New Public Works Act Property Disposal Standard and Guideline
In this article we explore LINZ’s new Standard and Guideline for the disposal of land under the PWA.
Wednesday, 14 February 2024
On 3 December 2023 Toitū Te Whenua Land Information New Zealand (LINZ) updated their Standard and Guideline for the disposal of land under the Public Works Act 1981 (PWA).
LINZ Standards and Guidelines set out procedures to be followed by Vendor Agencies and LINZ Accredited Suppliers, along with the minimum levels of information that must be provided to LINZ when asking them to make decisions. This enables LINZ to assess whether recommended actions comply with the law and government policy.
While there has generally been no change in the underlying legislation, LINZ have made a number of changes to the way in which it expects property disposal work to be provisioned to it and the information to be supplied.
In this article we briefly summarise some of the key changes.
Objective Surplus Date and Effective Date of Valuation for Offer Back
PWA land is subject to offer back to former owners or their successors. LINZ determines whether land is still required for a public work based on the decisions and actions (or inactions) of the Vendor Agency, and may consider factors such as:
- The period of time since the land was last actively used for the public work
- The extent of use of the land for the construction or operation of the public work
- The existence of any leases or informal arrangements for non-public works activities on the land
- The commencement of a previous disposal that was not completed
- The approaches from former owners or their successors that raise questions about the ongoing use of the land
The effective date of valuation for offer back is determined from the objective surplus date and is either the present day or an earlier date on which the offer back should have been made, if the offer has not been made in a timely manner following the objective surplus date. The Vendor Agency is responsible for ensuring that the disposal process is carried out in a timely manner, and is now required to advise LINZ where this is not the case. Vendor Agencies are required to seek guidance from LINZ on the objective surplus date and effective date of valuation early in the disposal process where needed.
Based on the revised guidelines and our own observations from recent interactions with LINZ, we expect to see greater emphasis on the objective surplus date and the effective date of valuation for offer back. Vendor Agencies should anticipate greater scrutiny on the circumstances which surround their decisions to declare a property to be surplus to its requirements and the effective date of valuation for offer back.
Transfers between Crown agencies
Where a Vendor Agency has received interest from another acquiring agency to use a property for another public work, but has not been able to agree on the terms and conditions (including value) of a transfer or setting apart within six months of the notification of the requirement, the Vendor Agency must advise LINZ immediately. LINZ will then confirm the process for resolution of the matter. This is a new directive from LINZ.
This requirement likely seeks to address situations where the Crown may end up having to back date any future offer back under s.40 due to protracted and possibly abandoned actions to transfer a property for another public work. The Courts have previously given guidance that 6 months is a reasonable time frame to determine if land is required for another public work (Hall v Attorney-General [2012] NZHC 3615).
Identify former Māori land
LINZ now require Accredited Suppliers to identify, as early as possible in the disposal process, former Māori land. Should a property be found to be Māori land prior to being acquired for a public work, new additional requirements arise in situations where:
- The Crown intends to transfer to a Local Authority for another public work, or
- Dispose of land to an adjoining owner, and
- When applying offer back under s.40.
Any questions?
If you wish to gain an expanded understanding of any of the changes or have any questions about a property disposal for your agency, please don’t hesitate to contact APL Property.
LINZ Accredited Suppliers - APL Property
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