LEGISLATIVE REFORM ROUND-UP
CAN SPECIALISTS REALLY CAP THEIR LIABILITY IN PRODUCER STATEMENTS?
YOUR POOL SAFETY FLOATIES:
Navigating New Zealand’s pool legislation
MEET THE TEAM
Kennedi Morgan
Legislative Reform Round-Up
In this article Simon Rickit and Aoife Crumley review all the reforms affecting local government including those in Resource Management, the Public Works Act, the Local Government (System Improvements) Amendment Bill and Local Water Done Well.
There’s a lot going on in Wellington right now, especially when it comes to legislation that affects local government. You will no doubt have been keeping up with certain reform steps, but we know how hard it has been to keep track of all the updates when things are moving at pace across different areas of law. To make life easier we’ve prepared the below one-stop-shop summary of the state of play across key reform affecting local government – current, for the time being at least!
RESOURCE MANAGEMENT
As you’ll know by now, the RMA is back — but not for long.
Two new Acts — the Natural Environment Act and the Planning Act — are coming to Parliament in late 2025, with Minister Chris Bishop aiming to pass them into law by mid-2026 and local government implementation beginning in 2027.
• The reform is framed around development, property rights, and infrastructure delivery, designed to narrow the scope of what is managed under resource law. More activities will be permitted by default, especially where environmental effects are less than minor.
• Resource consents will still be required in some cases, but with fewer categories and less opportunity for public submissions.
• People who aren’t directly affected will generally not be able to object to a consent or re-litigate a decision.
In preparation for these reforms, The Resource Management (Consenting and Other System Changes) Amendment Act 2025 has recently come into force with several new rules intended to bridge the gap before the new system is in place. For councils, the immediate impacts include:
• Plan change freeze: Councils are prohibited from notifying new plan changes until December 2027, with limited exemptions. Council plan changes already notified must be publicly withdrawn as soon as possible, and no later than 19 November 2025.
• Stronger powers around natural hazards: Proposed rules on hazard management will now take immediately upon notification. Councils also have broader authority to decline applications where significant hazard risks exist (except for infrastructure and primary production).
• Ministerial override powers: The Minister can amend or remove plan provisions by regulation, if they’re seen as a barrier to development, housing, or employment.
• Relaxed heritage protections: More flexibility is provided to remove or modify heritage designations in district plans.
• Longer consent durations: Renewable energy and infrastructure consents can now last up to 35 years, with a 10-year lapse period before expiry.
• Stronger penalties for non-compliance: Maximum fines for companies jump to $10 million, and individuals face fines of up to $1 million. Preventative abatement notices and consent revocation are also now on the table for repeat breaches.
• Past non-compliance matters: Councils can now consider an applicant’s track record as part of the decision-making process, and impose conditions to manage future risk.
The review of national policy statements is already well underway, with consultation now closed. We expect the next steps for tranches one and two (infrastructure and development and primary sector) will be a report to the Minister followed by his decision. For tranche three (freshwater) it is anticipated that there will be further consultation on an exposure draft. Tranche four (housing growth) is expected to be subject to further consultation once RMA legislative reform progresses.
PUBLIC WORKS ACT
The Public Works (Critical Infrastructure) Amendment Act 2025 (PWA), part of the “Infrastructure for Growth” agenda, received Royal assent and came into force on 26 August 2025. This reform process, initiated in June 2024, modernises and improves the land acquisition processes, and better supports infrastructure development while protecting landowner rights. Key changes include:
• Compensation: To encourage earlier agreement and recognise the disruption caused by compulsory acquisition, incentive payments will reward landowners who voluntarily agree to sell before a Notice of Intention is issued.1 Home-loss and land-loss payments have increased,2 with home-loss payments now extending to multiple dwellings on a single property.
1 Compensation paid shall be 15 per cent of the total land value, capped at $150,000.
2 Compensation paid shall be five per cent of the total land value, capped at $92,000.
• Streamlined Process: Landowners receive comprehensive information about the acquisition, their rights, entitlements, and an invitation to negotiate in the first instance. The Minister or local authority must engage in good faith negotiations for a minimum of three months (or six months for Māori freehold land) before issuing a Notice of Intention for compulsory acquisition.
