedral area. 

• The supervisory jurisdiction of the High Court through judicial review is proposed to be time bound, requiring applicants to lodge a statement of claim within 28 days of the relevant decision being made.  The justifications for the proposed limit on this crucial constitutional role are the risk and delay to the project, should parties have an open ended right to request review of decisions made under it, and the reduced risk of review given the airtime (both through broader consultation and litigation) already given to affected parties to express their views and concerns.  The limiting of the supervisory jurisdiction of the High Court by the legislature and/or the executive branches has rarely gone down well with the judiciary.  However given the nature of the limit (timing of bringing a claim) and the history of the Cathedral, it may be considered justified on this occasion. 

• Perhaps more interestingly, clause 17(2) of the Bill provides that even where review is requested in good time and the exercise of power is found by the High Court to be invalid, any such determination does not affect the validity or effectiveness of any action already taken under or in reliance on the exercise of power.  Although, the Court retains a discretion to order that that the subsection does not apply this section reinforces to need to act quickly to challenge a decision.  This is both in order to meet the time restriction, but also to mitigate or avoid the risk of what would essentially be a meaningless claim if the action to which the decision relates is already carried out and cannot be “undone”. 

• The recommendation of Minister to the Governor General to issue an OIC in respect of a Schedule 2 statute must satisfy the following pre-requisites before it may be made:

• The Minister must be satisfied that (among other matters) the OIC is necessary or desirable for the purposes of the Act (described below).

  • The terminology “necessary or desirable” seems to be a deliberate deviation from the requirement included in both the (now repealed) Canterbury Earthquake Recovery Act 2010 and the Greater Christchurch Regeneration Act 2016 of the Minister to only exercise his/her powers where he/she “reasonably considers it necessary”.  That requirement was subject to a prescriptive judicial interpretation by the Court of Appeal in Independent Fisheries, instituting it as a very high bar for the Minister to meet (1).   Confirmed in that same decision, “desirable” on the other hand sets a much lower bar (2).
  •  A draft of the OIC has been reviewed by a Panel established to review the OICs and the Regulations Review Committee.
  • The Minister has had regard to the Panel’s recommendations on the OIC and the comments of the Committee.
  • The Minister has consulted with the Minister for Arts, Culture and Heritage (if the OIC relates to the Heritage Act), or the Minister for the Environment (if the OIC relates to the RMA).
  • The statutory engagement process has been followed.
  • In short, this process requires the Minister to “make available” an explanation of the aim of the proposal, the effect it will have, and why the Minister thinks it is “necessary or desirable” to persons the Minister thinks appropriate given the proposed effect of the Order, or to the public generally.  Those persons have 20 working days to provide written comment on the proposal, and the Minister must have regard to those comments. 

• The requirement to exercise statutory authority in accordance with the purposes of the authorising legislation provides a critical “check” on the exercise of power by public bodies. The purposes of the Bill is to facilitate the reinstatement of the Cathedral and, in particular;

  • To facilitate the rein-statement in an expedited manner compared with processes and requirements outside the Act; or
  • To provide cost-effective process for reinstatement compared with processes outside the Act; or
  • To achieve earlier or greater certainty for the owner of the Cathedral and the Christchurch community generally as to the reinstatement of the Cathedral than would be likely under processes and requirements outside the Act.

Interestingly, in order to meet any of those purposes, the proposal (to which the exercise of power relates) must meet both the definition of “re-instatement” and “Cathedral” in clause 4.  Both definitions are broadly drawn.  “Cathedral” includes all ancillary structures and improvements proximate to, and directly associated with, the Cathedral.  “Reinstatement” includes 1 or more of a wide range of other actions, including “demolition of any part of the Cathedral”.  There are, in other words, a plethora of actions as part of reinstatement that this Bill will seek to provide for.  As currently drawn, we do not however consider that, should the decision to reinstate be changed to demolish and replace, the Bill would provide for this. 

