Overseas Investment Act 2005

16 Criteria for consent for overseas investments in sensitive land

(1)

The criteria for an overseas investment in sensitive land are all of the following:

Criteria regardless of type of relevant land

(a)

the investor test is met (unless the overseas investment is exempt from this criterion under subsection (3)):

Criteria if relevant land is exclusively residential and not otherwise sensitive

(b)

if the relevant land is residential (but not otherwise sensitive) land,—

(i)

1 or more of the following tests in Schedule 2 are met:

(A)

the commitment to reside in New Zealand test:

(B)

the increased housing test:

(C)

the non-residential use test:

(D)

the incidental residential use test; or

(ii)

the benefit to New Zealand test is met:

Criteria if relevant land is exclusively non-residential land that is sensitive

(c)

if the relevant land is sensitive (but not residential) land,—

(i)

the relevant overseas person is, or (if that person is not an individual) each of the individuals with control of the relevant overseas person is, a New Zealand citizen, ordinarily resident in New Zealand, or intending to reside in New Zealand indefinitely; or

(ii)

the benefit to New Zealand test is met:

Criteria if relevant land is all residential and some or all is sensitive for some other reason

(d)

if the relevant land is residential land but is not described in paragraph (b),—

(i)

the commitment to reside in New Zealand test is met; or

(ii)

the benefit to New Zealand test is met:

Criteria if some relevant land is residential and some or all is sensitive for some other reason

(e)

if the relevant land is not described in paragraphs (b) to (d), the benefit to New Zealand test is met:

(f)

if the relevant land is or includes farm land, either that farm land or the securities to which the overseas investment relates have been offered for acquisition on the open market to persons who are not overseas persons in accordance with the procedure set out in regulations (unless the overseas investment is exempt from this criterion under section 20):

Additional criteria for transaction of national interest

(g)

if the overseas investment in sensitive land is a transaction of national interest, the Minister has not declined consent to the transaction (see section 20C).

(2)

For the purposes of this section, the investor test is met if the relevant Ministers are satisfied that—

(a)

the relevant overseas person has, or (if that person is not an individual) the individuals with control of the relevant overseas person collectively have, business experience and acumen relevant to that overseas investment; and

(b)

the relevant overseas person has demonstrated financial commitment to the overseas investment; and

(c)

the relevant overseas person is, or (if that person is not an individual) all the individuals with control of the relevant overseas person are, of good character; and

(d)

the relevant overseas person is not, or (if that person is not an individual) each individual with control of the relevant overseas person is not, an individual of a kind referred to in section 15 or 16 of the Immigration Act 2009 (which sections list certain persons not eligible for visas or entry permission under that Act).

(3)

Subsection (1)(a) (the investor test) does not apply to an overseas investment in sensitive land if either of the following circumstances applies:

(a)

Circumstance 1:

(i)

the application for consent is under the commitment to reside in New Zealand test only; and

(ii)

the relevant land is residential (but not otherwise sensitive) land:

(b)

Circumstance 2:

(i)

the application for consent is under the increased housing test only; and

(ii)

the increased housing outcome under the test is to be met by a development described in clause 4(1) of Schedule 3 (large apartment developments); and

(iii)

the estate or interest in land relates to 1 or more new residential dwellings in that development; and

(iv)

the transaction is entered into before the construction of the dwelling is complete.

(4)

See also clause 4(5) of Schedule 2 (which relates to the commitment to reside in New Zealand test and relationship property) for a circumstance in which an individual with control of the relevant overseas person can be disregarded in determining whether the investor test is met.

(5)

See section 19 in relation to subsection (2)(c) and (d).

Section 16(1)(a) heading: inserted, on 16 June 2020, by section 12(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 16(1)(a): replaced, on 22 October 2018, by section 12(1) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 16(1)(b) heading: inserted, on 16 June 2020, by section 12(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 16(1)(b): replaced, on 22 October 2018, by section 12(1) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 16(1)(c) heading: inserted, on 16 June 2020, by section 12(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 16(1)(c): replaced, on 22 October 2018, by section 12(1) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 16(1)(d) heading: inserted, on 16 June 2020, by section 12(4) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 16(1)(d): replaced, on 22 October 2018, by section 12(1) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 16(1)(e) heading: inserted, on 16 June 2020, by section 12(5) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 16(1)(e): replaced, on 22 October 2018, by section 12(1) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 16(1)(g) heading: inserted, on 16 June 2020, by section 12(6) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 16(1)(g): inserted, on 16 June 2020, by section 12(6) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 16(2): replaced, on 22 October 2018, by section 12(2) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 16(3): inserted, on 22 October 2018, by section 12(2) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 16(3)(b)(iii): amended, on 16 June 2020, by section 12(9) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 16(4): inserted, on 22 October 2018, by section 12(2) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 16(5): inserted, on 22 October 2018, by section 12(2) of the Overseas Investment Amendment Act 2018 (2018 No 25).