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New Zealand’s Specialist Project Lawyers

There is a marked difference

in the way Greenwood Roche operates. From the outset we have focused on clearly defined specialist areas, retaining highly respected legal experts in each field. We then take that further; ensuring clients have direct and regular access to the most senior partners and lawyers, in a cost efficient manner.

Close contact with experts and clear cost advantages

We advise on a range of significant public and private sector projects. To ensure our specialists are always where they’re needed, we operate as one office with hubs in Auckland, Wellington & Christchurch.

Recent Projects

Projects

New Dunedin Hospital – Stage 3 Inpatient Building – Fast Track Consent Granted

On 24 November 2023 resource consent was granted under the COVID-19 Recovery (Fast-track Consenting)...

New Dunedin Hospital – Stage 3 Inpatient Building – Fast Track Consent Granted

Recent Projects

New Dunedin Hospital – Stage 3 Inpatient Building – Fast Track Consent Granted

New Dunedin Hospital – Stage 3 Inpatient Building – Fast Track Consent Granted

On 24 November 2023 resource consent was granted under the COVID-19 Recovery (Fast-track Consenting) Act 2020 for the above-ground construction works and subsequent operation of the new Inpatient building at Dunedin Hospital.  


Resource consent was granted for the stage 1 foundation works on 23 December 2021 and for the stage 2 Outpatient building on 17 August 2022. The granting of this subsequent consent will enable the establishment of the new Inpatient building, the largest of the clinical buildings comprising the new Dunedin Hospital.

As the primary tertiary healthcare facility for the Southern region, the new Inpatient building will house a range of consultation and treatment spaces, including an intensive care unit, a dedicated primary birthing unit and an expanded emergency department.  In addition to the dedicated clinical facilities, the Inpatient building site will also accommodate generous areas of landscaping and public realm extending primarily along the Cumberland Street frontage of the site. Works on the Inpatient building are anticipated to commence in Q1 2024.

A team from Greenwood Roche, led by Julian Smith, Monique Thomas and Rachel Murdoch, are advising Te Whatu Ora on all consenting and property matters relating to the New Dunedin Hospital.  


Specialist expertise

Key lawyers involved

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Faringdon Oval – Fast-track Consent Granted

On 26 July 2023 an expert consenting panel granted Hughes Developments Limited’s Faringdon Oval...

Faringdon Oval – Fast-track Consent Granted

Recent Projects

Faringdon Oval – Fast-track Consent Granted

Faringdon Oval – Fast-track Consent Granted

On 26 July 2023 an expert consenting panel granted Hughes Developments Limited’s Faringdon Oval application under the COVID-19 Recovery (Fast-track Consenting) Act 2020.


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.


Specialist expertise

Key lawyers involved

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New Dunedin Hospital – Stage 1 Enabling Works – Variation Granted

On 28 July 2023 the Dunedin City Council granted a variation to the conditions of the previously...

New Dunedin Hospital – Stage 1 Enabling Works – Variation Granted

Recent Projects

New Dunedin Hospital – Stage 1 Enabling Works – Variation Granted

New Dunedin Hospital – Stage 1 Enabling Works – Variation Granted

On 28 July 2023 the Dunedin City Council granted a variation to the conditions of the previously consented enabling works for the New Dunedin Hospital. 


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. 


Specialist expertise

Key lawyers involved

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PC 59 (Private) – Albany 10 Precinct

Greenwood Roche recently acted for Bei Group Limited on Plan Change 59: Albany 10 Precinct to the...

Recent Projects

PC 59 (Private) – Albany 10 Precinct

PC 59 (Private) – Albany 10 Precinct

Greenwood Roche recently acted for Bei Group Limited on Plan Change 59: Albany 10 Precinct to the Auckland Unitary Plan (Operative in Part), securing appropriate zoning and plan provisions to develop a comprehensive residential development, which will enable 1,800 dwellings in buildings up to ten storeys on part of the old Massey Campus, near the Albany town centre.  


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. 


Specialist expertise

Key lawyers involved

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Consent granted for 76-lot residential subdivision in Kamo, Northland

Greenwood Roche has advised Hurupaki Holdings Limited through a Council hearing process, and an...

Recent Projects

Consent granted for 76-lot residential subdivision in Kamo, Northland

Consent granted for 76-lot residential subdivision in Kamo, Northland

Greenwood Roche has advised Hurupaki Holdings Limited through a Council hearing process, and an Environment Court appeal, to successfully obtain resource consent for a non-complying subdivision creating 76 residential allotments (including associated infrastructure and earthworks), a local café, a recreational reserve and playground, located on the fringe of Kamo in Northland.  


