Offer Back of Special Land
On this page:
- Introduction
- Legislation
- Consent criteria
- Determining special land
- Offer back procedure
- Delegation & fees
- Further information
- Disclaimer
There are no new updates to this guide.
Introduction
In some situations qualifying special land must be offered back to the Crown before consent can be granted to an overseas investment in sensitive land. Special land consists of qualifying foreshore, seabed, riverbed or lakebed, as defined in the legislation.
This requirement only applies to land investments where the applicant must demonstrate how the transaction will, or is likely to, benefit New Zealand. The procedure for the offer back of special land is detailed below.
Legislation
Section 16 sets out certain criteria for consent for overseas investments in sensitive land. Under section 16(1)(e)(ii), it must be shown in certain circumstances that the overseas investment “will or is likely to benefit New Zealand”.
The factors used to assess whether there is such a benefit are then set out in section 17. The special land factor is set out in section 17(2)(f).
It is important to note that there is no requirement to offer back special land where section 16(1)(e)(i) applies, namely where the relevant “overseas person” is:
- an individual intending to reside in New Zealand indefinitely, or
- where all the individuals with control of a “non-individual” overseas person are New Zealand citizens, ordinary New Zealand residents or are intending to reside in New Zealand indefinitely
See Lifestyle Properties and New Migrants, Determine If a Person is Ordinarily Resident in New Zealand and/or Benefit to New Zealand.
Regulations 13 to 27 establish the offer back procedure.
Consent criteria
The OIO requires that either:
- any special land is offered back to the Crown in accordance with the procedure set out in Regulations 13-27 (see below), or
- the applicant provides a statement that the relevant land does not include any special land.
Determining special land
Qualifying foreshore, seabed, riverbed or lakebed, as defined in section 6, is described as “special land” in Regulation 12 of the Overseas Investment Regulations 2005.
The two most common special land scenarios are where either:
- there is a qualifying riverbed fully enclosed within a Land Transfer Act title, or
- a Land Transfer Act title has an external river boundary to which the ad medium filum aquae centreline presumption applies
- a Land Transfer Act title has a qualifying foreshore boundary (as defined in section 6). In practice, determining the cadastral boundaries defined by mean high water springs may require professional surveying expertise.
In cases of doubt, the OIO recommends that you engage a lawyer with significant experience in overseas investment applications, a licensed cadastral surveyor and/or a LINZ-accredited Crown property service provider.
Offer back procedure
Please forward all special land documentation to the OIO in the first instance. The OIO will forward this documentation to the relevant Ministers where required.
Please refer to the template for special land - agreement in principle and the letter template for the offer of special land.
Note that special land generally increases the timeframe for application assessment. It may be possible for consent to be granted for an application to acquire sensitive land before the offer back process is completed. In such cases, the consent will be conditional upon the new owner agreeing to be bound by any subsequent special land agreement. Contact the OIO for more information.
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Written notice to the Crown
The owner must give written notice under regulation 13 that a proposed overseas investment includes special land. Regulation 14 sets out the “content of notice” which includes a statement that the owner intends to offer the special land to the Crown.
If the land is to be offered to the Crown for nil consideration, please amend the regulation 14 notice to state that the special land does not need to be surveyed before its market value can be determined and before it can be acquired by the Crown - see regulation 14(g)(i).
A set of templates to facilitate an offer of special land to the Crown for no consideration will be published shortly.
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Crown right of waiver
The Crown may waive its right to acquire the special land under regulation 15 at any time after a notice has been given and before a final agreement is reached.
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Valuation procedure if Crown requires
If the Crown chooses not to waive its right to acquire the special land, a valuation procedure is set out in regulations 16 to 21. Valuation will not be required if the special land is to be offered for nil consideration.
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Negotiation in good faith
Under regulation 22, the owner and Crown must negotiate in good faith in order to conclude an agreement in principle as to the terms and conditions of the acquisition. If this is successful, the owner must then offer the special land on the terms and conditions stated in that agreement.
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The Crown decides
The Crown must decide whether to accept the offer under regulation 24. If the offer is accepted, the special land will be formally conveyed to the Crown. The method of conveyance will be determined by the type of special land involved.
Delegation and fees
The Minister of Finance and the Minister for Land Information decide whether to accept special land offered back to the Crown. All documentation should be forwarded to the OIO in the first instance.
For applications involving special land, the relevant Minister fees apply. See the current schedule of fees.
Further information
The Current Ministerial Directive Letter (pdf 2MB) provides additional commentary on special land.
If you require further information regarding special land contact the OIO.
Disclaimer
This website provides general information only. The OIO and LINZ do not assume any responsibility for giving legal or other professional advice and disclaim any liability arising from the use of the information. If you require legal or other expert advice you should seek assistance from a professional adviser.
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