• Critical Infrastructure Process: Certain nationally or regionally significant public works projects listed in Schedule 2A of the PWA can follow an accelerated land acquisition process. This applies to projects listed in Schedule 2 of the Fast-track Approvals Act and the Roads of National Significance listed in the Government Policy Statement on land transport 2024. This streamlined process is available to the Crown, local authorities, and authorised network utility operators, with transitional provisions allowing ongoing projects to switch to this faster pathway. Landowners and interested parties may object directly to the Minister for Land Information or the relevant local authority within specified timeframes, with submissions, agency responses, and final comments carefully considered before a final acquisition decision is made. However, agencies can opt out of the accelerated process on a project-by-project basis, reverting to the standard PWA procedures heard by the Environment Court – though opting out means landowners lose eligibility for incentive and recognition payments.
• Emergency Provisions: New provisions will enable land acquisition following a declared state of emergency, supporting quicker restoration of critical infrastructure and community recovery.
LOCAL GOVERNMENT (SYSTEM IMPROVEMENTS) AMENDMENT BILL
The Government’s Local Government (System Improvements) Amendment Bill aims to ease pressure on rates by encouraging councils to concentrate on essential services and reduce spending on activities outside their core responsibilities.
The Bill reframes local government purpose around delivering quality local infrastructure, public services, and regulatory functions in a cost-effective way. Under the proposed changes, councils will:
• Prioritise core services such as roads, public transport, waste management, emergency management, and community facilities (like libraries and reserves) when preparing budgets and setting rates.
• Report publicly on financial performance using new measures developed by the Department of Internal Affairs.
• Disclose annual spending on contractors and consultants, providing greater transparency for ratepayers.
• Follow a standardised code of conduct and standing orders, introduced nationally to ensure consistent governance across all councils.
• The Bill also includes regulatory relief. It removes certain obligations such as tikanga Māori considerations when appointing directors to council-controlled organisations and clarifies how third-party funding can be used for growth-related capital projects, ensuring ratepayers aren’t charged twice.
LOCAL WATER DONE WELL
No doubt councils will be well versed with ‘Local Water Done Well’ following Councils’ recent submission of their Water Service Delivery Plans (WSDP). However, in case you missed it both the Local Government (Water Services) Act and the Local Government (Water Services) (Repeals and Amendments) Act came into force on 26 August 2025.
Local Water Done Well aims to address the challenges associated with drinking water, wastewater, and stormwater infrastructure. While decision-making authority has been returned to councils, the framework introduces increased oversight from central government. At a national level, the government’s role will focus on ensuring financial sustainability and compliance with economic and quality standards.
The Secretary for Local Government Paul James is currently reviewing the submitted WSDPs. Councils are expected to publish their final plans in December. Attention will then shift to the implementation of the Implementation Plans, ensuring they align with regulatory requirements for infrastructure, environment, and economics. Delivery of financially sustainable water services is expected to begin from 1 July 2028.
To support this process, the Department of Internal Affairs (DIA) has provided a helpful two-page summary of key deadlines and compliance obligations.
Of interest to wastewater service providers, the first set of wastewater environmental performance standards is expected to be released imminently. These standards are intended to make wastewater infrastructure consenting simpler and more consistent but the devil will no doubt be in the detail.
GET IN TOUCH
For more information or for any questions on the reforms impacting local government, reach out to Simon Rickit or Aoife Crumley
Your Pool Safety Floaties: Navigating New Zealand’s pool legislation
In this article, Wade Morris discusses the legislative framework for pool safety, its changes within the last decade and what that means for councils.
This month I presented a webinar for SIMPLI on Statutory Interpretation. There was a great turnout, and even greater questions and discussion. From definitions of household units, to which dictionaries to use when interpreting words and finally to a larger discussion on pools – inspections, compliance pathways, and distance thresholds for a pool to be considered a part of a household unit.
This all made me think, quite a few of our readers may be interested in hearing more. So, grab a pair of floaties, and let’s dive into our latest article on pool safety legislation.
The Building Act 2004 requires all residential swimming pools in New Zealand to be inspected every three years to ensure their barriers continue to comply with safety requirements. The key to conducting proper compliance assessments lies in understanding which standards apply to a pool based on when it was constructed. Different regulatory frameworks have governed pool safety over time, so it’s a bit of a slippery issue for councils.
THE LEGISLATIVE FRAMEWORK
Pool safety legislation in New Zealand has evolved significantly within the last decade. This has created different compliance pathways depending on when a pool was built. The most significant transition occurred on 1 January 2017, when the Building (Pools) Amendment Act 2016 repealed the Fencing of Swimming Pools Act 1987 (FOSPA). The result was that the pool safety requirements became a part of the Building Act 2004.
