30/01/2025·3 mins to read
PWA Reform Update – What we know and what we are waiting for
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“Piecemeal approach to Public Works Act review risks creating unwieldy, disjointed law," Litigation Partner Nicky Hall.
In this article we provide an update on everything you need to know about the PWA review and why we think its limited scope represents a missed opportunity. You can also read Nicky Hall’s interview with the NBR on this topic, which was published today (paywall).
Background to PWA reform
In July 2024, Minister for Land Information Chris Penk announced that the Coalition Government would be conducting a short, sharp review into the Public Works Act 1981 (PWA), which has not had a substantial amendment since 1988.
The purpose of this review was to improve access to the PWA’s powers, streamline administrative processes, remove duplications and clarify the PWA, better incentivise landowners to reach agreement with acquiring authorities, align compensation processes with international best practice, and improve certain technical aspects.
Notably, the PWA’s disposal functions and offer-back obligations were specifically excluded from scope. To assist in this review, Penk appointed an Expert Advisory Panel (Panel), which engaged with key stakeholders and provided independent specialist advice throughout the process.
What we know and what we can expect
On 14 November 2024, Penk confirmed in oral ministerial questioning that the Panel has completed its review of the PWA and that the “Government is considering the panel's recommendations”. The Panel’s report has not been released to the public, but Penk noted in an interview with The Post that Cabinet was set to make a decision on the review recommendations by Christmas. In terms of the timeframe for an amendment Bill, he noted that it would be introduced to Parliament in the middle of 2025. It is unlikely there will be any short-term visibility on the form and content of the Bill.
We know that the review seeks to modernise the PWA, removing outdated features that have over-complicated the acquisition process. On 28 October 2024, Penk indicated that the review would include amending the current ‘high threshold’ under the PWA for projects to be of both regional and national importance. He also stated in oral questioning that the review focussed on increasing collaboration between local and central government agencies and enabling approval for indirect projects required due to other projects under the PWA. Penk re-emphasised that the review does not aim to increase the Government’s acquisition powers, but to simply make these processes more efficient.
In terms of the review’s effect on Māori land, Penk stated that “we don’t think there is much that would specifically speak to the situation of Māori land… it is very much a last resort proposition, that freehold Māori land would be acquired for this purpose partly because we are sensitive of that unfortunate and unfair history”. This is a timely comment, with Green Party MP Hūhana Lyndon’s Member’s Bill currently before Parliament. Her Bill seeks to address “a flaw” in the PWA, whereby Māori freehold / customary land can be acquired without the consent of affected Māori communities.
When can we get involved?
Certain select “stakeholders” have already had an opportunity to engage with the Panel. As anticipated, the first opportunity for general public input will be at the select committee stage. With the Bill set to be introduced in mid-2025, there is still a substantial waiting period till those stakeholders not consulted during the Panel process can have their say.
What would SG like to see addressed?
As we have mentioned previously, the Government’s piecemeal and fragmented approach to this reform seems to be a lost opportunity for a more fulsome review of the PWA. This could lead to the Act become further disjointed and may not result in the desired level of efficiency.
The exclusion of disposal and offer back obligations from the review also appears to run counter to the Government’s stated promise “to push past impediments” in the “single-minded pursuit of [economic] growth in 2025”. The offer back provisions have historically been the subject of significant litigation leading to delays in disposing of large tracts of land. Importantly, the offer back requirements can prevent the land being sold to private developers who in turn want to use the land for the purposes of housing and infrastructure.
This is an area where the PWA could be reformed to better align with the Government’s agenda. For example, the Urban Development Act 2020 (UDA) gives powers to Kāinga Ora to transfer land to a developer for certain specified works such as housing, urban renewal, water, energy, telecommunications infrastructure and work to avoid or mitigate the effects of natural hazards and climate change. That Act expressly provides that land can be transferred in this way despite offer back provisions in the PWA.
We think there is scope for reform of the PWA to also exempt disposals of surplus land for certain specified types of projects (eg for infrastructure and housing development) from the offer back requirements of the PWA (in the same way that the UDA does for the transfer land from Kāinga Ora to private developers).
We have also had no update regarding how the issues around duplication and collaboration between Crown Agencies and Local Authorities will be addressed. However, we still believe that for this review to produce the envisaged efficiencies, the ability for a landowner to object once a project is fully designated or consented will need to be reduced.
Simpson Grierson will continue monitoring the review throughout its lifetime. If you would like to learn more about the PWA reform, read our previous article: The Public Works Act Review - What you need to know. This explains the reasons for reform, outlines the structure and function of the Expert Advisory Panel, and discusses our experts’ opinions on both the positive features and missed opportunities of this reform.
If you’d like to discuss anything in this article, please get in touch with one of our experts.
Special thanks to Lucy Scottwood for her assistance in writing this article.