New Zealand’s Specialist Project Lawyers

Faringdon Oval is a 69.3ha extension of the existing, well established Faringdon community in Rolleston, which has developed over the last decade under the Operative Selwyn District Plan, the Housing Accords and Special Housing Areas Act 2013, and more recently, the COVID-19 Recovery (Fast Track Consenting) Act 2020. 

The Fast Track consent for Faringdon Oval authorises the subdivision, land use and associated activities needed to facilitate the addition of 684 residential units to the Rolleston housing supply with an additional 462 residential units to be enabled through super lots with minimum density requirements. The development will support a range of residential housing types and densities, high quality landscaping, open space reserves, a neighbourhood centre and a network of transport links to existing residential areas and the Rolleston town centre.

Greenwood Roche is delighted to have assisted HDL in delivering a development that will contribute significant housing supply in such a strategic location for the wider Canterbury region.

The variation provides for changes in the location and footprint of the proposed Inpatient Building which will be housed on the old Cadbury factory site. The variation also accommodates a new plant building between the Inpatient Building and the southern site boundary, and technical construction related changes such as updated pile designs and driving methodology for the Inpatient Building and its two link bridges.

Enabling works for the Outpatient Building are complete and above-ground construction has begun with a target ‘go-live’ date of 2025. Enabling works are underway for the significantly larger Inpatient Building which is scheduled to ‘go-live’ in 2029.  The resource consent application to authorise the above-ground construction and operation of the Inpatient Building has now been lodged with the Environmental Protection Authority for referral to an expert consenting panel under the COVID-19 Recovery (Fast-track Consenting) Act 2020.  Subject to securing all necessary approvals, construction of that Building is scheduled to begin in Q1 2024.

The Greenwood Roche team has been advising Te Whatu Ora on the resource management and property aspects of the New Dunedin Hospital project since 2017. 

We advised Bei Group through the initial application, including notification and hearing phases and, following approval of the plan change, an appeal by Kristin School to the Environment Court largely in respect of transport matters.  Concurrently, Greenwood Roche provided advice on conflicts between Auckland Council’s Plan Change 78 (Intensification Planning Instruments required by the National Policy Statement Urban Development) and proposed Variation 3 to the Auckland Unitary Plan.  Ultimately Variation 3 was withdrawn by the Council and the appeal was resolved.  On 9 December 2022, Auckland Council’s planning committee approved the operative status of the Plan Change, with formal notification to follow in early 2023.

Bei Group Limited can now progress its vision for its 13.7ha site at 473 Albany Highway - to create a vibrant, diverse and high-quality residential neighbourhood, with a range of housing typologies that will be supported by a new internal street network, quality public open space and a commercial hub to service resident demand.  Greenwood Roche is delighted with this outcome and is looking forward to watching this exemplar development come to life. 

As part of its masterplan the applicant proposed a suite of positive benefits that would reduce effects of the subdivision on the environment and improve overall amenity for the wider community.  This included extensive replanting, restoration and enhancement of two natural areas - the Hurupaki Cone – which holds particular significance as an Outstanding Natural Feature and an Outstanding Natural Landform – and the Waitaua Stream.

The reporting team on behalf of Whangārei District Council recommended that the application be declined as it did not achieve a “net environmental benefit” as required by the relevant objectives and policies of the operative plan.  The application was nevertheless granted by an Independent Commissioner who concluded that overall effects are likely to be minor and that, if consent was refused, then less acceptable outcomes would likely eventuate.  An appeal to the Environment Court was made in respect of conditions; however these were ultimately resolved by agreement, with the Court’s final consent determination recently issued under urgency.

These negotiations continued our involvement in the project, working alongside Beca and Colliers to develop a market engagement strategy and assessing options that helped secure a better, faster and more efficient transaction. 

