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Frequently Asked Questions

The Application Process

Overseas Persons

Legal Advice

Application Fees

Consent Criteria

Miscellaneous

Statutory Declarations

Special Land

The Application Process

Q1.1 - When is consent required?

Consent is required for a transaction if it will result in an overseas investment in sensitive land, an overseas investment in significant business assets or an overseas investment in fishing quota.

Overseas investments in sensitive land

Refer to Section 12 and Schedule 1 of the Act.

Refer to this flow chart to determine if land is caught by Table 1 of Part 1 of Schedule 1 of the Act - (pdf 50KB)

Refer to this flow chart to determine if land is caught by Table 2 of Part 1 of Schedule 1 of the Act - (pdf 43KB)

Overseas investments in significant business assets

Refer to section 13 of the Act.

Overseas investments in fishing quota

Refer to section 57D of the Fisheries Act 1996.

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Q1.2 - Is there an application form?

No, all applications are made by way of letter with annexed supporting information. Please refer to the publications How to make a Land Application under the Overseas Investment Act 2005 (in html or pdf 226KB) and How to Make a Business Application under the Overseas Investment Act 2005 (in html or pdf 133KB).

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Q1.3 - Will you consider draft applications?

No. The Overseas Investment Office does not have the resources to consider draft applications, and it would be unfair to applicants to delay the processing of applications in order to consider draft applications.

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Q1.4 - Can my application be kept confidential?

If for reasons provided for in the Official Information Act 1982 there is good reason to withhold the existence of an application from the public, the Overseas Investment Office will not disclose the existence of the application while it is being considered.

Once an application is determined, the Overseas Investment Office issues a public decision sheet. The Overseas Investment Office will normally consult with the Applicant or the Applicant's legal representatives before releasing any information. If an Applicant can show that good reason exists for withholding some or all information in respect of the application, (but strictly in accordance with the Official Information Act 1982) the Overseas Investment Office will agree to withhold that information. Applicants should be aware that third parties may seek a ruling from the Ombudsman as to whether the material should have been withheld by the Office.

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Q1.5 - Who will decide my application?

The Regulator decides:

• applications involving the acquisition of significant business assets (business decision);
• non-urban land applications, where the land area, together with associated land, exceeds 5 hectares, and the land is not "sensitive" for any other reason and is or does not include special land;
• applications where the land is urban land, is not or does not include special land and the land decision is also a business decision;
• applications where the criterion in section 16(1)(e)(i) of the Act applies;
• land applications involving certain types of leasehold land;
• land applications involving purchasing programmes, where Ministers have initially approved the original proposal;
• applications for farm land exemptions;
• applications for variations;
• applications for exemptions.

The Minister of Finance and the Minister of Land Information jointly decide all "land" applications outside the Regulator's delegated authority. The Minister of Finance and the Minister of Fisheries jointly decide all applications relating to the acquisition of fishing quota.

The list set out above is not a complete list of decisions that have been delegated to the regulator. For more detail, please refer to Current Designation and Delegation Letter - pdf 1MB, 12 December 2007

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Q1.6 - How long will an application take to be processed?

The Overseas Investment Office will not process an application until it receives the correct fee for the application. The Overseas Investment legislation requires that all applications for consent or exemption must be accompanied by the relevant fee. To determine what the proper application fee is, please read Q4.1.

As a rule of thumb, you should expect delegated applications to be processed between 8 and 12 weeks. You should expect applications that require Ministerial consent to be processed in 10 to 12 weeks. However, applications that require Ministerial consent will be dependent on the availability of the relevant Ministers, and applicants should take this into account. The Overseas Investment Office has no control over the availability of Ministers. To determine whether the application is delegated or Ministerial, please read Q1.5.

Significant delays (over and above the timeframes indicated above) may be experienced if the land is or includes foreshore, seabed, lakebed or riverbed, as these types of land will be the subject of a right of first refusal by the vendor of the land to the Crown.