As well as establishing the requirement to proactively monitor pool safety, the amended Building Act requires all residential pools must have physical barriers that restrict access by unsupervised children under five years of age. The Act establishes that pool barriers must comply with either the current Building Code or the Building Code that applied when the pool was originally installed, provided a building consent, code compliance certificate, or certificate of acceptance was issued.
COMPLIANCE ASSESSMENT BASED ON CONSTRUCTION DATE
Pools built before 1 January 2017
For existing pools constructed before 1 January 2017, the Building Act provides specific transitional provisions. These pools are deemed to comply with the requirements of the Act, if the barriers complied with the Schedule to the Fencing of Swimming Pools Act 1987 immediately before 1 January 2017 and continue to meet those requirements.
The schedules in the Fencing of Swimming Pools Act did create an exemption for compliance in certain circumstances. The regime, did however, require an application. It is not sufficient for a property owner to point to a building consent or permit to support the existence of an exemption. The decision to grant an exemption rested with the elected council, and it would be our expectation that a different decision making process was required, and therefore a standalone decision would exist.
Pools built after 1 January 2017
Pools constructed after 1 January 2017 must comply with Building Code that was in force at the time the code compliance certificate was issued.
It is therefore essential to review the property file maintained by the Council prior to any triennial inspection to determine the correct regime under which compliance is achieved and to identify any past non-compliances that could re-occur.
COMMON COMPLIANCE ISSUES
In our experience there are some common issues which can result in a failed triennial pool inspection. When carrying out an inspection, an inspector should be careful to identify items that allow children to climb into the immediate pool area, such as vegetation and garden furniture and deteriorated hardware that has created gaps in the pool fencing, or does not allow gates to close and latch automatically.
ENFORCEMENT
Where an issue has been identified, the Council should require the non-compliance to fixed. Issuing a notice to fix for the non-compliance will usually be sufficient, however from time to time an escalated enforcement response may be required. A Council should be prepared to see these matters through, as the consequences of allowing non-compliances to exist are simply too high.
GET IN TOUCH
The idea for this article came from Wade’s presentation on Practical Statutory Interpretation.
To learn more on the above, or what else his presentation covered – reach out to Wade Morris
Can specialists really cap their liability in producer statements?
In this article, Mark Tan takes a deeper look at a question raised through a recent High Court decision, “Does Section 5C(1) apply to a situation where a specialist provides a producer statement to a Council and purports to limit its liability on the face of the statement?”
The Fair Trading Act 1986 (FTA) prohibits parties in trade from engaging in misleading and deceptive conduct. Section 5C(1) prevents parties from contracting out of that prohibition. In plain English: you can’t simply write “we’re allowed to mislead you” into a contract and expect it to stick.
However, there is an interesting question coming out of the High Court’s decision in Tauranga City Council v Harrison Grierson Holdings Limited [2024] NZHC 714: “Does Section 5C(1) apply to a situation where a specialist provides a producer statement to a Council and purports to limit its liability on the face of the statement?”
As with many (gnarly) legal questions, the answer is “it depends”. Yes, section 5C(1) provides that parties cannot generally contract out of the prohibition on engaging in misleading and deceptive conduct. But with every rule there’s almost always an exception. The FTA is no different, and parties can contract out of the prohibition when they meet four conditions perfectly.
WERE THE PARTIES “IN TRADE”?
This requirement is likely to be easily met as the meaning “trade” under the FTA is broad and includes “any trade, business, industry, profession, occupation, activity of commerce, or undertaking relating to the supply or acquisition of goods or services”.
Using the above case as an example, the Council engaged Harrison Grierson to design the structure; and Constructure reviewed the structural design. Both engineering firms issued producer statements, which had the Limitation Wording. The High Court held that the Council’s acquisition of engineering design services was an activity of commerce and was in trade.
DID ANYONE ACTUALLY AGREE TO THE LIMITATION WORDING?
Where it gets tricky is whether there is sufficient evidence that the parties agreed (or understood that they had agreed) to the Limitation Wording. The Limitation Wording in itself is not determinative, and surrounding circumstances (e.g. the terms of the relevant contract) would be taken into account to determine the matter.
To provide a simple example, there is more than a good chance that the Court would find that the parties agreed (or understood that they had agreed) to the Limitation Wording, when the relevant contract specifically provides that the Limitation Wording (on the producer statement) applies.
What happened in the Tauranga case is somewhat the opposite. There were limitation of liability clauses and references to the producer statements in the relevant contracts, but the producer statements had lower liability caps when compared to those contained in the contracts. As there was no evidence that the parties agreed to the Limitation Wording, the Court wasn’t prepared to infer from the circumstances that the Council agreed (or understood that it had agreed) that the lower liability caps in the producer statements themselves would apply.