Don Lyon, Chief Strategy & Operations Officer at Beca: “[The team at Greenwood Roche was] practical, collaborative and constructive, which on a complex deal with short timeframes, assisted greatly to reach agreement, on terms acceptable to its Board. Greenwood Roche were instrumental in developing a robust commercial strategy, then helping us negotiate a comprehensive and detailed Heads of Terms, that enabled us to discuss and resolve all major issues with the prospective landlord at the earliest possible time, giving confidence to our Board and significantly accelerating subsequent negotiations, once we progressed to a full Development Agreement, Agreement to Lease and Lease.”

A key focus for both Beca and Precinct was the performance of the building, including sustainability initiatives.  The new building is designed to achieve a 6-star Green Star rating and a 5-star NABERSNZ rating.  

The Greenwood Roche team was led by Barry Walker (Partner), Michael Bennett (Associate) and Ben Petersen (Lawyer), with specialist input from others within the firm. 

The transaction was concluded swiftly and maintained programme for the project thanks to the collective efforts of Beca, Greenwood Roche, Colliers, Precinct Properties and Russell McVeagh.  

Plan Change 5 was approved by the Hauraki District Council following a public notification and hearings process.  Development of the site in accordance with the approved zoning and Structure Plan provisions will enable approximately 240 residential lots of various sizes to be provided, and a new chapel and associated commercial and visitor accommodation offerings to be developed.  Development of the site will contribute meaningfully to Paeroa’s housing stock and to attract tourism to the Paeroa area. On-site amenity for future residents, public open spaces, adaptation of existing racecourse buildings on the site, and community activities and facilities will also be provided. 

Resource consent for the stage 1 foundation works was granted on 23 December 2021, and the granting of this subsequent consent will enable the establishment of the new Outpatient building, the first of the two new clinical buildings that will comprise the New Dunedin Hospital.

Housing a range of consultation and treatment spaces, day surgery facilities, and procedure and diagnostic services, works on the Outpatient building are anticipated to commence in early October 2022.  Utilising the fast track consenting legislation has enabled the development to stay on track despite the challenges of the last two years.

A team from Greenwood Roche, led by Lauren Semple and Julian Smith, are advising on all consenting and property matters relating to the New Dunedin Hospital.  

The village will comprise eight interconnected buildings, ranging from three to eight storeys in height, containing 316 independent living units, serviced units and care / dementia rooms adjacent to the Parnell Train Station and at the foot of Auckland Domain.   

Greenwood Roche worked with the wider project team to develop the proposal for a retirement village at the Parnell site over a number of years and subsequently acted for Summerset Villages (Parnell) Limited through the application, public notification and hearings process, with consent being granted by the Council in May 2021.  Residential neighbours of the proposed village then appealed to the Environment Court against the Council’s decision to grant consent, seeking extensive changes to the village design and to conditions of consent relating to the lengthy construction period.  Through alternative dispute resolution processes, Greenwood Roche successfully negotiated with the appellant and other interested parties to resolve the appeal and a consent order was issued by the Environment Court in August 2022, enabling the development to proceed. 

Our very own John Greenwood opened the evening with a summary of the Report of the Expert Working Group on Managed Retreat – A Proposed System for Te Hekenga Rauora/Planned Relocation and its recommendations, before our panel opened its discussion.  The evening closed with an informal Q & A session, where audience members had the opportunity to weigh in and quiz our panel members.

Over the course of the evening, a diverse range perspectives and concerns were aired and the discussion was educational and thought-provoking.  Key discussion points included:

• the ‘game of chicken’ between banks, insurers and Government, where no one wants to be the one to tell people they can’t live in their homes any more.  As a result of this, at-risk communities aren’t even aware of the scale of risk.
• the need to consult with communities.  Firstly, if a planned relocation system relies on using legislative powers as a primary tool to relocate communities then ‘the battle is already lost’.  Secondly, New Zealanders have deep connections to the whenua, and should only be made to leave if it is essential.  Thirdly, it is crucial that a Tiriti-based approach to planned relocation is taken.
• How do we plan for the scale of relocation required?  Researchers have estimated that over 282,000 houses, with an estimated replacement value of over $213 billion, are in flood hazard areas across Aotearoa New Zealand.  Further, around 80% of the marae in the country are located on or near the coast or near flood-prone rivers.
• the limited current powers of local authorities in this area.  For example, local authorities can approve the building or strengthening of seawalls, but are not empowered in relation to many other mitigation or adaptation activities, so naturally, people lobby for building or strengthening seawalls, irrespective of how effective it will be.