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Q1.7 - Who are the Ministers?

The Minister of Finance is the Minister responsible for the Act and the government's policy on overseas investment. The Minister of Finance is also responsible for overseas investment in significant business assets. The Ministers of Finance and Land Information jointly decide applications relating to overseas investment in sensitive land. The Minister of Finance and the Minister of Fisheries jointly decide applications for overseas investment in fishing quota.

The Minister of Finance is the Honourable Dr Michael Cullen. The Minister of Land Information is the Honourable David Parker. The Minister of Fisheries is the Honourable Jim Anderton.

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Q1.8 - Will the Overseas Investment Office begin processing an application without receiving all the required information, for example, land certificates?

Yes, but the application must be substantially (ie: at least 90%) complete and include the application fee.

An application will not be sent to Ministers or be decided under delegation until all of the required information has been received.

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Q1.9 - How can I ensure that the processing of my application is expedited?

This can be done by:

• Complying with the guidance in Q1.11 - How should applications be presented?
• ensuring that the correct fee accompanies the application letter;
• following the format of the "How to make a Land Application under the Overseas Investment Act 2005" and/or "How to make a Business Assets Application under the Overseas Investment Act 2005", as applicable;
• providing full and relevant information in support of the application;
• carefully considering the information that you have assembled in support of the application and eliminating information that is not relevant to the consent being sought;
• ensuring that all criteria in section 16 (or 18), and the factors in section 17 and regulation 28 are addressed in a comprehensive manner. This includes addressing the criteria and factors that are not relevant and saying why;
• ensuring that the information in the application letter and attached supporting documents is internally consistent.

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Q1.10 - Now that I have filed an application, when will the Overseas Investment Office contact me?

The Overseas Investment Office will always acknowledge receipt of applications by e-mail on the date the application is received. Please remember to provide us with your e-mail address. The Office aims to contact applicants within 10 working days of receipt of an application with a request for further information.

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Q1.11 - How should applications be presented?

Applicants should supply both:

• a hard copy of the application letter and all attachments in support of the application:
  • Do not staple or bind the application letter and attachments. Documents should be collated using bulldog clips and attachments labelled on each page (where possible) with the relevant appendix number;
  • Do not use file dividers to indicate appendix numbers (they become meaningless when the documents are scanned);
  • Company reports and other commercially printed documents must either be photocopied (do not provide the original bound copy) or provided electronically (scanned, or web link) only; and
• an electronic copy of the application letter and all attachments in support of the application.
  • The electronic copy must be an exact replica of the hard copy. Every document must be scanned or otherwise provided electronically.
  • The electronic copy should be provided on a CD or DVD.
  • Please label the CD or DVD clearly.

Scanned documents should be in PDF form, scanned in black and white (unless the document contains essential colour) using text or line art settings wherever possible.

Subsequent correspondence can be delivered in email form (either an email message, or email message with attachments). Note that LINZ email accounts cannot receive emails larger than 8MB.

Applications not meeting these standards may take longer to be processed.

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Q1.12 - How can I satisfy the Overseas Investment Office's requirement to provide a locality map?

The OIO has noticed an increasing number of sensitive land applications being submitted without the locality map required by section 9.5 of the Application Guide. In some cases, the locality maps have been of such poor quality that it has been impossible to determine where the land is situated, relative to (say) the nearest town or other significant landmark.

All applications should contain:

• A spatial search from Landonline showing every adjoining property; and
• A planning map from the relevant territorial authority showing the property relative to any adjoining reserves, etc;
• A Quickmap (or similar) search; and
• A locality map showing the location of the property relative to the nearest town or other significant landmark.

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Q1.13 - How can I ensure that my first schedule (sensitive land) certificate is accurate?

The Overseas Investment Office has noticed that a number of certificates for the purposes of the Schedule One of the Overseas Investment 2005 are not being accurately completed, particularly by solicitors. Errors have included:

• Not noticing that land adjoins sensitive land;
• Wrongly certifying that land adjoins the foreshore; and
• Not dating or signing the certificate.