General Comment

The discretion afforded to the Minister and the proposed absence of substantive public process will undoubtedly raise concerns as the Bill progresses through the House.  As alluded to, any limitation on the supervisory jurisdiction of the High Court will also attract controversy.  On that basis we would expect to see some amendment to the Bill.  However this is a very specific context and the legislation is designed to address a very specific mischief, being to accelerate the resolution of what has been a very long, expensive and contentious matter.  Further, legislation to facilitate whatever outcome was determined for the Cathedral was also indicated from the former Government, and as such, we could expect general support from both sides of the House. 

Greenwood Roche’s resource management specialists have unrivalled experience with delivering large scale project developments across New Zealand (and particularly in the Canterbury context) using fast track planning legislation.  Our team is following the development of this legislation closely and will provide updates as they come to hand.

Footer:
1. Canterbury Regional Council v Independent Fisheries Limited [2012] NZCA 601.
2. Canterbury Regional Council v Independent Fisheries Limited [2012] NZCA 601, at [107].


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Greenwood Roche Young Achiever of the Year 2017

News & Insights

Greenwood Roche Young Achiever of the Year 2017

Greenwood Roche Young Achiever of the Year 2017

We are pleased to continue to support the Property Council Southern Excellence Awards which recognise and celebrate excellence in property in the South Island.  Christchurch Partner, Lauren Semple had the honour of presenting the Greenwood Roche Young Achiever Award as part of the event on 10 November 2017.


Congratulations to Fiona Short of Warren and Mahoney, this year’s winner of the Greenwood Roche Young Achiever Award.  Fiona is a very deserving winner of this award.  She has recently become an Associate in the Christchurch Warren and Mahoney office, recognising her contribution to the Canterbury Rebuild.  Moving to Christchurch months after the Canterbury Earthquakes, Fiona quickly found her stride working on a wide range of architectural projects.  Her work on the Mary Potter Apartments went on to win a New Zealand Institute of Architects Canterbury Architecture Award. 

Fiona has a clear passion for sustainability, leading the sustainability portfolio group within Warren and Mahoney.  This group has been instrumental in creating documents to redefine what sustainability means to the architecture practice.  Fiona has also played an active role in conversations about diversity and inclusion in the construction industry, including being part of the team responsible for organising the Architecture + Women exhibition aimed at increasing the visibility of the work in the rebuild undertaken by Christchurch women architects.

Congratulations Fiona, we look forward to seeing where your career takes you and to working with you in the future.


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Update: Urban Development Authorities’ Proposal

News & Insights

Update: Urban Development Authorities’ Proposal

MBIE has released a summary of submissions received on the UDA Proposal released for public comment in February this year.  Greenwood Roche has been following progress of the Proposal which, at least conceptually, has the potential to facilitate the sustainable and innovative growth of our cities.  For more discussion on the Proposal, take a look at our recent article http://www.greenwoodroche.com/news.


Feedback was sought on the overall Proposal, but also on the specific components of the Proposal which was divided into 169 component parts.  In addition to public consultation, MBIE held 45 separate meetings with key stakeholders from both the public and private sectors, and with various Māori groups (including iwi and interest groups). 

350 submissions were lodged during the three month consultation period and, while certain aspects of the proposal were almost unanimously opposed, the Proposal generally received support from over half of the submitters.  Perhaps unsurprisingly, the key aspects opposed including the extent of public consultation; the loss of traditional rights of appeal; the demotion of Part 2 of the RMA; and the transfer of consenting authority to a UDA.  The limited involvement of regional councils was also broadly opposed.  These matters proved less troubling to the development community, who broadly identified that while these matters diverted from traditional pathways, opportunity for effective engagement remained and the diversion could be justified by the increased efficiency and certainty the alternative proposal offered.  Infrastructure was also a core focus of the submissions, which generally identified that it needed to be addressed in a more holistic manner taking into account existing infrastructure and infrastructure providers, and the allocation of capex and opex.