 We look forward to continuing the conversation going forward and hosting more events of this type as part of our commitment to improving broader outcomes under our new GreenPrint initiative.

 Finally, a special thank you to all our panellists: Rawiri Faulkner (Environment and Culture at Ngāti Toa), Alison Howard (Manager for Climate Change Response at Wellington City Council), and Peter Nunns (Director of Economics at Te Waihanga / the New Zealand Infrastructure Commission).

Whakamihi to the team behind Wellington’s new Tākina Wellington Convention & Exhibition Centre – Wellington City Council, Willis Bond, Studio Pacific Architecture, Dunning Thornton Consultants, Beca, Holmes Fire, LT McGuinness and all the subcontractors and suppliers, which took home the highest accolade, the Greenwood Roche Supreme Excellence Award at the recent annual Property Council - Wellington Property Peoples Awards.  Over 360 guests, including a large contingent from Greenwood Roche, enjoyed the evening-long celebration at Tākina.

In a rare unanimous decision, judges commended the project team for the seamless delivery of a project of immense vision, scale and complexity, particularly when faced with the unprecedented disruption of the Covid-19 pandemic.

Judge Paul Robinson says, “the collaboration of the Tākina team has resulted in an extraordinary asset for the city – stunning architecture delivered on time and on budget – that greatly enhances the city and region.”

“Tākina is the Capital’s largest built infrastructure investment for two decades, spanning a build period of 3.5 years. Home to exhibitions and conventions which will boost tourism and dollar spend in Wellington, Tākina is a catalyst for further development in Wellington and greater investment in the region.”

We would like to extend our congratulations to all other award recipients and nominees from the evening with a special mihi to Lewis England, General Manager of Property Acquisition and Operations at Te Rūnanga o Toa Rangatira, who was awarded the coveted Beca Young Achiever of the Year Award and Richard Findlay, Managing Director of Colliers Wellington, who was presented with The Outstanding Leadership Award.

 Thank you to the team at Property Council New Zealand for organising the event and celebrating industry success.

 Greenwood Roche looks forward to continuing our long association with the Awards in 2024.

The NES-CF will apply to both plantation forests and exotic continuous-cover forests (carbon forests) that are established for commercial purposes.

The intention is that the environmental effects of large-scale forestry on the environment, communities and rural economies will be able to be better managed.

The NES-CF are clear national standards on the way forests can operate; regulating the activities of afforestation, pruning and thinning to waste, earthworks, river crossings, forestry quarrying, mechanical land preparation and replanting. 

The key changes from the NES-PF are that carbon forests will now be regulated by the standards (in addition to plantation forests) and there are greater powers for local authorities.  There is also a new permitted activity condition to manage slash at harvest and new requirements around the management of wilding trees.

Recent cyclones and extreme weather events and subsequent media coverage have brought the issues of location of forests and slash management into the public arena.  Whether the sharp focus on foresters is fair given surveys have shown only 2% of the post Cyclone Gabrielle debris in areas such as Wairoa was forestry slash appears to be a moot point. 

The NES-CF gives councils more control over the location of forestry and councils have the flexibility to introduce rules that reflect the views of the local communities through their planning processes. Councils can now also consider the following additional matters of discretion:

• planting location and species, including planting density and establishment practice;
• future harvesting and earthworks effects;
• the level of risk to communities and infrastructure that might be adversely affected by slash or sediment;
• the forest type (plantation or exotic continuous-cover); and
• management requirements to avoid adverse effects on ecosystems, freshwater, coastal and marine area, communities and infrastructure.

