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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. ..
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 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;
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 CommentThe 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.
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...
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.
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...
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.
“All cities are mad: but the madness is gallant. All cities are beautiful, but the beauty is grim.”
– Christopher Morley..
“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 centresThe proposalThe 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 opportunityThe 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:
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.
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:
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
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...
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 BillThe Bill proposes to address issues relating to:
The Land Transfer Act 2017 (Act) has received Royal Assent and will be in force by 10 January 2019. It will repeal the Land Transfer Act 1952 (Old Act) and is intended to modernise, simplify and consolidate the Old Act and its amendments. Some provisions such as the amendments to the Property Law Act 2007 (PLA) regarding covenants in gross may come into force earlier than 2019...
The Land Transfer Act 2017 (Act) has received Royal Assent and will be in force by 10 January 2019. It will repeal the Land Transfer Act 1952 (Old Act) and is intended to modernise, simplify and consolidate the Old Act and its amendments. Some provisions such as the amendments to the Property Law Act 2007 (PLA) regarding covenants in gross may come into force earlier than 2019.
In the main, the Act is not intended to substantively change our land transfer laws. However, some controversy exists regarding the right of an owner to reclaim title under the manifest injustice provisions arguably eroding the principle of indefeasibility. Also, not all changes promoted have been adopted, such as placing more onus on mortgagees to verify the identity of their clients, separately defining encumbrances and permitting senior legal executives to sign and certify instruments in Landonline. Some key changes are set out below.New terminologyThe Act includes new terminology aimed at modernising the language used. For example, a “certificate of title” and the clumsy “computer freehold/leasehold/interest register” will be a “record of title”, and “registered proprietor” becomes “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 safetyThe Registrar-General of Land will be able to refuse to provide a copy of an instrument or title that identifies a person, as well as refuse to include those details on the public register in the first place, if it is satisfied that the information discloses or is likely to disclose the person’s location and prejudice their safety. CaveatsAn express right for an owner of an estate or interest to lodge a caveat against their own title where there is a real risk of fraud. Guaranteed title searchesGuaranteed 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 must obtain a “guaranteed search” within 14 days before settling the transaction, and must lodge the transaction documents within 2 months after settlement. The Act updates these periods to reflect the electronic nature of land transactions by:
We are delighted to announce that as of June 2017 we have become a Concerto Partner of the New Zealand Symphony Orchestra. Now in its seventieth year, the NZSO is a truly world class national orchestra, consistently blowing away audiences’ expectations with its marvellous performances. In looking for a partner in the arts, we wanted an organisation that would resonate as very special, national, and with an ability to inspire both young and old. The NZSO is a perfect fit and we look forward to a long relationship...
We are delighted to announce that as of June 2017 we have become a Concerto Partner of the New Zealand Symphony Orchestra. Now in its seventieth year, the NZSO is a truly world class national orchestra, consistently blowing away audiences’ expectations with its marvellous performances. In looking for a partner in the arts, we wanted an organisation that would resonate as very special, national, and with an ability to inspire both young and old. The NZSO is a perfect fit and we look forward to a long relationship.
Please visit the NZSO website to check out the 2017 Season, and help us to support the Orchestra. And if you are keen to attend a particular concert with us, do let us know as we would be keen to host you! We are also pleased to announce that Greenwood Roche specially sponsors Sam Jacobs, Section Principal Horn. Sam is an extraordinary French horn player, and has just recently returned from the UK where he was Principal horn with the Royal Philharmonic Orchestra in London and is seen as one of the rising future leaders of the Orchestra.We have recently helped the NZSO move to temporary new Wellington CBD premises, and will be assisting it later in the year with the new Wellington Music Hub, in conjunction with Wellington City Council and Victoria University.
The Ruataniwha Water Storage Scheme will flood 22 hectares of land in the Ruahine Forest Park in the Hawke’s Bay. The Forest Park is held by the Minister of Conservation under the Conservation Act 1987 as conservation park, a category of specially protected land. The Director-General of Conservation decided to effectively downgrade the conservation status of the land to be flooded, to enable it to be exchanged for other land to be provided by the proponent of the dam, Hawkes Bay Regional Investment Company Limited. ..