DOES THE AGREEMENT ACTUALLY CONTRACT OUT OF FAIR TRADING PROTECTIONS?
If there was an agreement to limit liability, the next question is whether that agreement counts an agreement to contract out of the prohibition on engaging in misleading and deceptive conduct.
As individual circumstances may differ, we’d answer that question with reference to the Court’s approach in the case above. The High Court adopted a seemingly liberal approach to the issue. It held that the parties had agreed to contract out of the prohibition in circumstances where there was an agreement that should misleading and deceptive conduct occur, “liability is to be limited to the value of the liability cap” (at [332]).
WOULD IT BE FAIR AND REASONABLE FOR THE PARTIES TO BE BOUND BY THE AGREEMENT TO LIMIT LIABILITY (IF ANY)?
Another tricky piece of the puzzle is that the Court will have to consider whether it’s fair and reasonable for the parties to be bound by any agreement to limit liability. The factors to be considered under this heading are many (including the subject matter of the relevant contracts, the value of the services procured, and the bargaining power of the parties) and this article isn’t the place to carry out a full analysis of what counts as fair and reasonable.
However, what we can do here is discuss briefly how the Court addressed the issue in the Tauranga case. Tahana J held that it was fair and reasonable for the Council to be bound by the limitation of liability clauses in the contracts with Harrison Grierson and Constructure after considering (among other things) that:
• The Council was “a large council with access to legal advice”, so it wasn’t a case where the Council was in an inferior bargaining position with reference to the contracts it had with Harrison Grierson and Constructure.
• The value of Constructure contract was also reasonably low ($15,000); and
• While the value of the Harrison Grierson contract was reasonably high (over $400,000), the Council did negotiate to the contractual terms with Harrison Grierson.
KEY TAKEAWAY
To answer the question of this article, it’s likely that section 5C(1) won’t apply to a situation where a specialist provides a producer statement to a Council and purports to limit its liability on the face of the statement (if the above conditions are met). With this in mind, what then would be a key takeaway for Councils? Our answer: “Take legal advice before signing any contracts with specialists”.
The use of standard form contracts with limitation of liability clauses in the construction industry may be relatively common, and producer statements may also contain standard wording that purports to limit liability. However, none of these should serve as barriers to negotiating better, clearer, and/or more consistent terms on any limitation of liability. This is especially so when the financial stakes of a project are high. When things go awry, it’s obviously better to mitigate (or maybe even eliminate) the scope of any reasonable dispute around limitation of liability.
GET IN TOUCH
For more information or questions on the above, reach out to Mark Tan
Meet the team Kennedi Morgan
Each month we’ll spotlight a member of the Meredith Connell team, so you can get to know the people behind our Local Government practice.
Kennedi moved to Auckland from Hastings to study a Bachelor of Science in Psychology and Statistics. It’s an unconventional path into law – but that combination of analytical thinking and understanding of people brings a distinctive perspective to legal work and has helped her excel in each of her roles at Meredith Connell starting as Office Assistant in 2019.
From there, she quickly moved through the ranks – from Legal Admin, to Client Admin, to Practice Admin, and now Legal Executive. She gained comprehensive knowledge of Meredith Connell’s systems and processes, as well as insight into various clients, making her a valuable resource for anyone she works with.
But she didn’t stop there.
While being a Practice Admin, she spent her free time studying a diploma in legal studies. With so much to juggle, she continued to deliver consistent results and remained a reliable presence across the firm.
She found her legal studies genuinely engaging: “The cases that we studied were really interesting and extensive; from contracts, to land law, to business law, professional practice, estates. We studied everything.”
The culture at Meredith Connell was crucial during this period, providing support that allowed her to balance her work responsibilities while completing her studies.
“My coworkers really helped drive my curiosity,” Kennedi says. “They encouraged continued learning by offering context and explanations for the work I was supporting them with, which helped connect the dots between my diploma and day-to-day practice.”
She completed her diploma in late 2024, and became a Legal Executive not long after.
As Legal Executive to the Local Government team, Kennedi sees projects and programmes from start to finish, encompassing both the legal work and the client admin.
Property work has become a particular area of interest for Kennedi.
“There are so many nuances in property work, so there’s always something new to learn.”
Her progression through the firm has given her a client and administrative advantage – few things surprise her, and she can anticipate issues before they arise.
Like many on our team, Kennedi is an avid reader outside of work. She found one of her most recent reads, “I Who Have Never Known Men” by Jacqueline Harpman a particularly compelling story.