For the purposes of harvesting, land has been zoned green, yellow, orange or red.  Harvesting is a permitted activity in green, yellow and orange zones.  Limited harvesting in a red zone is also permitted in certain circumstances.  This hasn’t changed under the NES-CF.  What has is the slash management rules.  Now, in orange or red zones, slash from harvesting that is “sound wood” (wood that can be safely lifted using harvesting equipment and transferred to a landing without degrading or breaking up) must be removed unless it is unsafe to do so if it has a length of over 2 metres and a large end diameter of 10cm.  Some residual slash larger than this size (not exceeding 15m³ per hectare of the cutover) may be left on the site.  If the forest owner can’t meet this requirement, harvest will be a controlled activity and they will need to apply for consent.

A number of other technical and operational amendments have been made to the NES-PF. 

It will be interesting to see how these amended regulations affect our forestry industry going forward.  Regional differences will likely make navigating the consenting and forestry management and compliance spaces more complex and costly.  These additional restrictions and costs combined with increased ETS costs and a less forestry friendly overseas investment regime may ultimately result in less forestry over time.  This raises the question of how New Zealand will meet its domestic and international climate change targets. 

We were lucky enough to have a diverse range of perspectives represented, and the discussion was both informative and thought-provoking. We learned a lot about the upcoming challenges and opportunities that all parts of the industry see ahead in the coming year and beyond, and how different parts of the sector are reacting and preparing. We look forward to continuing the conversation with them and our wider community. Stay tuned for articles and other content that will follow on from our discussion – we believe that the insights shared at the event will be valuable to anyone working in the property and construction sector.

Finally, thank you to all of our panellists, Sharon Zollner - Chief Economist at ANZ New Zealand, Patrick Dougherty - General Manager (Construction & Innovation) at Kāinga Ora - Homes and Communities, Ralph Simpson - General Counsel (Disputes & Commercial) at Fletcher Building,  Jeremy Hay- Managing Director at RCP, and Tamati Parker - Director at C3 Construction.

Case Summary

The case involved two adjoining properties.  Bunnings Limited (Bunnings) owned one of the properties (Gilmore Site).  While the Gilmore Site was big enough for a Bunnings home improvement store, it fell short of the size required for a Bunnings Warehouse.  To establish a Bunnings Warehouse and to effectively compete with the Mitre 10 MEGA store, situated a mere 500 metres from the Gilmore Site, Bunnings would have needed to acquire the property adjoining the Gilmore Site.

To prevent this, NGB Properties Limited (NGB), a company related to the owner of the Tauranga Mitre 10 MEGA, acquired the property adjoining the Gilmore Site.  NGB then proceeded to further protect its interests by registering on the title an encumbrance containing a land covenant.

This covenant included a statement which provided that the owner of the land would not use any portion of the property for the purpose of carrying out the business of a hardware and home improvement retail store.

The Commerce Commission (Commission) received a complaint about NGB’s acquisition of the property adjoining the Gilmore Site and registration of the encumbrance against the title, and opened an investigation.

Following the Commission’s investigation, NGB accepted that the covenant contained in the encumbrance had the purpose of substantially lessening competition in the relevant market.  Accordingly, NGB acknowledged that it had breached section 28 of the Commerce Act 1986 (Act).  Section 28 prohibits the requiring, giving, carrying out, or enforcing of a covenant that has the purpose, effect, or likely effect of substantially lessening competition in a market.

When considering the appropriate penalty, Cooke J noted that, as the encumbrance was registered to impede Bunnings and other potential competitors from competing with the nearby Mitre 10 MEGA, it was important to impose a penalty that would serve as an effective deterrent to others.

Cooke J determined that, as no actual commercial gain arose from the offending, the maximum penalty imposable was $10 million.  He then considered the following mitigating factors / factors which lessened the seriousness of the offending, before accepting the parties’ proposed penalty of $500,000:

• Section 28(4) of the Act rendered the encumbrance unenforceable as its purpose was to substantially lessen competition.  Although accepting the Commission’s argument that removing the encumbrance would be costly and not necessarily straightforward, Cooke J determined that this ability to apply for removal must reduce the significance of the breach.
• NGB was unaware that the encumbrance was unlawful.  Although Cooke J acknowledged that a significant penalty should be imposed to bring light to the illegitimacy of such conduct, he took the view that NGB’s ignorance made the offending less serious.
• As NGB removed the encumbrance as soon as it became aware of its breach, and as it sold the property without the covenant, it did not benefit from the covenant nor did any anti-competitive effect arise from it. 
• NGB co-operated with the Commission, was a first-time offender, and took steps to address its breach (by removing the encumbrance and selling the property).

