Joel Murphy

Qualifications

LLB, BCom Otago University 2010
Admitted to the Bar in New Zealand 2011

Community & Industry Activity

The Bay of Plenty Property Council Branch Executive Committee
Independent Chairman of Birchwood Packhouse

Contact

DDI: +64 7 570 0682
M: +64 22 345 7761
E: joel.murphy@hobec.co.nz

Joel Murphy is a Partner in Holland Beckett’s property and commercial, and renewable energy teams.

Specialist areas of practice:

Residential, Commercial and Horticultural property
Subdivisions
Developments
Renewable Energy Projects (Solar and Wind Developments)

Joel advises clients on all aspects of property, including acquisitions and disposals, leasing, developments, financing, subdivisions and related transactions. He has particular interest in kiwifruit orchards and residential development transactions.

Joel has specialist expertise in the renewable energy sector having worked as an in-house lawyer at one of the worlds largest solar developers, Lightsource BP. Joel advises both land owners and developers on large scale renewable energy projects throughout the country.

Joel also advises on business acquisitions and disposals, estate planning, asset protection planning, ownership structuring and trust formation.

Outside of work Joel enjoys spending time with his young family, playing touch rugby, fishing and diving.

Joel Murphy's Expertise

Rural & Agribusiness

Trusts, Asset Protection & Estate Planning

Property Law

Commercial Law

Joel Murphy's News & Resources

Solar Development – documenting land rights

The market for solar farms is continuing to grow in New Zealand with an increasing number of landowners being approached by solar developers. It is interesting to see the various approaches being taken by solar developers when it comes to documenting land rights with landowners (i.e. option agreement, lease and/or easement). The process for documenting a solar development stems from a Letter of Intent / Heads of Terms, to more formal binding agreements such as an Investigation License, Option to Lease and ends with a Lease or Easement. We have provided a brief summary for each document as follows: Letter of Intent (“LOI”) / Heads of Terms (“HOT”) This document sets out the key commercial terms that will form the basis of the Investigation Licence/ Option to Lease and the Lease or Easement. Generally the only binding terms of this document are terms regarding exclusivity and confidentiality. This means that the landowner cannot disclose the proposed commercial terms of the project to a third party (except for your professional advisors). The Landowner will also be prohibited to deal with any other solar developer named on the LOI / HOT for the term of the exclusivity. Investigation Licence / Option to Lease The Investigation Licence (also referred to as an Option to Lease) grants the developer a timeframe to investigate the land, carry out their due diligence, secure finance to fund the solar project, obtain resource consent and any other required consents and obtain Overseas Investment Office approval (if applicable). Typically the Investigation Licence is granted for 3 - 4 years and the developer will pay the landowner an upfront compensation payment (in the form of a licence fee, signing bonus or other) for the right to tie up the landowners land for this period of time. The Investigation Licence will annex the form of lease which the parties will be bound by should the developer exercise an Option Notice. If the developer exercises their right to lease the land the developer will issue an ‘Option Notice’. The parties will then enter into a Lease to govern the relationship from the Lease commencement date onwards, with the developer being the tenant and the landowner being the landlord. Careful consideration needs to be taken by landowners to ensure not only legal aspects are covered but also just as important, the practical factors (ie. crop / stock compensation, access to land during calving etc). Lease The terms for the Lease are substantially, if not completely, agreed to at the time that the Investigation Licence is entered into by the parties. The Lease will not only set out the rights and obligations of the parties relating to the land which the developer exercises its Option Notice over but it should also address the rights and obligations of the parties over the balance of the landowner’s land not subject to the Lease. These rights include whether any easements for electricity and access are required to be granted over the balance of the land for the operation of the solar development. The Lease will also likely include a clause for requiring the landowner to enter into a Tripartite Agreement (discussed further below), a CPI rent review mechanism, whether any grazing licences are to be granted over the leased area, decommission of the project, assignment and many more important provisions. Any reinstatement obligations that the developer (as tenant) is required to comply with once the Lease has ended should also be addressed within the Lease. Contrary to the above, we have seen some solar developers in New Zealand document the rights and obligations of the parties within an easement. These interests are exempt under the Overseas Investment Act 2005 if they meet the Overseas Investment Office’s (“OIO”) criteria of an easement arrangement. However the OIO has indicated that easements are not an appropriate arrangement to be used for solar farms. Tripartite Agreement One notable feature that we are increasingly seeing in solar farm leases (and sometimes even in the Investigation Licences) is the requirement for the landowner to enter into a Tripartite Agreement, also known as a Direct Agreement. These agreements involve three parties in the context of a solar farm lease, being the landowner, the developer and the developer\'s financier. The purpose of a Tripartite Agreement is to regulate the three parties in respect of the solar farm lease and record certain arrangements between them, including but not limited to the process in the event of a default under the Lease. Generally a Tripartite Agreement is a developer financier driven agreement which grants the developer\'s financier the right to step into the shoes of the developer (as tenant) and become a party to the Lease in place of the developer (as tenant). Usually this would only be in a situation when the tenant is in financial trouble or has failed to remedy a breach. The developer’s financier thereby assumes some or all of the rights and obligations under the Lease as if it were the developer. This provides security to both the landlord and the financier to the extent that in the event of a developer (as tenant) default (i.e. does not pay rent), the financier has the right to step in and remedy the breach (i.e. pay the rent) to ensure the landlord does not terminate the Lease resulting in the financier losing its significant investment in the solar development. However, the Tripartite Agreement also includes additional onerous provisions which often supersede existing Lease terms which a landlord needs to be aware of. For example the Tripartite Agreement may extend the period of time which a tenant has to remedy any breach (cure period) or prohibit the landlord from being able to terminate the Lease or suspend the performance of any of the landowner’s obligations (as landlord) unless the notice periods and obligations under the Tripartite Agreement are first complied with. If you would like to discuss any solar matters or have been approached by a solar developer please contact us.