The certifier must search each and every adjoining title to the land being acquired to determine whether the target land adjoins "sensitive" land in Table 2 of Schedule One. In addition, a search of the territorial authority’s planning maps should be undertaken. There are serious consequences if the certificate is incorrect:

• The decision may be invalid as it is made by the incorrect decision-maker;
• The solicitor's client may have committed an offence by certifying that the information contained in the application is true and correct;
• The Overseas Investment Office may not ask about, and therefore the relevant Ministers may not be informed of, information that is relevant to the application they are considering.

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Q1.14 - How quickly should I submit an application for consent?

The OIO has noticed an increasing number of applications being submitted months after the sale and purchase agreement was signed, often with a request that the application be processed urgently. Such a request is extremely unfair to other applicants, who find that the processing of their application is deferred pending the processing of the "urgent application". In short order, the deferred applications then become urgent.

The Overseas Investment Office does not regard the likely failure to meet the expiry of an "OIO consent" condition in an agreement to be a circumstance warranting urgent consideration of the application.

When time is of the essence, it is better that an application be filed with us at the earliest opportunity. However, we still require that you:

• Follow the application guide;
• Submit a well drafted application; and
• Fully address every statutory factor.

See FAQ 1.15 for more information about processing times.

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Q1.15 - How long does an application take to be processed?

Any "OIO consent" condition should be subject to reasonable time constraints. Set out below are some (very) indicative application processing timeframes - assuming a high quality, straightforward application is submitted, with all relevant information, where no third party consultation is required.

• Business application: 4 weeks
• Delegated land application, no special land: 8 weeks
• Delegated land application, special land: 10 weeks
• Ministerial land application, no special land: 12 weeks
• Ministerial land application, special land: 14 weeks

Applicants must ensure that sufficient extra time is allowed for preparing the consent application.

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Overseas Persons

Q2.1 - When is an individual an "overseas person"?

'Overseas person' is defined in section 7(2) of the Overseas Investment Act 2005 (the Act).

An individual is an overseas person when they are neither:

1. a New Zealand citizen; nor
2. ordinarily resident in New Zealand.

'Ordinarily resident in New Zealand' is defined in section 6(2) of the Act.

Refer to our flow chart to determine whether an individual is an overseas person - (pdf 52KB).

Refer to section 7(2)(a) of the Act for more information.

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Q2.2 - When are companies overseas persons?

'Overseas person' is defined in section 7(2) of the Act.

A company will be an overseas person if:

1. it is incorporated out of New Zealand; or
2. it is a 25% or more subsidiary of another body corporate that is incorporated outside of New Zealand;
3. if an overseas person or persons have:
   1. 25% or more of any class of the company's securities;
   2. the power to control the composition of 25% or more of the board of directors (or other persons or body exercising powers of management, however described); or
   3. the right to exercise or control the exercise of 25% or more of the voting power at a meeting of shareholders of the company.

'25% or more subsidiary' is defined in section 6(5) of the Act.

'Security' is defined in section 6(1) of the Act.

Refer to sections 7(2)(b) and (c) of the Act for more information.

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Q2.3 - When are trusts overseas persons?

'Overseas person' is defined in section 7(2) of the Act.

A trust will be an overseas person if:

1. 25% or more of the trustees are overseas persons; or
2. An overseas person or persons have a beneficial interest in or entitlement to 25% or more of the trust property; or
3. 25% or more of the persons having the right to amend or control the amendment of the trust deed are overseas persons; or
4. 25% or more of the persons having the right to control the composition of the trustees are overseas persons.

Refer to section 7(2)(e) of the Act for more information.

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Q2.4 - In what circumstances will an overseas person have a beneficial interest in or entitlement to trust property?

