Notice of Decision
Case: 201520051
Decision Date
01 December 2015
Decision
Consent has been granted to
James Rudolph Baron Palumbo (Lord Palumbo) (the “
Applicant”) to give effect to an overseas investment in sensitive land,
being the Applicant's acquisition of a freehold interest in approximately 26.9954
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hectares of land at 609A & 609B Orapiu Road, Waiheke Island.
Consent is granted subject to the following conditions:
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Statutory Conditions of Consent
Section 28 of the Overseas Investment Act 2005 (the “
Act”) provides that it is a
condition of every consent, whether or not it is stated in the consent, that:
(a) the information provided by each applicant to the Overseas Investment
Office or the relevant Ministers in connection with the application was
correct at the time it was provided; and
(b) each consent holder must comply with the representations and plans made
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or submitted in support of the application and notified by the Overseas
Investment Office as having been taken into account when the consent was
granted, unless compliance should reasonably be excused.
For the purposes of section 28(1)(b), the representations and plans made or
submitted in support of the application and taken into account when consent was
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granted are those contained in the correspondence listed in the statutory
declaration of James Rudolph Baron Palumbo of Southwark dated 10 November
2015 and in all attachments annex
the ed to that correspondence.
Special Conditions
Interpretation under
Any term or expression that is defined in the Overseas Investment Act 2005 and
used, but not defined, in this consent has the same meaning as in the Overseas
Investment Act 2005.
Act means the Overseas Investment Act 2005.
Application Letter means the application letter dated 31 August 2015.
Business Plan means the business plan set out in Appendix 5 of the Application
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Letter.
Consent Holder means James Rudolph Baron Palumbo of Southwark (Lord
Palumbo of Southwark).
Individuals with Control means:
(a) the individuals who have, directly or indirectly, a 25% or more
ownership or control interest in the Consent Holder or a Parent of the
Consent Holder; and
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(b) the members of the governing body of the Consent Holder or a Parent
of the Consent Holder.
Investment means the acquisition of the Land.
Land means approximately 26.9954 hectares of land comprised in certificates of
title NA115D/977, NA115D/978 and NA266/3 (all North Auckland Registry).
OIO means the Overseas Investment Office.
Parent of Consent Holder means a person that has, directly or indirectly, a
25% or more ownership or control interest in the Consent Holder, and includes a
person that has, directly or indirectly, a 25% or more ownership or control
interest in another Parent of the Consent Holder.
Settlement Date means the date the acquisition of the Investment took place.
Special Conditions
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When the transaction must given effect
1.
The consent will lapse if the Investment has not been acquired by and
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transferred to the Consent Holder within 12 months of the date of consent.
Good character
2.
The Individuals with Control must:
(a) continue to be of good character; and
(b) not become an individual of the kind referred to in section 15 or 16 of
the Immigration Act 2009.
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Resource Consents
3.
The Consent Holder must use all reasonable commercial endeavours to
obtain any necessary consents and approvals including resource consents
(“
Consents”) required to implement Phase 1 of its Business Plan.
4.
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The Consent Holder must have applied to the relevant local authority or any
other relevant body for any necessary Consents required to implement
Phase 1 of its Business Plan by 30 November 2016.
the
5.
The Consent Holder must provide the OIO with the following information as
soon as practicable:
(a) a copy of any Consents granted; and
(b)
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if a Consent is not granted, or is granted on terms which substantially
alter its Business Plan, a report detailing the reasons for this (including
copies of relevant correspondence between the Consent Holder and
the relevant body).
Construction
6.
Within three years after such Consents are obtained (as referred to in
condition
3
Released above), or the Consent Holder is advised by the relevant local
authority or other relevant body that no Consents are required, the Consent
Holder must complete Phase 1 of the development described in its Business
Plan.
Environmental Protection
7.
The Consent Holder must implement the five year plan set out in the
Revegetation Plan Report provided as Appendix 15 of the Application Letter
by 30 November 2021.
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Special Land
8.
The Consent Holder must, upon becoming the registered proprietor of the
Land:
(a) Adopt and be bound by any offer, arrangement or agreement that the
vendor has made, reached or entered into with the Crown in relation
to the special land that forms part of the Land;
(b) If so required by the Crown, enter into a deed of covenant with the
Crown to be so bound; and
(c) Deal with the Crown in accordance with the requirements of the Act as
if it were the party making the initial offer of the special land to the
Crown.
Reporting to the OIO
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9.