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.


Specialist expertise

Key lawyers involved

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Development Agreement and Lease for over 14,000 sqm of space at a new Beca House at Wynyard Quarter

As a long-standing legal provider for Beca, Greenwood Roche recently led negotiations between Beca...

Recent Projects


Development Agreement and Lease for over 14,000 sqm of space at a new Beca House at Wynyard Quarter

As a long-standing legal provider for Beca, Greenwood Roche recently led negotiations between Beca and Precinct Properties for the relocation of Beca House (Beca’s Auckland Office and Global Headquarters) to a new 14,000m² office premises as the anchor tenant in Precinct Properties’ latest development at 126 Halsey Street, Wynyard Quarter. 


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.  


Specialist expertise

Key lawyers involved

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Plan Change 5 – Re-zoning of former Paeroa Racecourse

Greenwood Roche has successfully assisted WFT Finance & Investment Company Limited, directed by Mr...

Plan Change 5 – Re-zoning of former Paeroa Racecourse

Recent Projects

Plan Change 5 – Re-zoning of former Paeroa Racecourse

Plan Change 5 – Re-zoning of former Paeroa Racecourse

Greenwood Roche has successfully assisted WFT Finance & Investment Company Limited, directed by Mr Wayne Wright and Mrs Chloe Wright, to secure a private plan change to the Hauraki District Plan to rezone the 33 hectare former Paeroa Racecourse site and approve a Structure Plan to facilitate a mix of residential, commercial and open space development at the site.   


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. 


Specialist expertise

Key lawyers involved

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New Dunedin Hospital – Stage 2 Outpatient Building – Fast Track Consent Granted

On 17 August 2022 the Minster of Health was granted resource consent under the COVID-19 Recovery...

Recent Projects


New Dunedin Hospital – Stage 2 Outpatient Building – Fast Track Consent Granted

On 17 August 2022 the Minster of Health was granted resource consent under the COVID-19 Recovery (Fast-track Consenting) Act 2020 for the above-ground construction works and subsequent operation of the new Outpatient building at Dunedin Hospital.  


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.  


Specialist expertise

Key lawyers involved

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News & Insights

Insights

Retentions Regime 2023 changes

The Construction Contracts (Retention Money) Amendment Act 2023 came into force on 5 October...

News & Insights


Retentions Regime 2023 changes

The Construction Contracts (Retention Money) Amendment Act 2023 came into force on 5 October 2023, impacting the way retentions must be held.  This FAQ answers the main queries we have been receiving from clients about complying with the new regime.  Please click the link below for information on the changes.



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Important changes for Incorporated Societies

What is an Incorporated Society? An incorporated society is a membership-based not-for-profit...

Important changes for Incorporated Societies

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Important changes for Incorporated Societies

Important changes for Incorporated Societies

What is an Incorporated Society?

An incorporated society is a membership-based not-for-profit legal entity that was, up until 5 October 2023, required to be registered pursuant to the Incorporated Societies Act 1908 (Existing Act).

There are over 24,000 incorporated societies operating in Aotearoa New Zealand, many of which are sports clubs and associations.


New Act and Regulations

The Incorporated Societies Act 2022 (New Act) and its associated regulations (New Regulations) came into force on 5 October 2023.  The New Act:

  • provides for the repeal of the Existing Act; and
  • replaces the Existing Act with a more modern legal, governance and accountability framework for incorporated societies to operate in New Zealand.

From 5 October 2023, all existing incorporated societies are required to re-register under the New Act, and they have until 5 April 2026 to do so (this is referred to as the “Transitional Period” under the new Act).  The provisions of the New Act will not apply to an incorporated society until it has re-registered under the New Act (the provisions of the Existing Act will continue to apply to that society in the meantime).   Any society which fails to re-register by 5 April 2026 will cease to exist after that date. 

Any new society wanting to incorporate as an incorporated society must now register under the New Act. 