MBIE has produced a useful “summary of the summary”, which can be found here http://www.mbie.govt.nz/info-services/housing-property/urban-development-authorities/document-image-library/Summary-of-submissions.pdf.

It is not clear where the UDAP will go from here.  The new government campaigned on, and has subsequently discussed the establishment of, an Affordable Housing Authority which would be an urban development authority with a focus on delivering housing.  However, whether the UDA model proposed earlier this year will form the basis for the establishment of that authority remains to be seen.  We are following this closely and will keep you informed as news comes to hand.


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Keep Calm and Build Better Cities - The UDA Proposal

News & Insights

Keep Calm and Build Better Cities - The UDA Proposal

“All cities are mad: but the madness is gallant. All cities are beautiful, but the beauty is grim.”
– Christopher Morley


From the London Docklands to Singapore’s Marina Bay Sands, urban development authorities have been responsible for the delivery of many of the world’s most impressive municipal projects.  In February 2017, the National government released a proposal seeking to bring these entities to the New Zealand context.  During the recent elections, Labour campaigned for the establishment of a similar housing focused entity.  In an article recently published in the Resource Management Law Journal, Francelle Lupis and Rachel Murdoch take a closer look at the opportunities that urban development authorities present for the sustainable and innovative growth of our urban centres

The proposal

The UDA proposal is one of a number of measures the Government has proposed in recent years to address housing supply and affordability, encourage economic growth, and elevate issues associated with urban development within an RMA framework that largely ignores the success of our cities in favour of the preservation of natural resources. 

While Auckland’s “housing crisis” may be a particular impetus for these measures, the proposal has much wider scope – namely, the revitalisation of urban areas across the country through partnership between the private and public sectors.  In brief, the urban development authority model offers an opportunity to engage the core competencies of the private and public sectors, combining the efficiency of market discipline with the benefit of public direction, assets and regulatory control.  

Broadly, it is proposed that central government will work together with local authorities to identify potential areas for urban development, which will be led by an urban development authority (UDA).  UDAs may then act as the developer to deliver the project or, alternatively, may delegate those functions to a lead development entity.  An Order in Council would identify each project and its strategic objectives (which become the primary consideration for decision making) in addition to establishing the UDA and allocating its development powers, which are to be selected from a “tool kit” of available powers including land acquisition, planning powers, powers relating to infrastructure and access to financing tools.  The UDA would then engage with the community to draft a development plan to govern the project’s implementation. 

Public consultation on the proposal closed in May this year and, subject to September’s election, we anticipate a Bill early next year.  With the Bill yet to be drafted, and several reviews of the discussion document already in circulation, this article does not purport to closely examine the detail of the proposal.  Rather, the intent of this piece is to consider the opportunities the proposal presents, drawing inspiration from recent examples and successful alternative proposals both locally and further afield.  

The opportunity

The advantages for a nation when its cities are successful are myriad.  Thriving cities invite international investment, attract and retain highly-skilled workers, support industry, draw tourism, encourage arts and culture, and create opportunities for education, research and innovation. The result is a stimulated economy.  Less often acknowledged are the environmental benefits – compact cities reduce pressure on ecological systems overall, create efficiencies, and enable a more sustainable consumption of resources than can occur in a widely distributed pattern of settlement.




Within the existing RMA framework, however, it has been difficult to acknowledge these benefits and to address the pressure that population growth is placing on our cities.  While recent Productivity Commission reports and other Government initiatives (including Special Housing legislation, amendments to the RMA and the NPS-UDC) have served to highlight the challenges, questioning the ability of the RMA to successfully deliver large scale urban projects is not unique to the present Government.  The possibility of urban development authorities has been raised on numerous occasions over the past decade.  Reports in 2006, 2008 and 2009 (commissioned by the Labour-led government) all broadly identified the prospect of such entities designed to co-ordinate large-scale, integrated development – both to respond to challenges associated with New Zealand’s growing (and increasingly urbanised) population and to maximise opportunities for economic growth as our cities begin to compete on the world stage.  As part of its current election campaign, Labour is also proposing the establishment of what is essentially a housing specific urban development authority, known as the “Affordable Housing Authority”.  