Land Covenants – protecting or preventing development?

Land covenants are very commonplace in modern subdivisions and often impose significant restrictions on the way a property can be developed and used, now and into the future (sometimes indefinitely). While usually intended to promote and protect the amenity of subdivisions and preserve property values in the years to come, covenants can stymie development, prevent neighbourhoods from moving with the times and create difficulties for owners trying to renovate and extend or sell their properties. Common issues are: Requirements that the developer or other third party approve in writing any plans and specifications for construction of buildings on the land. Often these requirements are overlooked, and approval is not actually sought or there is nothing in writing to show that this requirement was complied with. This causes issues when the property is sold as a purchaser inherits (and could be required to fix) any covenant compliance issues when they buy a property. These requirements can also be written in such a way that it’s not clear whether approval has to be obtained for the initial construction of buildings on a property, or whether the obligation is ongoing and approval must be obtained for any new additional buildings (like a tiny home or extra garage) or changes to original buildings - which would cause further issues if the developer no longer exists. Prohibitions on subdivision or the number of dwellings that can be constructed. It is very common for covenants to specify that only a single dwelling can be constructed on a property, which can prevent an owner from redevelopments such as converting their property into a home and income and inhibits intensification of residential land. Inflexible material requirements, like obligations to use only certain types of cladding, which have become obsolete or problematic over time. These requirements can also prevent the use of new superior materials and building innovations. It is possible to put a time limit on covenants and to update or remove them, but the process of doing so (if not provided for in the original registered covenants) can be painful. Updates or removal can be done by: Obtaining the consent of all owners in the affected subdivision - but often this is simply not practical due to the number of impacted owners or the risk of one or more owners refusing to cooperate or requiring some sort of payment to do so. Making a Court application for an order under sections 316 and 317 of the Property Law Act 2007. Court proceedings can be costly and lengthy, with no guarantee of success. To be successful, an owner would have to convince the Court that: There has been some relevant change (such as the use of the land or in the character of the neighbourhood) which means that the covenant should be modified or removed; The continuation of the covenant as is would impede the reasonable use of the property; and There is no-one who will be substantially detrimentally impacted by the modification or removal of the covenant. If you are considering buying, selling, developing or redeveloping a property that you know or suspect is affected by covenants, it is prudent to check the property’s title and understand the impact the covenants may have on your plans and what your options. Our property team can assist with this, please get in touch.

