NEW ZEALAND GAZETTE, No. 173

16 DECEMBER 2010

Regulation 28(i), then Regulation 28(i) should be given greater importance.

11. The "mitigating" factor (Regulation 28(j)) is intended to provide investors with an opportunity to show how they may allow for New Zealanders to oversee, or participate in, the overseas investment and any relevant overseas person. While investors are not required to put in place such measures, the decision-maker will take such measures into account in determining whether the "mitigating" factor is met.

12. For the avoidance of doubt, the above paragraphs do not imply or make a statement about the relevance of the other section 17(2) factors (or parts of them) in relation to a specific overseas investment in sensitive land.

Conditions of Consent – Monitoring and Enforcement

13. When imposing conditions of consent on an overseas investment, the regulator should ensure that the condition is necessary and achieves the intended result in the least onerous way including, where possible, at the least cost to the investor.

14. Where a grant of consent is made subject to conditions of consent there may be circumstances where compliance with the original condition is no longer necessary. In such circumstances, the condition should be varied or revoked as appropriate in accordance with section 27 of the Act.

15. In deciding whether a condition of consent should be varied or revoked, the regulator should give consideration to any realised benefits as well as the extent to which compliance with a particular condition may be out of the consent-holder’s control or is a result of the consent-holder varying his, her or its plans.

16. The regulator should monitor compliance with conditions of consent until the benefits have been realised or the conditions have been revoked as appropriate in accordance with section 27 of the Act, whichever is the earlier. In general, monitoring should not extend for a period of more than five years unless the benefits are expected to begin accruing after five years in which case, in general, monitoring should be appropriate to the time span during which benefits accrue.

Criteria for Including Reserves, Public Parks or Other Sensitive Areas on the List Kept by the Regulator

17. Under section 37(1) of the Act you, as regulator, must compile and keep a list of reserves, public parks and other areas, for which the adjoining land is sensitive under Table 2, Part 1, Schedule 1 (the list). The Government considers that the list may include reserves, parks and other areas of land (specifically or by class) that are not listed in Table 2.

18. The principal factor in determining whether other reserves and public parks should be included on the list should be the purpose for which the land is held; specifically, land should only be added to the list if it is held for a purpose relating to protecting or providing public access to natural and physical resources or historic heritage. In all cases, reserves, public parks and other areas of land under 0.4 hectares should not be included on the list.

19. As a guideline, and without limiting your discretion as regulator, areas of land that are likely to meet the criteria for inclusion on the list include:

• National Parks listed in the National Parks Act 1980;
• Wildlife Sanctuaries, Wildlife Refuges and Wildlife Management Reserves created under the Wildlife Act 1953;
• Government purpose reserves that are classified as a Government purpose reserve for: wildlife management; other specified wildlife purposes; or for similar purposes as scenic, nature and historic reserves under the Reserves Act 1977; and
• Marine Reserves under the Marine Reserves Act 1971.

Intention to Reside in New Zealand Indefinitely

20. 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. This is because the ownership of that land will assist new migrants to settle in New Zealand and 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 timeframe. 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
    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.

Acquisition of 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 as "the foreshore, seabed, riverbed, or lakebed".

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

General Policy Approach to Acquisition of Special Land

25. The Government’s general policy approach to the acquisition of special land is that the special land should only be acquired if it is in the public interest for the Crown to own the special land.

26. Relevant matters for determining whether it is in the public interest for the Crown to acquire special land are:

    a. whether there is a recognised attitude of New Zealanders (or a group of New Zealanders) to the special land. This attitude 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. whether the overall benefit of Crown ownership exceeds the likely costs of acquisition and the ongoing liabilities likely to be incurred in maintaining and managing the special land;
    c. the interrelationship with the surrounding area (for example, whether the special land adjoins riverbed, lakebed, foreshore or seabed that is already in Crown ownership).