Overseas persons who are discretionary beneficiaries of a trust will not normally have a beneficial interest or entitlement to trust property. This is because a discretionary beneficiary at law only has a right to be considered as a beneficiary by the trustees (usually because the beneficiary is part of wide range or class of persons that the trustees could potentially benefit). However, if all of the discretionary beneficiaries of a trust are overseas persons, then the trust will become an overseas person. This is because it would then be certain that overseas persons have an entitlement to the trust fund, as any discretion could only be exercised by the trustees among a class of overseas persons.

If the trust is a fixed trust, and 25% or more of the beneficiaries of that fixed trust are overseas persons, then the trust will be an overseas person. Refer to section 7(2)(b)(ii) of the Act.

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Q2.5 - I want to buy a sensitive property with my spouse/partner who is a New Zealand citizen. Do I need consent?

No. Regulations 33(m)-(n) exempt an overseas person from needing consent for a transaction whereby any land or securities they acquire would be relationship property and their spouse is not an overseas person.

See section 8 of the Property (Relationships) Act 1976.

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Legal Advice

Q3.1 - Does the OIO give legal advice?

No, we are not mandated to give legal advice. Please consult your lawyer and/or a lawyer with significant expertise in overseas investment applications.

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Application Fees

Q4.1 - How much does it cost to make an application?

Schedule of Application fees

The applications fees are detailed in Schedule 2 of the Overseas Investment Regulations 2005.

All application fees are inclusive of goods and services tax. Fees must be paid on the making of an application. An application will not be processed unless it is accompanied by the correct fee.

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Q4.2 - Do you give refunds?

No. We will not refund application fees in any circumstances.

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Consent Criteria

Q5.1 - How does the OIO treat lifestyle/residence applications under section 16(1)(e)(i)?

Refer to the Overseas Investment Office's publication Acquisition of Lifestyle Properties - (pdf 78KB)

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Q5.2 - What are the criteria for the approval of non-land applications?

The Applicant must meet the criteria detailed in section 18 of the Act.

Section 14 of the Act outlines the general approach to be taken towards the criteria in section 18.

Section 19 of the Act details how the good character criteria in section 18(1)(c) will be applied.

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Q5.3 - What are the criteria for the approval of land applications?

The Applicant must meet the criteria detailed in section 16 of the Act.

Section 17 of the Act and Regulation 28 detail the factors to be considered when assessing the benefit to New Zealand for the purposes of section 16(e)(ii).

Section 14 of the Act outlines the general approach to be taken towards the criteria in section 16.

Section 19 of the Act details how the good character criteria in section 16(1)(c) will be applied.

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Q5.4 - Who must we provide the good character certificate for?

The good character certificate must address the character of the overseas person, or if the overseas person is not an individual, all the individuals with control of the overseas person.

The individuals with control of the overseas person are normally:

1. the directors of a company; or
2. the trustees of a trust, and those with the power to appoint the trustees of a trust.

In certain circumstances, the Overseas Investment Office may deem other individuals to have control of an overseas person. These individuals may include:

1. a substantial shareholder of a company; and
2. an associate (or the individuals with control of an associate) of an overseas person; and
3. the senior officers of an overseas person (such as the Chief Executive Officer, Chief Financial Officer etc).

Refer to sections 16(1)(c), 18(1)(c) and 19 of the Act.

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Q5.5 - Who can provide a good character statutory declaration?

Each statutory declaration must be made by the applicant, or if the applicant is a body corporate, by an officer of that applicant. The Overseas Investment Office considers that an officer of a body corporate is a person who takes part in the management or direction of the body corporate (for example, the Chief Executive Officer, Chief Financial Officer, or a director of the body corporate).

Refer to section 23(2) of the Act.

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Q5.6 - How should an applicant consult the Department of Conservation?

DOC maintains both a national office in Wellington, and 13 conservancy offices around New Zealand.