Holland Beckett Law promotes three Partners

Holland Beckett Law today announced the promotion to partnership of three of its associates, Joel Murphy, Jeremy Sparrow and Tim Conder effective from April 1st. The Bay of Plenty wide law firm has offices in Tauranga, Rotorua and Whakatāne with over 130 staff. The firm caters to a vast range of legal needs including property, commercial, trusts & estates, resource management, civil litigation, employment, and family law. Holland Beckett Law also has a specialised Māori Legal Unit. While many provincial law firms are struggling with succession planning we are proud to say that our recruitment strategies of the past 10 years have produced the next generation of Holland Beckett Law leaders. They are true experts in their respective specialities, and we are thrilled to announce their promotion to partnership. Joel Murphy, Partner Joel joined Holland Beckett in 2019 after returning from the United Kingdom, working as an in-house counsel for one of the world’s largest large scale solar developers. He has 12 years of legal experience and, prior to his experience in the United Kingdom, he worked at Meredith Connell in Auckland. Joel advises clients on all aspects of property, including acquisitions and disposals, leasing, developments, financing, subdivisions and related transactions. He has particular expertise in solar farms, kiwifruit orchards and residential developments. Joel is an advocate for the growth of the Bay of Plenty and is a committee member of the Central Regional Committee for Property Council New Zealand. Outside of work Joel enjoys spending time with his young family, fishing, diving and playing touch rugby. Jeremy Sparrow, Partner Jeremy joined Holland Beckett Law as a graduate in January 2012, and has become the first law clerk to Partner of Holland Beckett Law. Jeremy started in the wider litigation department, where he acted on some of the firms major cases including businesses affected by the Rena sinking. Jeremy then spent two years working as a lawyer in London. Upon his return to the Bay of Plenty, Jeremy has developed into a specialist employment lawyer. Jeremy has grown a substantial employment practice and continues to be sought after by clients for his effective and practical advice: this is from some of the firms biggest clients to the smallest. Outside of the office, Jeremy is an avid tennis fan and a passionate traveller. Jeremy is also the President of Tauranga Musical Theatre, and spends most of time outside of work volunteering in this capacity. He is also the Honorary Solicitor for Musical Theatre New Zealand. Tim Conder, Partner Tim joined Holland Beckett Law in January 2016 after two years as a Judges’ Clerk in the Auckland High Court. Like Jeremy – Holland Beckett is the only firm that Tim has worked at while practicing as a lawyer. Tim has driven the creation of a specialist public and local government team within the firm, that serves both local government and private clients who are involved in government related matters. Tim’s work has included assisting insurers and private clients defending regulatory charges in a range of settings (such as environmental offending, export offences and health and safety matters), as well as working for Council prosecutors and acting as an amicus curiae, to assist the Court during a challenging environmental trial. He has also appeared in the Court of Appeal on numerous occasions, on diverse issues such as Māori Land Trusts, Fair Trading Act cases and murder sentencing. More broadly, Tim has been heavily involved in advising clients about regulatory compliance and engaging with central and local government. Throughout the changing landscape of Covid-19 restrictions, Tim was frequently called in at short notice to advise businesses on the way that new laws would impact their business and was involved in keeping essential projects for Tauranga’s development moving during periods of lockdown. He has also helped clients transition through changes to privacy and environmental law, while helping lobby on their behalf for well thought out legislation that will meet the policy objectives of central government while allowing businesses to thrive. Tim’s practice is marked by his efforts to use his knowledge of the law and his creativity to achieve positive outcomes for clients. For Tim, success if about finding the best way through the law for individual clients – even if it means thinking outside the box.