The Consent Holder must notify the OIO in writing as soon as practicable,
and no later than twelve months from the date of consent, whether
settlement of the acquisition of the Investment took place. If settlement of
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the acquisition of the Investment did take place, the notice must include:
(a) the Settlement Date;
(b) final consideration paid (plus GST, if any);
(c) the structure by which the acquisition was made, and who acquired
the Investment;
(d) where applicable, copies of transfer documents and settlement
statements; and
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(e) any other information that would aid the OIO in its function to monitor
conditions of consent.
10. The Consent Holder must report in writing annually to the OIO detailing
progress of its Business Plan (“
Annual Report”), including the following:
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(a) the Consent Holder’s compliance with condition
s 3, 4, 6 and
7;
(b) the number and value of any new job opportunities created on the
the
Land; and
(c) the Consent Holder’s implementation of Phase 2 of its Business Plan.
The first Annual Report is due on 30 November 2016 and the final report is
due on 30 November 2021 (or such other date as advised by the OIO in
under
writing).
11. The Consent Holder must notify the OIO in writing within 20 working days
if:
(a) the Consent Holder, any Individual with Control, or any person in
which the Consent Holder or any Individual with Control has, or had at
the time
Released of the offence or contravention, a 25% or more ownership or
control interest, commits an offence or contravenes the law (whether
convicted or not); or
(b) any Individual with Control:
(i)
ceases to be of good character; or
(ii) commits an offence or contravenes the law (whether convicted
or not); or
(iii) becomes aware of any other matter that reflects adversely on an
Individual with Control’s fitness to have the Investment; or
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(iv) becomes an individual of the kind referred to in section 15 or 16
of the Immigration Act 2009;
(c) the Consent Holder:
(i)
ceases to be an overseas person; or
(ii) disposes of the Investment.
12. If requested in writing by the OIO, the Consent Holder must provide a
written report within 20 working days (or such other timeframe as specified)
on any matter relating to its compliance with:
(a) the representations and plans made or submitted in support of the
application and notified by the regulator as having been taken into
account when the consent was granted; or
(b) the conditions of this consent.
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Disposal Process
13. If in the opinion of the OIO condition
6 or
7 is not complied with (“
Non-
Act
Compliance”), the Consent Holder must dispose of the Investment as
follows:
(a) The Consent Holder must, within six weeks of receiving notice from
the OIO that in its opinion there has been Non-Compliance (the
“
Notice Date”):
(i)
procure from an independent registered valuer, and provide to
the OIO, a written market valuation of the Investment; and
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(ii) appoint licensed real estate agents to actively market and
appropriately advertise the Investment for sale on the open
market; and
(b) The Consent Holder must dispose of the Investment within eighteen
months of the Notice Date to a third party who must not be an
Official
associate of the Consent Holder. If the Consent Holder has not
disposed of the Investment at the expiry of the eighteen month
period, the Consent Holder must offer the Investment for sale by
the
auction or tender within a further three months (with no reserve price
or minimum bid set for the auction or tender) and dispose of the
Investment.
(c) The Consent Holder must provide a written report to the OIO quarterly
under
(by the last day of March, June, September and December) about the
marketing activities undertaken and offers received for the
Investment. The Consent Holder must also report at any other time if
required by the OIO.
(d) The Consent Holder must provide a written report to the OIO within
two months of the Investment being disposed of, providing evidence
that:
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(i)
the Consent Holder has disposed of the Investment (including
copies of any sale and purchase agreements, settlement
statements and titles showing the purchaser as registered
proprietor); and
(ii) the purchaser is not an associate of the Consent Holder.
Monitoring Conditions of Consent
For the purpose of monitoring conditions of consent, the Overseas Investment
Office may, under section 38 of the Act, require the consent holder to provide
information or documents, or both, that are specified in the notice. Under section
40 of the Act, the Overseas Investment Office may also require a consent holder
to provide a statutory declaration verifying the extent to which the consent holder
has complied with the conditions of consent, and, if the consent holder is in
breach of a condition or conditions, the reasons for the breach and the steps the
consent holder intends to take to remedy the breach.
Sanctions
The Act provides for civil and criminal sanctions for breaching the Act, failing to
comply with the conditions of consent and failing to provide information required
by the Overseas Investment Office. The Overseas Investment Office has an
obligation to investigate and act upon alleged and suspected breaches of the Act.
General
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A reference to the “Overseas Investment Office” in this Notice includes a
reference to the regulator (as defined by the Act). A reference to the Applicant
includes a reference to the consent holder.
Act
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Senior Solicitor
Overseas Investment Office
Official
the
under
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