PROPOSED CHANGES TO LINZ STANDARD AND GUIDELINE FOR ACQUISITON OF LAND UNDER THE PUBLIC WORKS ACT

HOW DOES IT AFFECT LOCAL AUTHORITIES

DEVIL’S IN THE DETAIL

What is changing Standard modified by LINZ to represent when Crown Agencies, Local Authorities & Utility Providers are required to comply with Standard & Guideline LINZ wish to promote the use of the standard and guidelines by Local Authorities as “Best Practise”

WHY THE CHANGE? LINZ recognises that once Local Authorities reach the Section 26 stage of the Public Works Act 1981 (PWA) and seeks a proclamation from the Governor General, that all past actions carried out back to the section 18 actions will be reviewed by LINZ and if not found compliant with the standards will be rejected.

How to Avoid Going Back to Square One Getting your Ducks in a row.

How will the changes to the standard & guideline help? Clarification now provided around “Good Faith” negotiations which are essential from Section 18 “notice of desire to acquire” through to Section 23 “notice of intention to take land”. WHY? Because this requirement is the one which both LINZ and objectors to the Environment Court on Section 23 action are most likely to contest. Standard and Guideline will stipulate that ‘good faith’ must actually occur during the whole engagement not just from Section 18 to Section 23 period. These negotiations must involve actual physical engagement not just telephone and negotiations.

GOOD FAITH DEMONSTRATED The LINZ Standard requires that all local authorities must be able to demonstrate by reference to formal documentation that every reasonable avenue of negotiation has been pursued continuously. Stopping & recommencing negotiations does not constitute “good faith”. LINZ have set out chronology requirements within the guidelines to clarify their requirements and to assist both Crown Agencies and Local Authorities to comply and avoid rejections.

Service of Notices The Public Works Act provides examples of wording of s18 & s 23 notices and stipulates service however the revised Standard and Guideline will provide further clarification around service and require evidence of the notice being recorded against the title of the affected land. Clarification around process and service of notices to enter for survey or investigation purposes under s 110 & s111PWA has also been expanded and clarified to assist with obtaining compliant entry onto land.

What Else is changing or being added ?

Initial letter to owner – under s66 PWA landowners are entitled to “reasonable” legal, valuation or costs incurred in respect of the land taken or acquired. The revised Standard proposes to place a $ limit on these costs which if any amount is higher that the amounts specified in the “Initial Introduction Letter” they will be subject to a “test of reasonableness” at a later time. The letter is intended to state that amount the Crown will agree to in advance of to reimburse the landowner on presentation of an invoice.

The amount that will be set in the letter will be based on reasonable fees estimated for a commercial, residential, industrial property for similar type and location to ensure exorbitant fees are not charged on basic actions by landowners agents. OF NOTE is the landowner must firstly confirm the that the invoice is correct and that the time and actions carried out are in fact correct before reimbursement will be considered. What Else is changing or being added ?

A valuation instruction template for landowners to instruct their Valuers to assess compensation payable has been devised and will be placed on the PINZ website to ensure Valuers are being given correct instructions on the methodology required under the PWA. Information around advertising when dealing with service of notices when owner has deceased and heirs cannot be located being provided. What Else is changing or being added ?

Changes/Additions Cont. Requirement to notify landowners after Proclamation vesting land as public work completed of rights under s78 of the PWA for claiming compensation to be inserted into Standard & Guideline. A compensation agreement to be developed to cover payment of compensation after s26 action or after s78 action as agreement for sale and purchase cannot be used due to land already having been vested by Proclamation.

Changes/Additions Cont. There will now be a requirement within the Standard to seek discharge to the compensation certificate off the titles once the land is gazetted. WHY? Often the land may be subdivided and the compensation certificate is carried over onto all the new titles. Landowner’s are entitled to request the removal of the compensation certificate which could become very costly for the Crown or Local Authority to action.

Additions A new separate s52 PWA setting apart Crown land or public reserve for local work now to be inserted as guidance for local authorities. The section of the Standard relating to S114 PWA declaring land as road has been amended to acknowledge Local Authorities use of this section.

End Result Uniformity of practise and standard by both Crown and Local Authorities on use of the Public Works Act to acquire land in a statutorily compliant way. Local Authorities can claim use of the Standard & Guideline as “ Best Practise” principle.

OUTCOME

Acknowledgements LINZ EXECUTIVE COMMITTEE, TPG, OPUS, NZTA, LAPA, LINZ Please note the standard and guideline is currently undergoing final legal review by LINZ and will be subject to final Executive Committee signoff before it will be available for public notification. THERE MAY BE MINOR AMENDMENTS TO WHAT HAS BEEN PUT FORWARD IN THIS PRESENTATION