The Ruataniwha Water Storage Scheme will flood 22 hectares of land in the Ruahine Forest Park in the Hawke’s Bay. The Forest Park is held by the Minister of Conservation under the Conservation Act 1987 as conservation park, a category of specially protected land. The Director-General of Conservation decided to effectively downgrade the conservation status of the land to be flooded, to enable it to be exchanged for other land to be provided by the proponent of the dam, Hawkes Bay Regional Investment Company Limited.
The Director-General’s decision, challenged by Forest and Bird, was based on the relative conservation values of the 22 hectares of forest park compared with the conservation values of the land for which it was to be exchanged. The evidence was that the forest park land has high conservation values which warrant continued protection, and there was no suggestion in the Director-General’s decision that the forest park land did not still warrant protected status. The Director-General’s decision was made on the basis that overall, there would be a net conservation gain from the exchange.
The majority of the Court of Appeal held that the conservation park status of the land could only be revoked if its intrinsic values had been detrimentally affected such that it did not justify continued preservation, for example if the purposes for which the land is was held were undermined by natural or external forces. The majority of the Supreme Court agreed, although it did not consider that only complete destruction of the values justifying protection and preservation could warrant revocation. Rather, the status could only be revoked if the intrinsic values of the land did not justify continued preservation and protection so that the status of conservation park was inappropriate. In majority decisions, both Courts held that that any gain arising from an exchange should not have been considered when deciding whether to revoke the special conservation status of the land.
The decision has been celebrated by environmental groups but the Government has signalled that it may change the law to enable such exchanges to occur in future. In her press release of 6 July 2017, Conservation Minister Hon Maggie Barry noted that, for the last 30 years, the Government believed that the legislation allowed low value conservation land to be swapped for higher value land, and that law changes to promote best conservation outcomes would now need to be investigated. The Government’s view is that the Supreme Court majority decision that the revocation of conservation status and the exchange of land steps could not be conflated created a clear problem, particularly on the back of the differences between the High Court and Court of Appeal.
Meanwhile, work to secure Department of Conservation land for the proposed Waimea dam in the Tasman District is reported to be on hold pending advice on the implications of the Supreme Court decision for that project. Tasman District Council is reported to be considering acquiring the conservation land it requires under the Public Works Act 1981 instead. Forest and Bird does not appear to have a formal position on use of the PWA as yet but have suggested that there are issues with the use of the PWA process. Given that local authorities have no power to “take” Crown land under the PWA, we expect that any attempt to use the PWA to acquire conservation land in the absence of agreement with the Ministers of Conservation and Land Information would likely fail. Those same issues would apply to any attempt by the Hawkes Bay Regional Council to take land for the Ruataniwha scheme. The Hawkes Bay Regional Council is reported to be divided on any potential use of attempting the PWA process.
Proponents of the Waimea dam may be best to wait for whatever solution Parliament chooses to offer – but that wait will likely need to extend beyond the election.
Greenwood Roche extends its warmest congratulations to Helen Davidson, General Counsel and Complaints Manager for the Institution of Professional Engineers New Zealand. The award recognises Helen’s outstanding contribution to both to IPENZ and the legal profession. ..
Greenwood Roche extends its warmest congratulations to Helen Davidson, General Counsel and Complaints Manager for the Institution of Professional Engineers New Zealand. The award recognises Helen’s outstanding contribution to both to IPENZ and the legal profession.
The award was one of two presented to Helen during the evening, who has had a significant role in transforming IPENZ’s complaints and disciplinary process over the course of the year, in addition to providing excellent support to the Institution through her role as General Counsel. Greenwood Roche is proud to continue its support of ILANZ and to continue working alongside many of its members, providing pragmatic solutions in the delivery of various projects and initiatives that its members undertake. In his speech at the awards, Greenwood Roche Partner Doran Wyatt highlighted the increasing recognition of the value of in-house lawyers not just in terms of their legal input, but also in management and strategic oversight of their respective organisations. Greenwood Roche again wishes to congratulates all nominees and award winners on their various achievements throughout the year.