Key changes

The following is a summary of the key changes introduced by the New Act:

  • Members / consent. An incorporated society must, as a pre-requisite to being registered, have no fewer than 10 members (under the Existing Act, the requirement is for at least 15 members).  Each member must consent to become a member of the society.
  • Committee. An incorporated society must have a governing body (or committee) made up of no fewer than 3 members (called “Officers”).  Importantly, a majority of Officers on the committee must be members.   Under the existing Act there is no requirement for a committee.  The Act also sets out certain qualifying criteria for Officers.
  • Constitution. An incorporated society must have a constitution which complies with certain requirements of the New Act, including a dispute resolution procedure to govern any internal disputes in a way that is consistent with natural justice.  The constitution replaces the “rules” under the Existing Act.  It is incumbent upon the society to ensure that its constitution is compliant with the New Act - the Registrar of Incorporated Societies does not review these, like they did the rules under the Existing Act.
  • Officers duties.  Officers (which include the committee members, general manager/CEO, treasurers etc.) now have certain broadly expressed duties to the society which have been modelled on the directors’ duties in the Companies Act 1993.  These include to:

             o       act in good faith and the best interests of the society;
             o       exercise powers for proper purposes only;
             o       comply with the New Act and the society’s constitution;
             o       exercise reasonable care and diligence;
             o       not create a substantial risk of serious loss to creditors; and
             o       not incur an obligation the officer does not reasonably believe the society can perform.

     Officers are directly and personally liable to the incorporated society, whose members may apply
     to the Court to enforce them.  The New Act allows societies to keep and maintain insurance for
     Officers in respect of such liability.

  • Contact person.  An incorporated society must have a dedicated contact person whose details are provided to the Registrar of Incorporated Societies (and will otherwise not be publicly available).  The contact person need not be a member – but could be an accountant, lawyer or other business advisor.
  • Financial and other reporting.  Incorporated societies must now use XRB accounting standards in the preparation of financial statements (this requirement does not apply to “small societies” – being societies which are not registered charities and have total operating payments of less than $50,000 and total current assets of less than $50,000, for the last two financial years).  An incorporated society is required to file financial statements and annual returns within 6 months of its balance date in every year.
  • Language.  the documents and records of an incorporated society, such as the constitution, bylaws and financial records can be written in either English or te reo Maori.  Similarly, the name of the society must have a name that ends with either or both of “Incorporated”, “Inc” or “Manatopu”.
  • Amalgamation. The New Act prescribes a process for amalgamation of two or more societies (such process being a similar to the process for amalgamation of companies under the Companies Act 1993).
  • Criminal acts.  The New Act makes it a criminal offence to:

             o       make a false statement;
             o       fraudulently use or destroy property;
             o       falsify documents;
             o       defraud creditors;
             o       dishonestly operate under a name for which the word “Incorporated”, “Inc” or
                     “Manatopu” is the last word, when that organisation represented has not been
                      incorporated under the New Act or any other act allowing for the use of those words;
                      and
             o       breach a banning order (which is a court order disqualifying a person from being
                      an Officer of a society due to criminal or reckless conduct or incompetence etc.).

Comments

The changes introduced by the New Act are, in the main, likely to improve the way that sports clubs, associations and other not-for-profit organisations are governed in Aotearoa New Zealand. 

The requirements of the New Act may not, for some of the larger and more sophisticated organisations, have a significant impact on governance practices.  For smaller organisations (or those largely run by volunteers), the changes may be considerable and, in some cases, onerous: some may struggle to recruit and retain Officers particularly if there is little to no funding allowance for liability insurance.  Others may struggle to meet the cost of compliance.

Societies should use the Transitional Period to ensure that they are in a position to be compliant with the New Act at the time of re-registration.  This may include:

  • reviewing their existing rules in order to assess what changes are needed in order to have a compliant constitution under the New Act;
  • reviewing existing member application processes to identify the changes needed to ensure the consent of every new member is obtained (and in respect of all existing members, collecting their consent);
  • formation of a committee and/or revising the composition of an existing committee in order to ensure the committee has a majority of members (as opposed to independent Officers);
  • considering whether the existing/new Officers will meet the officer qualifying criteria under the New Act;
  • considering who the Registrar’s contact person will be; and
  • identifying which tier of the XRB accounting standards applies to the particular society and considering the potential outsourcing of certain tasks to a professional consultant, such as preparation of financial statements.

Societies should also consider the extent to which they wish to keep and maintain insurance for the liability of their Officers – it may otherwise be practically difficult to attract Officers to those roles, given the additional liability created by the new duties.

Please contact Kelly Johnson (or your usual contact at Greenwood Roche) if you have any queries in relation to the New Act and how it may affect your incorporated society.


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Living Pā Project

Te Herenga Waka—Victoria University of Wellington has pulled together principles of te ao...

