15 NOVEMBER 2007

NEW ZEALAND GAZETTE, No. 123

investments unless compliance should reasonably be
excused. In deciding whether compliance with a specific
condition should be excused, consideration should be
given to any realised benefits and the extent to which
compliance with a particular condition may be out of the
applicant’s control.

14. In exercising its powers under subpart 4 (Monitoring)
    of the Act, the regulator should monitor compliance
    with the conditions of consent for at least five years or
    until in the opinion of the regulator the benefits have
    been realised or compliance has reasonably been
    excused, whichever is the earlier. Within the monitoring
    period, the regulator may decide how frequently it
    should monitor (for example once, biannually, annually
    or biennially) based upon a risk assessment and
    consideration of suitable completion benchmarks.

15. The exercise of powers under subpart 5 (Enforcement)
    of the Act is at the regulator’s discretion.

Parks, Reserves and Other Sensitive Land

16. Under section 37 of the Act the regulator must compile
    and keep a list (the list) of reserves, public parks, and
    other areas described in the section. Such land has the
    effect of making land sensitive. It is expected that you,
    as the regulator, would ensure that this list is kept up to
    date by amending its content as required.

17. In determining what to include on the list, consideration
    should be given to designations under any relevant
    gazette notice, regional or district plans, or proposed
    district plans. Reserves of a less sensitive nature, most of
    which are likely to be local purpose or government
    purpose reserves, such as drainage or hospital reserves,
    would not normally need to be included.

18. National Parks under the National Parks Act 1980,
    wildlife management reserves, foreshore reserves, and
    lake or riverfront reserves must be included on the list.

19. The area screening threshold applied to any land listed as
    sensitive under section 37 should be 0.4 hectares in order
    to be consistent with the area thresholds that apply to
    similar types of land in Table 2, Part 1 of Schedule I of
    the Act. If the land on the list adjoins other land on this
    list, or land in Table 2 that is held for similar purposes,
    the land areas can be aggregated for calculating the area
    threshold.

Intention to Reside in New Zealand Indefinitely

20. Overseas investment policy must be consistent with and
    reinforce New Zealand’s immigration policy, which
    aims to attract skilled migrants. Under section 16(1)(e)(i)
    of the Act, overseas persons intending to reside in
    New Zealand indefinitely are not required to show
    that their investment is likely to benefit New Zealand
    because that ownership of land will assist new migrants
    to settle in New Zealand and that the benefits of the
    proposed migration will be considered under immigration
    legislation.

21. An intention to reside in New Zealand indefinitely must
    involve a definite plan and accompanying action within a
    reasonable time frame. In determining whether a person
    is intending to reside indefinitely the regulator must give
    consideration to any active steps that have been taken by
    the investor to actually reside in New Zealand. In order
    for the section 16(1)(e)(i) criterion to apply, the applicant
    must:

a. have applied to Immigration New Zealand for a visa
or permit under any of Immigration New Zealand’s
residence policies; and

b. provide the regulator with evidence that the
application for the visa or permit is likely to be
successful; and

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c. show other actions consistent with an intent to reside
in New Zealand in the near future.

22. The regulator may impose a time limit within
    which the applicant must become permanently resident
    in New Zealand. As a general rule the Government
    would expect that this would require that the overseas
    person must be resident in New Zealand within five
    years of the date of application.

Part Two: Special Land

23. Section 17(2)(f) of the Act requires that Ministers must
    consider whether any special land has been offered to the
    Crown in accordance with the Regulations. Special land
    is defined under Regulation 12 of the Overseas Investment
    Regulations 2005 (“the Regulations”) as being “the
    foreshore, seabed, riverbed, or lakebed”.

Government’s General Policy Approach to Special Land

24. The Crown may acquire special land to either recognise
    the attitude of New Zealanders to that land or class of
    land or to protect or preserve that land for future
    generations. Thus in recommending to purchase special
    land advice must consider the Government’s general
    policy approach, which is to:

(a) Recognise an attitude of New Zealanders to a
piece or type of special land

Where the Crown chooses to acquire special land
in order to recognise the attitude of New Zealanders
(or a group of New Zealanders), these attitudes
could relate to a specific piece of special land or
may relate to a more general class of special land,
eg foreshore or seabed. The regulator is not expected
to provide advice beyond recognising that an attitude
may exist in New Zealand to that land.

(b) Protect, recognise or preserve some value that
can best be protected by Crown ownership

In making recommendations to Ministers as to
whether or not to acquire special land in order
to recognise or preserve some value that can best
be protected by Crown ownership, the regulator is
required to consider all relevant matters set out
under the heading “Matters for Consideration”,
taking into account the particular circumstances of
the special land.

25. There is a presumption that special land will be acquired
    by the Crown where it is offered to the Crown for nil
    consideration, and the costs and liabilities associated
    with the acquisition do not outweigh the benefits, and
    there is no negative or only a negligible impact on the
    overseas investment transaction.

Acquisition and Waiver

26. Special land includes land that forms part of the owner’s
    registered freehold title to the relevant land or that
    is held under common law (in relation to riverbed or
    lakebed) by the owner under the ad medium filum aquae
    rule.

27. In circumstances where a river is navigable, the Crown
    will already own the riverbed. Due to the problems of
    determining the navigability of a river the regulator is
    not expected to consider whether a river is navigable
    within its advice to Ministers. For this reason, the
    regulator should make clear on its website, in advice,
    and any supporting documentation that the decision to
    acquire or not acquire special land for whatever purpose
    is not a statement inferred or implied about whether a
    river is or is not navigable, or whether the Crown does or
    does not own the special land in question. Further, any
    decision will be based purely on consideration of the
    merits of only the piece of land in question and so any
    decision will not imply the status of any other property.