The difficulty with the existing framework is the sheer breadth of issues that the RMA and its subsidiary documents seek to address.  Historic heritage, Te hononga a te iwi Māori me to taiao, the natural environment, infrastructure, effects associated with built form and development – the RMA and the various plans developed in accordance with its purpose and principles attempt to serve many masters. 

Recent plan development processes in Christchurch and Auckland demonstrate this challenge all too well.  Considering Auckland’s recently operative Unitary Plan, the end result of a condensed process involving input from thousands of individuals and interest groups, one must acknowledge that the final product was a significant achievement in itself.  However it cannot help but be general in its application – the ability to achieve strategic site specific goals throughout the process was very limited (particularly given that very little time was allocated to consider submissions relating to individual sites or precincts).  Rather than replacing or eroding the existing RMA framework, or carefully developed plans such as this, the UDA proposal offers an opportunity to introduce a supplementary planning regime which can be deployed when the need to elevate strategic objectives in the urban context can be justified.  

While the proposal would shift the balance of assessment towards the strategic objectives of the particular project (with those objectives prioritised over Part 2 and section 104 matters), it does not necessarily follow 
that environmental or community outcomes would be compromised as a result.  Instead, the often prohibitive complexity generated by the prioritisation of RMA matters over other important objectives in the delivery of urban regeneration projects is precisely the mischief that this proposal is seeking to address.  Provided (among other matters) opportunities are afforded for appropriate public participation (a matter we discuss further below), there are, in our opinion, instances where it may well be appropriate for local and central government to determine that a particular strategic outcome needs to trump other concerns – whether that be the regeneration of an earthquake affected city, a housing shortage affecting thousands, the slow decline of an urban centre, or the need to support a significant transport project with co-located intensification. 



International experience has shown there are a number of key “ingredients” required for a project to be successfully undertaken by an UDA and, as such, these should inform (and ultimately limit) the instances where the use of the UDA model is appropriate.  Identified by a Brookings Institution report as a global model for achieving urban renewal, the Copenhagen City and Port Development Corporation is currently leading the large scale regeneration of a section of Copenhagen’s waterfront called Nordhavn.   The Corporation is jointly owned by the city of Copenhagen and the Danish national government.  In addition to Nordhavn, the Corporation has successfully led the transformation of a number of formerly dilapidated urban areas throughout Copenhagen (including Ørestad pictured above), contributing to well over half of the regeneration projects in the city.  The model it has adopted generally operates as follows:

  • National and local government transfer available assets (usually land) to the Corporation.  
  • Local government rezones the land for the appropriate use (i.e. residential or commercial).
  • The land increases in value.
  • The Corporation leverages low cost financing (enabled by the City’s strong credit rating) against the increased value of the land.
  • Financing is used to install infrastructure (or in some instances transit) to enable development of the land.
  • Development of the land is facilitated through various mechanisms including land sales, lease agreements with developers and, in some cases, development of the land by the Corporation itself.  
  • Development generates revenue to service debt.


Very similar models have been adopted by urban development authorities in Australia (for example, Development Victoria with the Melbourne Docklands, or UrbanGrowth NSW with the Bays Precinct in Sydney).  While the structure of, and powers available to, these entities differ in some instances from the proposal, the common ingredients of acquiring land, regulatory control, and powers in respect of the location and construction of infrastructure are, in our opinion, essential to not only conceptualising appropriate development projects but also in incentivising the private sector to participate.  Importantly, these tools will address the vexed issue of fragmented landownership, provide further certainty for the development community and allow for the necessary investment in infrastructure required to support large-scale projects.  There may well be limited instances where the strategic objective will justify the means, but - where the right opportunity exists – there will be a single mechanism in place to encourage collaboration, investment and delivery.