If an applicant wishes to implement conservation initiatives, such as:

• conservation covenants protecting existing areas of significant indigenous vegetation; or
• a walkway under the New Zealand Walkways Act;

then the applicant should in the first instance contact:

The Director General of Conservation
PO Box 10420
WELLINGTON

The Overseas Investment Office is unable to consider or give any weight to agreements made with or letters of support provided by conservancies unless those agreements or letters have been approved by the Department of Conservation's national office.

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Miscellaneous

Q6.1 - What does adjoining mean?

'Adjoins' has its literal meaning of 'touching' or next to.

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Q6.2 - What's the policy in relation to properties containing wahi tapu sites?

The usual policy relating to properties containing registered wahi tapu sites is to require the applicant to provide a statement to the effect that the applicant will comply with the requirements of the Historic Places Act 1993, that traditional access arrangements for local iwi will be permitted to continue and to provide evidence that local iwi have been consulted about the investment.

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Q6.3 - Has the Overseas Investment Office changed its approach to International Transactions?

Yes.

An international transaction is the sale of an asset in another jurisdiction. For example: the sale in Australia of the majority of the shares in an Australian registered company that has sensitive New Zealand assets, to another Australian registered company.

The Overseas Investment Commission's policy was that 'international transactions' did not require consent under the Overseas Investment Act 1973.

The purpose of the Overseas Investment Act 2005 differs from the purpose of the 1973 Act. The Overseas Investment Office has now received legal advice that 'international transactions' will need consent.

See also How to Determine Whether International Transactions are caught by the Overseas Investment Act 2005.

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Statutory Declarations

Q7.1 - Who can take a statutory declaration?

The range of persons authorised to take declarations varies depending on where the declaration is made:

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Q7.2 - What statutory declarations must an applicant provide?

An applicant must provide two statutory declarations, confirming:

1. the good character of the applicant or the individuals with control of the applicant; and
2. that the content of the application is true and correct.

The 'good character' declaration is required when the application is lodged. The 'true and correct' declaration is required at the conclusion of the application process. The Overseas Investment Office will let you know when this declaration is required.

Templates are available:

Land – Good character

Land – True and Correct

Business – Good character

Business – True and Correct

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Q7.3 - Who must we provide the good character certificate for?

The good character certificate must address the character of the overseas person, or if the overseas person is not an individual, all the individuals with control of the overseas person.

The individuals with control of the overseas person are normally:

1. the directors of a company; or
2. the trustees of a trust, and those with the power to appoint the trustees of a trust.

In certain circumstances, the Overseas Investment Office may deem other individuals to have control of an overseas person. These individuals may include:

1. a substantial shareholder of a company; and
2. an associate (or the individuals with control of an associate) of an overseas person; and
3. the senior officers of an overseas person (such as the Chief Executive Officer, Chief Financial Officer etc).

Refer to sections 16(1)(c), 18(1)(c) and 19 of the Act.

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Q7.4 - Who can provide a good character statutory declaration?

Each statutory declaration must be made by the applicant, or if the applicant is a body corporate, by an officer of that applicant. The Overseas Investment Office considers that an officer of a body corporate is a person who takes part in the management or direction of the body corporate (for example, the Chief Executive Officer, Chief Financial Officer, or a director of the body corporate).

Refer to section 23(2) of the Act.

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Special Land

Q8.1 - What information must a regulation 13 notice contain?

The content of notices under regulation 13 of the Overseas Investment Regulations 2005 frequently does not contain the information required by regulation 14. In particular, it is often impossible to determine where the special land is in relation to the sensitive land – see the requirement in regulation 14(c)(ii).

It is very helpful to enlist the services of a LINZ accredited agent to confirm the location and status of the special land. If the special land is riverbed, then the Crown may wish to acquire the special land even if it appears to be "navigable" within the meaning of section 261 of the Coal Mines Amendment Act 1979.

Search for a LINZ accredited agent

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Q8.2 - How do I offer special land to the Crown for nil consideration?

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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