Back to Overseas Investment Act
The Overseas Investment Office and public access
Contents
- Introduction
- Statutory provisions
- Herenga ā Nuku's process
- Herenga ā Nuku's criteria
- Legal mechanisms for walking access
- Landowner liability
- Prior consultation with Herenga ā Nuku
This is a guide to the statutory provisions, processes and criteria used by the Herenga ā Nuku when addressing walking access benefits that intended overseas purchasers of sensitive land may offer.
Overseas Investment Act applications: Frequently Asked Questions
This factsheet reviews the access provisions in the Overseas Investment Act and explains Herenga ā Nuku’s role in Overseas Investment Act cases.
We have also produced a version in Simplified Chinese.
年海外投资法 Overseas Investment Act applications FAQ: Simplified Chinese
Introduction
This is a guide to the statutory provisions, processes and criteria Herenga ā Nuku uses when addressing walking access benefits that intended overseas purchasers of sensitive land may offer. The Overseas Investment Office (OIO) and responsible ministers may consider these benefits when assessing whether to approve applications to purchase sensitive land under the Overseas Investment Act 2005 (OIA).
Herenga ā Nuku has no statutory role under the Overseas Investment Act in advising on or determining these walking access benefits. Herenga ā Nuku has, however, a role under the Walking Access Act 2008 to lead and support the establishment and improvement of walking access. The OIO has recognised this role and seeks Herenga ā Nuku’s advice on possible walking access benefits relating to OIA applications. However, decisions on OIA applications are a matter for the OIO and the responsible ministers.
Statutory provisions
The most relevant provisions of the Walking Access Act are:
9 Objective of Commission
The objective of the Commission is to lead and support the negotiation, establishment, maintenance, and improvement of walking access and types of access that may be associated with walking access, such as access with firearms, dogs, bicycles, or motor vehicles.
10 Functions of the Commission
(1) In meeting its objective under section 9, the Commission has the following functions:
(a) providing national leadership on walking access by—
(i) preparing and administering a national strategy; and
(ii) co-ordinating walking access among relevant stakeholders and central and local government organisations, including Sport and Recreation New Zealand.
Herenga ā Nuku is also responsible for establishing and administering walkways, a particular form of walking access recognised in the statute.
The OIA contains several criteria that the OIO and Ministers must consider when assessing an application from an overseas person to acquire sensitive land. These include benefits that the investment may confer on New Zealanders. From a walking access perspective, the most relevant provisions are in the following paragraphs of section 16:
(ii) the overseas investment will, or is likely to, benefit New Zealand (or any part of it or a group of New Zealanders), as determined by the relevant Ministers under section 17:
(iii) if the relevant land includes non-urban land that, in the area (alone or with any associated land) exceeds 5 hectares, the relevant Ministers determine that that benefit will be, or is likely, substantial and identifiable.
The walking access benefit in section 17 is in the following paragraph:
(e) whether there are or will be adequate mechanisms for providing, protecting, or improving walking access over the relevant land or a relevant part of that land by the public or any section of the public.
Herenga ā Nuku’s process
Herenga ā Nuku becomes involved in the purchase of sensitive land by an overseas person either:
- When the OIO or ministers have made it a condition of the acquisition that the purchaser reaches an agreement with Herenga ā Nuku to implement a walking access condition. This may be in the form of a standardised walking access condition developed in consultation with Herenga ā Nuku; or
- When an intending purchaser approaches Herenga ā Nuku seeking its views on a possible walking access benefit. In this case, Herenga ā Nuku can consider the matter and provide its views which the intending purchaser may then include in their application.
In addressing walking access conditions of approved purchases, Herenga ā Nuku will, if relevant, consult with other parties with an interest in public access, such as the Department of Conservation, local authorities, Fish and Game New Zealand and recreational groups about the desirability of walking access on the land and any implementation issues.
When addressing an approach from intended purchasers, before the application is made to the OIO, Herenga ā Nuku will treat each request in confidence and will not approach other agencies for their views without the specific agreement of the intending purchaser.