There will be challenges

“What is a city but the people?”
– Coriolanus, Act III, Scene I, William Shakespeare



When the Minister’s decision is final and no correspondence is to be entered in to, how do we ensure that the outcomes enabled by UDAs are really what we want for our cities and urban areas?

Similar to early criticism of the transitional provisions establishing the process for the promulgation of Auckland’s Unitary Plan, much of the debate in respect of the UDA proposal thus far has centred on whether there will be sufficient opportunity for public participation in the absence of traditional appeal rights to the Environment Court.

District plan processes can take years to resolve and other bespoke processes such as Boards of Inquiry now move at a speed and level of complexity simply out of reach of most members of the public.  So the question for any new proposal is whether there might be a better way for individual lay submitters to effectively give voice to their ideas and concerns.  One possible solution – that posed by the proposal – is to require the proponent of the development plan for each qualifying project to undertake extensive community engagement before and during its preparation to ensure that, as far as possible in light of the project’s strategic objectives, the plan reflects the issues of most importance to the community.
The UDA proposal provides opportunities for consultation at several stages of the process:
  • Local authorities must agree with central government that a qualifying project should proceed in their district.  The investigation of a potential project can be initiated by the private sector or even by a community group, for example in the case of local project with widespread support.
  • During the initial assessment of a potential project, early engagement will occur with landowners, iwi and other stakeholders.
  • If the initial assessment makes a case for a proposed development project, pre-establishment consultation will occur, to seek the public’s feedback on, amongst other things, the strategic objectives of the project and any specific public good outcomes.
  • Once a project is established, the UDA must develop and publish a draft development plan, and can amend the draft development plan in response to public submissions.
  • Affected persons can object by way of written submission to the final recommended development plan.


In short, rather than seeking to reduce public participation, the proposal presents an opportunity to explore more innovative methods of doing so.  And for a generation more inclined to post a snapchat story than draft submissions, effective initial engagement is, to our minds at least, far more important than preserving traditional pathways of appeal to the Environment Court.

A similar engagement revolution is currently underway in the post-earthquake context of Christchurch, where traditional public participation and appeal rights in respect of the key planning tools have been substantially removed.  “Share an Idea” was a conversation between Crown, Council and the Christchurch community to gather ideas on how it wanted the central city to be redeveloped following the February 2011 earthquake.  Over the course of two days and through various channels, 106,000 ideas were put forward from the community which went on to inform the drafting of the Christchurch Central Recovery Plan.  More recently, Regenerate Christchurch has begun extensive community consultation as part of the development of a draft Regeneration Plan for the Ōtākaro Avon River Corridor (formerly, the residential red zone).  In addition to establishing technical and community advisory groups, Regenerate Christchurch has actively pursued opportunities to engage with different sectors of the community – from school aged children to groups from a variety of different ethnic and religious backgrounds – to seek input on outcomes for the Ōtākaro Avon River Corridor.

While Regenerate Christchurch’s engagement strategy is still bearing fruit, “Share an Idea” has been commended and feedback on the planning document itself has been largely positive.  While this model has pros and cons, the Christchurch experience demonstrates that there is value in comprehensive community engagement at the outset, followed by the translation of ideas into objectives by those with the expertise to hold the pen.

Beyond effective public participation, there are concerns that a development project’s strategic objectives will be elevated above district plan requirements, Part 2 principles and the assessment of effects under s104 of the RMA.

Decision making in the RMA context means balancing a variety of considerations with a view to achieving the sustainable management of natural and physical resources.  At the heart of that exercise, “effects” - in all their various forms - are king.  However our understanding of what constitutes a true adverse effect has not kept pace with the intensification of our urban centres – we court recognition of our cities on the international stage, yet shy away from consenting significant buildings, citing the potential for dominance, shading and adverse visual impact.  Here, the proposal has true potential.  While the s104 effects assessment will still be relevant to decision making, there is scope to reimagine the weight that should be given to that assessment in light of particular strategic objectives.  In other words, an acknowledgement that those who live in our urban centres must accept both the benefit and the burden of doing so.