Significance

This case is important in the context of managing competitive behaviour.  Not only does it mark the first instance where the court has imposed a penalty for a breach of section 28 of the Act but, coupled with the following recent developments, it also sends a clear signal that there has been a tightening of competitive levers within the retail sector: 

• the recent enactment of the Commerce (Grocery Sector Covenants) Amendment Act 2022 (amending the Commerce Act), which outlaws land covenants and exclusive lease covenants in the retail grocery sector;
• the Commission’s recent market studies into the retail fuel market, the competition for residential building supplies, and the retail grocery market; and
• the Ministry of Business, Innovation and Employment’s recent public consultation into the effects of anti-competitive land covenants (which was initiated following the Commission recommending an economy-wide review of, among other things, the use of land covenants).

Key Takeaways

Landowners should be careful when considering the use of land covenants (whether registered in covenant instruments, leases or encumbrance instruments).  Whilst land covenants will still have their place (e.g. for maintaining aesthetic similarities within in a subdivision), landowners should now, more than ever, bear in mind the fact that they cannot be used for the purpose of substantially lessening competition. 

What will be considered as “substantially lessening competition” will of course depend on the particular circumstances of each case.  As a starting point, the following points have been noted by the Commission in March 2023 guidance as being more likely to cause a substantial effect on competition: 

• if the land covenant has a broader scope and/or a longer duration;
• if the land covenant has the effect of strengthening or reinforcing barriers to entry or expansion by competitors; and
• if the existing competition in the relevant market is already limited.

Seek Legal Advice

If you have any concerns over the potential anti-competitive effect of a land covenant, whether on your property or someone else’s, we would be pleased to advise. 

Lauren Semple appointed to the Environment Court bench (Christchurch)

It’s unusual for the departure of a senior colleague to be a positive event, but in this case, we’re delighted.

On 27 February Partner Lauren Semple’s appointment to the bench of the Environment Court was formally confirmed and she will don her robes from 24 March, sitting in Wellington.

Lauren has been an invaluable part of our team since we established our Christchurch office a decade ago where, as part of our successful Planning and Environment team, Lauren was a leading legal advisor involved with the Christchurch rebuild.  In that regard her work involved a number of key projects for the city, including development of the Central City Recovery Plan (“the Blueprint”), consenting the rebuild of both Christchurch and Burwood Hospitals, the temporary Stadium, the Justice and Emergency Precinct and delivering the Ōtākaro Avon River Corridor Regeneration Plan.  Recently, Lauren has been leading the consenting of the new Dunedin Hospital, advising the Crown on renewable energy generation options and utilising the Covid-Fast Track legislation to develop increased residential housing options throughout greater Christchurch. 

Since Lauren’s arrival in 2012, our Planning and Environment specialty has expanded north and grown rapidly. We now have a national team of nine, spread across all three offices and forming a crucial part of our project offering. The team will continue to be led by Partner Francelle Lupis who joined us in our Auckland office in 2016.

Lauren’s appointment is a well-deserved recognition of Lauren’s qualities, the projects she has enabled, and the regard with which she is held within the sector – as well the strength and standing of our Planning and Environment team.  Lauren leaves with the full support of the entire team at Greenwood Roche and the immense gratitude of the Partners for her work here.

Rachel Murdoch named Property Council Young Achiever of the Year (Christchurch)

Christchurch-based Senior Associate Rachel Murdoch was recently awarded the Property Council of New Zealand Young Achiever of the Year Award for 2022.

This award recognises her crucial role in a range of significant projects across the country, including the Ōtākaro Avon River Corridor Regeneration Plan, Te Kaha multi-use arena and the Christchurch Cathedral, the new Dunedin Hospital and a number of significant Covid-Fast Track developments. 