Herenga ā Nuku's criteria
Herenga ā Nuku’s criteria in considering whether walking access will be beneficial in respect of a particular area of sensitive land that is subject to an application under the OIA is guided by the provisions in section 11 of the Walking Access Act 2008:
11 Consideration of priorities for walking access over private land
In considering its priorities for negotiating walking access over private land, the Commission must take into account the desirability of walking access—
(a) over land on the coast where there is not already walking access over the foreshore or the land adjoining the foreshore on its landward side:
(b) over land adjoining rivers or lakes where there is not already walking access over the land:
(c) to parts of the coast, rivers, or lakes to which there is not already walking access:
(d) being continuous over land adjoining the coast, rivers, or lakes (for example, by replacing walking access that has become obstructed by being submerged beneath a body of water):
(e) to conservation areas (within the meaning of section 2(1) of the Conservation Act 1987):
(f) to areas of scenic or recreational value:
(g) to sports fish (within the meaning of section 2(1) of the Conservation Act 1987) and game (within the meaning of section 2(1) of the Wildlife Act 1953).
In addition, Herenga ā Nuku will consider the practical implementation of any proposed walking access and who will bear the cost of implementation. This could include route marking, track formation, signage and ongoing maintenance and administration.
Legal mechanisms for walking access
If walking access is a public benefit offered by a proposed purchaser, an appropriate legal mechanism should secure it.
- A walkway established under the Walking Access Act 2008, usually requiring an easement over the land
- A public access easement other than one specified for a walkway
- An esplanade strip or access strip agreed upon between the landowner (purchaser) and the local territorial authority, and
- An open space covenant providing public access was agreed upon between the landowner (purchaser) and the Queen Elizabeth II National Trust.
OIO and Herenga ā Nuku usually favour walkways made under the Walking Access Act 2008 as the mechanism for creating walking access. They have a detailed statutory process for establishment, are specifically tailored for walking access and have an ongoing administrative arrangement. Herenga ā Nuku has developed a standardised form of easement for walkways that, amongst other things, clarifies provisions that apply to easements.
Public access easements (easements in gross) other than those made for walkway purposes under the Walking Access Act 2008 need to be individually tailored for their purpose. There may be some circumstances where such easements provide a satisfactory walking access solution.
Herenga ā Nuku favours esplanade strips for walking access alongside water margins (rivers, streams, borders of lakes or the coastline) where there is no existing public access such as road, marginal strip or esplanade reserve. This is because esplanade strips move with any change in the location of the water margin, such as may occur with erosion or accretion.
Open space covenants can provide walking access in addition to their environmental benefits. In some circumstances, it may be appropriate to provide walking access within the context of an open space covenant. This would be reinforced in the covenant conditions where walking access benefits were a condition of purchase.
In considering possible walking access conditions, Herenga ā Nuku will want to be clear about who will bear any costs relating to any necessary route marking, track formation, signage and maintenance and who will be responsible for the ongoing access administration. In the case of a walkway made under the Walking Access Act 2008, Herenga ā Nuku must appoint a controlling authority responsible for administering the walkway.
The controlling authority must be a public body such as the Department of Conservation or a local authority. Herenga ā Nuku itself does not normally take on this role.
Landowner liability
A concern that sometimes arises regarding walking access conditions is the possible liability of the landowner to users of the access. A potential injury that walkers might suffer is dealt with under the Accident Compensation Act 2001. Still, in addition, the Walking Access Act 2008 limits the possible liability of landowners as provided in section 66 of the Act:
66 (1) A landholder is not liable for any loss or damage suffered by a person using—
(a) walking access on the landholder’s land, in the case of private land; or
(b) a walkway on the landholder’s land, in the case of public land.
(2) The liability referred to in subsection (1)—
(a) means liability under—
(i) the Occupiers’ Liability Act 1962; or
(ii) any common law rule referred to in section 3 of that Act; and
(b) includes liability for both compensatory and exemplary damages.
(3) However, subsection (1) does not apply to any loss or damage caused by the landholder’s deliberate act or omission.
Prior consultation with Herenga ā Nuku
Applicants for approval to acquire sensitive land may wish to consider approaching Herenga ā Nuku early to seek its view about the desirability of walking access over the land under consideration. They could do this before or in parallel with a formal application to the OIO. The advantage of doing so is to provide greater certainty for the applicant and avoid a detailed process after approval has been given centred on the standard default walking access condition that may have already been inserted as a condition of the approval.
The extent to which Herenga ā Nuku considers walking access desirable is not binding on the OIO or the responsible ministers. They must judge the relevance and weighting to be given to a walking access benefit.