The proposal is the boldest initiative yet by the Government to facilitate and provide for urban growth and there will be other challenges as the detail of the Bill is developed - the integration of infrastructure with existing networks, resourcing and front end funding, and the responsibility for debt generated by projects amongst them.  However, when considering the scale of projects that could be delivered and the potential for real collaboration between the public and private sectors, UDAs could change the game.  Perhaps, then, the biggest challenge ahead is to consider what could be, not simply what has always been; to engage with the detail to ensure that the resulting legislation has the benefit of our best thinking, not just our fear of the future.

Francelle Lupis, Principal, and Rachel Murdoch, Lawyer – Greenwood Roche


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Second stage of resource management reforms coming into force mid October

News & Insights

Second stage of resource management reforms coming into force mid October

18 October 2017 marks the commencement date for a number of amendments to the Resource Management Act 1991, Conservation Act 1986, Reserves Act 1977, Public Works Act 1981 and the Exclusive Economic Zone and Continental Shelf Act 2013.


The main objective of this collection of reforms was to ‘fix’ the housing crisis by introducing a number of provisions that would streamline and fast track housing development. 

Among the key amendments coming into force now are:

  • certain boundary activities (such as minor breaches to recession planes and setbacks) will no longer require resource consent and will be deemed to be permitted activities when the affected neighbour gives written approval (section 87BA);
  • council may exempt ‘marginal or temporal’ rule breaches from requiring resource consent (section 87BB);  
  • processing times for controlled activities have been reduced from 20 working days to 10 working days through the ‘fast tracked process’ (section 95(2)(a));  
  • a new definition for ‘residential activities’ is introduced that limits notification and appeal rights for residential activities. Residential activities are given the broad definition of activities “ that require resource consent under a regional or district plan and that is associated with the construction, alteration, or use of 1 or more dwelling houses on land that, under a district plan, is intended to be used solely or principally for residential purposes”(section 95A(6));
  • a new step by step by process to determine whether notification is required is introduced.  This also includes a presumption that controlled activities will not be publically or limited notified (section 95A and section 95B);  
  • when considering applications for resource consent or notices of requirement for designations, councils must regard offsetting measures proposed by an applicant (section 104(ab) and section 168A(3A));  
  • new tests to limit the scope of consent conditions have been introduced. Consent conditions must be: ‘directly connected’ to an adverse effect of the activity on the environment, an applicable rule, or a national environmental standard; for the implementation of the consent; or agreed by the applicant (section 108AA);and  
  • appeal rights to the Environmental Court are now limited for resource consents relating to subdivisions, ‘residential’ activities, and ‘boundary’ activities that are non complying activities (section 120(1A)). The scope of appeal has also been restricted for submitters to points raised in their submissions (section 120(1B)). 

While the majority of these changes are aimed towards smaller residential projects and will not have an effect on larger more complex projects, there are some changes that will certainly change the way applications are framed.  By way of example it is noted that limitations have been placed on appeal rights for subdivisions which relate to both applicants and submitters.  As there will be no appeal rights to the Environment Court for discretionary subdivision consents, applicants may consider designing their proposals to trigger non–complying activity rules, in order to preserve their right to appeal should the application be decline – a somewhat perverse outcome of reforms designed to speed process.  Submitters will also need to be cautious in drafting submissions to ensure they are wide enough preserve appeal rights. Again it is not clear how this will achieve the purpose of streamlining rather than expanding the process!

For a comprehensive list of the RLAA amendments see the Ministry for the Environment checklist available by following the link below or contact a member of the Greenwood Roche Resource Management Team

http://www.mfe.govt.nz/sites/default/files/media/overview-changes-resource-legislation-amendment-act.pdf


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Residential Tenancies Amendment Bill (No 2)

News & Insights

Residential Tenancies Amendment Bill (No 2)

Residential Tenancies Amendment Bill (No 2)

The Residential Tenancies Amendment Bill (No 2) was introduced on 23 May 2017 and public submissions to the Social Services Select Committee on the Bill closed on 22 August 2017.