Living Pā Project

News & Insights


Living Pā Project

Te Herenga Waka—Victoria University of Wellington has pulled together principles of te ao Māori and the Living Building Challenge (LBC) in an exciting marae precinct redevelopment on Kelburn Parade. Greenwood Roche are proud to have been involved in the pre-construction phase of this transformative construction project. 


With construction well underway, 42 to 50 Kelburn Parade will soon be home to ‘The Living Pā’, a revolutionary marae precinct redevelopment and the latest addition to the University’s Kelburn campus.  The 3000 sqm project will serve as an ‘incubator for innovation’ and a sustainability beacon that redefines our understanding of, and interaction with, the built environment.

The project is one of few striving for full ‘Living’ building certification in the Southern Hemisphere, the first mass timber building to do so, and the first amongst an urban environment.  The LBC framework requires the pā to be net positive in carbon, water, energy and waste and demonstrably giving back to the local community and surrounding ecology.

The LBC requirements reflect te ao Māori principles such as kaitiakitanga (guardianship), whanaungatanga (kinship) and whakapapa (lineage).  With Papaptūānuku under pressure, these principles have and will continue to have a profound influence on the project as it seeks the gold standard in sustainable building.  The Living Pā intends to create a positive impact on the natural and human systems that interact with it, continuing long after construction is completed.  Once completed, the pā aims to set the benchmark for future regenerative building projects.

Greenwood Roche assisted throughout the procurement process for this project, including to provide strategic procurement advice, draft and negotiate the early contractor involvement agreement and construction contract, and finalise the construction documents.


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Climate Change Challenges: Relocating from at-risk Areas

On Tuesday 28 November, Greenwood Roche hosted our first climate change focussed panel event:...

Climate Change Challenges: Relocating from at-risk Areas

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Climate Change Challenges: Relocating from at-risk Areas

On Tuesday 28 November, Greenwood Roche hosted our first climate change focussed panel event: ‘Relocating from At-Risk Areas’, which centred around planned relocation.  We are grateful to the panellists for taking time out to bring their expertise to the event and to all audience members for their thoughts and questions.

Our article gives an insight into some of the important conversations that were covered on the night.  Keep an eye out for more events in the future!


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).


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Property Council New Zealand Awards 2023

Over 360 guests, including a large contingent from Greenwood Roche, enjoyed the evening-long...

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Property Council New Zealand Awards 2023

Over 360 guests, including a large contingent from Greenwood Roche, enjoyed the evening-long celebration at Tākina at the recent Property Council of New Zealand Awards evening held in Wellington.

 


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.

Lined in 1Linked in 2Linked in 3


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New commercial forestry standards introduced

The national environmental standards for commercial forestry (NES-CF) came into force on 3 November...

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New commercial forestry standards introduced

The national environmental standards for commercial forestry (NES-CF) came into force on 3 November 2023, amending the current national environmental standards for plantation forestry (NES-PF).


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. 


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Greenwood Roche Panel Event - Connecting Construction: Project Challenges and Opportunities for 2023

Greenwood Roche is thrilled to have welcomed key property and construction industry participants to...

Greenwood Roche Panel Event - Connecting Construction: Project Challenges and Opportunities for 2023

News & Insights

Greenwood Roche Panel Event - Connecting Construction: Project Challenges and Opportunities for 2023

Greenwood Roche Panel Event - Connecting Construction: Project Challenges and Opportunities for 2023

Greenwood Roche is thrilled to have welcomed key property and construction industry participants to our new Auckland home in the Hayman Kronfeld Building for our inaugural Connecting Construction Panel event: Project Challenges and Opportunities for 2023, moderated by construction partner, Amy Rutherford.  The event took place on the 26th of April and was a great success, and we're grateful to all the panellists and audience members who took the time to share their insights and expertise on the evening.


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.


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Balancing Competition and Corporate Strategy in the Realm of Restrictive Land Covenants: Commerce Commission v NGB Properties Limited [2023] NZHC 2005

The High Court ruling in Commerce Commission v NGB Properties Limited [2023] NZHC 2005 has brought...

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Balancing Competition and Corporate Strategy in the Realm of Restrictive Land Covenants: Commerce Commission v NGB Properties Limited [2023] NZHC 2005

The High Court ruling in Commerce Commission v NGB Properties Limited [2023] NZHC 2005 has brought land covenants to the forefront of New Zealand’s commercial landscape.  This landmark case has significant implications for what has, up until now, been a reasonably common use of land covenants, and sheds light on the interplay between competition law and property rights.


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. 


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