In addition to Planning and Environment, the Christchurch office has grown to include Real Estate and Construction practices, forming part of our national teams in those disciplines.

Nick Dunn appointed Partner (Wellington)

Wellington-based Principal Nick Dunn will join the partnership effective from 1 April 2023 (subject to Law Society requirements). Nick’s promotion was announced internally in September 2022, and we are pleased to now share the news more widely.

Nick joined Greenwood Roche in 2006 and re-joined us in 2013, after a brief stint overseas in Seoul, and is admired and respected in equal measure by staff and clients alike.

He has earned a reputation as a trouble-shooter and deal facilitator with a focus on public sector clients, but has also developed a strong market presence in the renewable energy sector. His main focus in recent years has been large-scale housing development projects.

Nick’s appointment to Partner is the latest in a long line of internal promotions, and highlights not only the continuity and relationship-based service we offer our clients, but also the strong supportive culture within our firm. Nick will be a great addition to our Real Estate team, which extends to 11 Partners nationally. 

His new role will strengthen our Wellington team, which will have nine Partners, and means we are better placed than ever to service our diverse range of clients, while also continuing to ensure our unique culture thrives.

New Year, stunning new offices (Auckland)

Finally, to support the continued growth and development of the Auckland team.  We very recently moved into the stunning Hayman Kronfeld Building in Britomart - a heritage refurbishment designed by Peddlethorp Architects.

It has been almost 10 years since Greenwood Roche first opened our Auckland office and the team jumped at the chance to relocate to this exciting new space within the latest Cooper & Co development.  Originally two warehouses, the heritage buildings have undergone a significant renovation to become an integrated 5-Green Star office.

For us, the unique space represents how Greenwood Roche continues to stand out from the pack, doing things a little differently and creating a space that can be the hub of our culture despite the plethora of flexible working options available.  The larger premises sees the team switch to open-plan working within pods, consistent with our other hubs. It also includes much greater meeting room capacity and features a variety of interesting and bespoke spaces for staff and clients to enjoy alongside our own roof terrace.

We look forward to hosting clients as soon as the final stages of the new interior are ready.

Outlook for 2023

While obvious economic headwinds and political uncertainty seem likely to make 2023 an interesting time to be in the real estate and projects business, we believe that there are still good untapped opportunities and projects there for those who are well connected and innovative - as well as in emerging sectors.

Given that backdrop, we are determined to continue to operate as a genuine participant in our sectors and to continue to innovate to help our clients make the most of opportunities that come their way.

For us that means continuing to focus on identifying and generating opportunities for our clients, not just waiting for the phone to ring, and thinking laterally to help position clients for the challenges of the year ahead.  

We will also continue to leverage our large senior team and commercial focus to facilitate transactions and convert opportunities quickly for clients, given the wider uncertainty in the market. 

This year will also see us continue to invest behind the scenes in broader outcomes initiatives. Clients will hear more from us about our exciting activity in this area as we seek to increase our work and expand our impact in this space.

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Malcolm, a pioneering property developer, has created a long list of high-profile developments including the soon-to-be completed NZ Campus of Innovation and Sport in Heretaunga – one of the most advanced training and research facilities in the world. Malcolm, the managing director of Gillies Group, has also created residential developments including Riverstone Terraces, Wallaceville Estate and Plimmerton Farm, and industrial and commercial precincts such as the South Pacific Industrial Park. 

The judging panel praised Malcolm for driving change in both residential and leisure property sectors in a region that is not only his work base but also where he calls home. They felt Malcolm had created a focal point and increased the desirability of Upper Hutt through his vision and work. That he achieved this and was well-regarded in the industry and well-liked by his team made him a stand-out leader and a fitting recipient of the Greenwood Roche Supreme Excellence award.

We would like to extend our congratulations to all other award recipients and nominees from the evening.

Thank you to the team at Property Council New Zealand for organising the event and celebrating industry success.

Greenwood Roche looks forward to continuing our long association with the Awards in 2023.