Purpose of the Bill

The Bill proposes to address issues relating to:

  • the obligations of landlords and tenants for damage or destruction to rental premises;
  • methamphetamine manufacture and use in residential premises; and
  • the application of the Tenancy Tribunal's jurisdiction in relation to premises not lawfully able to be used for residential premises.
Limit on tenant liability resulting from careless damage
 
Amendments on the tenant liability front seek to swing the balance back in favour of landlords, following the recent Osaki Court of Appeal decision that tenants are immune from a claim for loss resulting from careless or negligent action by the tenant or a guest of the tenant, to the extent provided in sections 268 and 269 of the Property Law Act 2007.
 
Before Osaki, insurers had the ability to recover losses from the person who had caused the damage (including insurance excess payments).  Following Osaki, however, the tenant is not liable for any costs of careless damage where the landlord is insured, nor for damage caused by certain events (including fire, flood or explosion), whether or not the tenant carelessly caused the events and whether or not the landlord is insured for those events.  Nor are landlords are able to recover the cost of insurance excess from tenants.
 
The Bill caps the tenant’s liability in relation to “each incident of damage”, in the case of a careless act or omission, at the value of the landlord's insurance excess. If the landlord is not insured, the tenant’s liability is limited to the value of four weeks' rent. Quite how the limitation of “each incident” will be construed will likely provide some room for disagreement, potentially increasing disputes in front of the Tenancy Tribunal as to whether the damage is careless or intentional.
 
Under the Bill, the landlord is obliged to disclose its insurance cover at the beginning of the tenancy and will be liable for exemplary damages if it fails to do so.
 
Additionally, the Bill limits the ability of insurance companies to enforce the rights of their clients and prevents insurance companies from taking account of a tenant’s payment for careless damage to the landlord when calculating premiums. As a result, insurers say their risk is increasing and premiums for rental properties may increase.
 
The other point to note on liability is that even if a bond to the value of four weeks’ rent is held, the liability limitation now introduced may operate to mean that the landlord may not be entitled to all of the bond in the case of a careless act or omission by the tenant, if the landlord’s insurance is less than four weeks’ rent. The likely outcome is that landlords will increase insurance excess to the equivalent level.
 
Methamphetamine manufacture and use in residential premises
 
In a move that will be welcomed by landlords, the Bill allays concerns following a Ministry of Health funded report released in late 2016 that cast doubt on Ministry’s guidelines for the “unsafe” level of methamphetamine contamination in residential properties.
 
The Bill provides a right of entry for methamphetamine-testing without the tenant’s permission, an obligation to disclose the results to the tenant within 7 days of receiving them, and an effectively immediate right of termination for either party if the results reveal a particular level of methamphetamine contamination. Rent will cease to be payable if the tenant was not responsible for the contamination.
 
The long awaited New Zealand Standard (NZS 8510) released on 29 June 2017 assigns significance to contamination levels and documents appropriate remedial action.  Regulations will be developed to prescribe a “maximum acceptable level” of methamphetamine contamination for residential premises, provide how testing must be carried out, and prescribe the decontamination process.
 
While it’s a shame the Regulations are not available for comment at the same time, at least the Bill is heading in the right direction on this costly issue.
 
Premises unlawful for residential use
 
The 2013 High Court decision in Anderson v FM Custodians Ltd has meant that the jurisdiction of the Tenancy Tribunal was limited to making orders only in relation to “residential properties”.
 
In another measure bolstering the position of landlords, the Bill now clarifies the Tribunal’s jurisdiction to ensure it can hear cases that relate to premises “occupied or intended to be occupied for residential purposes”, regardless of whether the occupation is lawful. The Tribunal will have full jurisdiction to order the landlord to refund all rental paid by the tenant for the full period of occupation. The proposed change will have a significant implication for landlords of properties with secondary dwellings (for example, “granny flats”) that don’t comply with the Building Act and/or the Resource Management Act.


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