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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...

Greenwood Roche Young Achiever of the Year 2017

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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

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...

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

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

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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

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. ..

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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)

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...

Residential Tenancies Amendment Bill (No 2)

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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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Key changes introduced by the Land Transfer Act 2017

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...

Key changes introduced by the Land Transfer Act 2017

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Key changes introduced by the Land Transfer Act 2017

Key changes introduced by the Land Transfer Act 2017

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 terminology
The Act includes new terminology aimed at modernising the language used. For example, a “certificate of title” and the clumsy “computer freehold/leasehold/interest register” 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 safety
The 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.
 
Caveats
An 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 searches
Guaranteed searches back up the security of the land transfer system, by providing a right to compensation if a purchaser of an interest in a land transaction suffers loss due to the registration of a competing interest. Under the Old Act, the purchaser 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:
 

  • requiring that a guaranteed search of the title be obtained within 5 working days before settlement; and
  • reducing the period after settlement during which loss may occur to 20 working days.
 
As with the Old Act, no compensation will be payable if the title search disclosed the competing interest.
 
Compensation
Compensation is payable by the Crown when loss occurs in certain circumstances (including, but not exclusively, under “guaranteed search” situation). Under the Old Act, the calculation for compensation is based on the land value at the time the loss occurred. The Act will shift the date on which compensation is to be assessed to when the claimant “gained (or ought reasonably to have gained) knowledge of the loss”.
 
The Act confirms that the value of the lost estate or interest in land is the “market value”.
 
The High Court may adjust compensation where the amount determined by the prescribed calculation is inadequate or excessive, and may determine at which date the market value should be assessed which may include a revised assessment as at the day of the court judgment.
 
Cancellation of land transactions in cases of “manifest injustice”
The High Court will have limited discretion to order the alteration of titles to avoid “manifest injustice”, but only where compensation or other damages would not properly address the injustice. The High Court may cancel registration of a land transaction after taking into account how the land was acquired, the length of time the parties have owned or occupied the land, the nature of any improvements made, the special characteristics of the land and its significance, and any other relevant circumstances. The Court cannot make an order if the estate or interest has subsequently been transferred to a third person acting in good faith.
 
Fraud
Fraud is one of the main exceptions to an owner’s title to land.  “Fraud” is now defined as forgery or other dishonest conduct of an owner or agent of an owner in acquiring an estate or interest in land. It is worth noting that, for the purposes of a Court order cancelling a land transaction in the case of “manifest injustice”, the existence of forgery or other dishonest conduct will not itself constitute the required level of injustice.
 
Introduction of covenants in gross and what it means for encumbrances
Currently it is not possible to register, on a certificate of title, an instrument that imposes obligations or restrictions on a landowner “in gross” – i.e. in favour of another person, rather than benefitting another parcel of land. To reduce the widespread use of encumbrances, which are a form of mortgage, as a mechanism for securing what are regarded more as private contract arrangements the PLA will be amended to allow covenants in gross to be noted on the record of title. This has been long awaited and should provide a registration option which is more palatable especially to banks. It will also allow affected owners to seek modification or cancellation of existing encumbrances and replace them with covenants in gross.
 
While encumbrances are commonly used as a mechanism to register covenants, they are also properly used to register rent-charges on land, and encumbrances will still be referred to in the provisions governing mortgages. So, the change still allows encumbrances to remain a viable instrument of title but, where the real purpose is to require a landowner to do or not do something for the benefit of someone else, a covenant in gross will be the appropriate instrument.
 
Registrar’s power to correct titles
The Act clarifies the circumstances in which the Registrar will be able to correct titles. The Registrar’s power will be limited to circumstances such as correcting an error by the Registrar, an error made by a person preparing a document or information for registration, recording a boundary change due to accretion or erosion, or giving effect to a court order.
 
Overriding statutes
The Act repeals the Statutory Land Charges Registration Act 1928, with the Act dealing with the registration, priorities and release of relevant charges.
 
Regulations
The Land Transfer Regulations 2002 will be revoked but will be replaced with new regulations still to be issued.


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Our New Zealand Symphony Orchestra Partnership

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...

Our New Zealand Symphony Orchestra Partnership

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Our New Zealand Symphony Orchestra Partnership

Our New Zealand Symphony Orchestra Partnership

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.


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Supreme Court Confirms Department of Conservation’s Decision on Ruataniwha Dam Land Exchange Unlawful

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. ..

Supreme Court Confirms Department of Conservation’s Decision on Ruataniwha Dam Land Exchange Unlawful

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Supreme Court Confirms Department of Conservation’s Decision on Ruataniwha Dam Land Exchange Unlawful

Supreme Court Confirms Department of Conservation’s Decision on Ruataniwha Dam Land Exchange Unlawful

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.


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ILANZ Greenwood Roche Private Sector In-House Lawyer of the Year Award 2017

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. ..

ILANZ Greenwood Roche Private Sector In-House Lawyer of the Year Award 2017

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ILANZ Greenwood Roche Private Sector In-House Lawyer of the Year Award 2017

ILANZ Greenwood Roche Private Sector In-House Lawyer of the Year Award 2017

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. 


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King Salmon Reigns

The High Court decision of Davidson Family Trust v Marlborough District Council [2017] NZHC 52, clarifies how the King Salmon (Environmental Defense Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38) decision should be applied in relation to resource consent applications...

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King Salmon Reigns

The High Court decision of Davidson Family Trust v Marlborough District Council [2017] NZHC 52, clarifies how the King Salmon (Environmental Defense Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38) decision should be applied in relation to resource consent applications.


In summary, the Supreme Court in King Salmon found that unless there is invalidity, incomplete coverage or uncertainty of meaning in the statutory planning documents, there is no need to look at Part 2 of the RMA when making decisions on plan changes. The Court reasoned that Councils are required to give effect to Part 2 in preparing planning documents, therefore a further assessment of Part 2 would be unnecessary duplication.

When the King Salmon case came out it was considered a ‘game changer’ as it related to plan changes, however it did not clarify whether the ruling applied to decisions on resource consents. Since King Salmon, the Environment Court has taken a tentative approach on how King Salmon should be interpreted in respect of resource consent applications (see: RJ Davidson Family Trust v Marlborough DC [2016] NZEnvC 81 and KPF Investments v Marlborough DC [2014] NZEnvc 152). The Davidson High Court judgement clarifies how decision makers should apply Part 2 of the RMA when assessing a resource consent application. Davidson confirms that the ruling in King Salmon applies to resource consent applications, as it would be “inconsistent with the scheme of the RMA and King Salmon to allow Regional or District Plans to be rendered ineffective by general recourse to Part 2 in deciding resource consent applications” (Davidson Family Trust v Marlborough District Council [2017] NZHC 52 at [63]).

In practical terms, this means that in completing a resource consent application the main focus should be on the planning documents, such as National and Regional Policy Statements and Regional and District Plans, rather than focusing on the matters outlined in Part 2 of the RMA. Part 2 of the RMA should be referred to only in circumstances where plans are outdated or there are inconsistent objectives and policies. Many resource management practitioners have adopted this approach since King Salmon. The Davidson case confirms that this is the correct approach.

The High Court delivered their judgement on the 31st January 2017, so it is possible that this decision will be appealed to the Court of Appeal.


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