Solar farms taking New Zealand by storm

New Zealand is currently seeing another boom in the renewable energy sector but this time in the form of large scale solar farms. There is currently a land grab of existing dairy and grazing farms by national and international solar developers. This is partly due to the high New Zealand wholesale price of electricity and the New Zealand government setting a target of 100% renewable power generation by 2030. This is further compounded by the push for electrification of historical technology and the demand for EV vehicles. There are some significant benefits to landowners converting from existing farm activities to solar, including the security of long term leases with lucrative rentals. In addition to the lucrative leases, there is an opportunity for the landowners to graze sheep on the solar farm and receive an additional return. Conversely, there are some significant risks involved which landowners need to be made aware of, including the likeliness of the landowner not being able to return the land back to dairy farming at the expiry of the lease. We are seeing various approaches by developers in the documentation of solar farms in New Zealand. Generally, the solar project will initially be documented with a letter of intent / memorandum of understanding between the developer and landowner. This is then progressed to an investigation licence and option to lease (Option) or agreement to lease. The Option will usually include a payment for signing and a per hectare rate during the Option term. It will also include the developers conditions which would typically include due diligence, Overseas Investment Office (OIO) consent and sometimes a subdivision consent to enable a longer lease than permitted under the Resource Management Act (depending on the developer). The Option is negotiated side by side with the lease itself. We are also seeing some developers proposing easements in substitution of the more commonly used lease. When acting for a landowner, there are some really important questions / points which need to be addressed, including: Is the structure of the documentation fit for purpose? The lease and timing of existing leases in place; Rental (per hectare rate or linked to a percent of electricity generation). Rent reviews, which will generally be annual CPI / PPI increases and ratcheted. Understanding whether the permitted use is adequate for all intended purposes. The developer’s obligations (including maintenance). Whether a security bond for decommissioning the solar farm is being provided. Assignment and whether the developer can assign to a third party (ie. an investor / purchaser of the project ) with or without the landowners consent. Whether a Tripartite Agreement is required to be entered by the landowner, developer and the developer’s financier. Reinstatement obligations. Health and safety obligations. Landowner grazing rights. Termination rights (including early termination rights of the developer). Force majeure (unforeseen circumstances that prevent a party from fulfilling its obligations). If you have been approached by a developer or would like to understand more about large scale solar farming, Joel Murphy has first-hand solar development experience working in London for one of the world\'s largest solar developers and has negotiated multiple large scale solar farms throughout New Zealand for landowners. Please get in touch to discuss any solar matters.

I want to build in my backyard, now what?

Historically, it was very common for properties to have had some sort of “DIY” building works, whether it be a garden shed, out-house, tree house or internal renovations. These days, it feels like there is so much “red-tape” and cost that comes with doing building work on your land that is very hard to justify doing it (or doing it properly). So, if you want to build your own shed or addition, this is what you should know: It’s my land, can’t I just do what I want? Unfortunately, no. There are rules in place regarding how you can and cannot use your land. This is set out in the relevant ‘District Plan’ prepared by your local council. You may need to obtain a building or land use consent from the council. These consents give you permission to build a structure or use your land and its natural resources in a way that is not allowed as of right in the District Plan. Do I need a building or resource consent? This depends on what you want to do. Generally building consents will be required for any structural building work, new plumbing and drainage works, retaining walls or fences over a certain height or swimming pools. Land use consents, or resource consents, will normally be required for activities such as property development (including building additions or alterations), earthworks, or changes to use of natural resources (ie. water). If you have engaged a builder or other professional, they will be able to tell you if you need a consent. You can also talk to your local council or look on the council’s website. If I do need a consent, what do I need to do? You will need to make an application to your local council. The council will decide whether to grant the consent or not, and may impose conditions on you. It can be a long and drawn out process. If you have a builder, they will generally apply for any building consent on your behalf. If you need a resource consent and need assistance, our experienced team members can guide you through the process. What if I need a consent and I don’t want to get one? If you decide to undertake the work without the proper consent, you will need to be aware that you could later be required by the council to remove or modify the works undertaken. You should also be cautious if you later sell the property, so that the purchaser is not mistaken about it lawfulness of the addition/work. Do I need to tell my insurance company? You should talk to your insurance company before you undertake any major works, whether consent is required or not. Depending on your policy, your insurer may require you to obtain a short term construction policy, such as covering loss and damage to materials on site. They may also require documentation on completion, for example, certification from a qualified electrician that works were done to the proper standard. Holland Beckett Law can help you to determine if your planned works need consent, or with the consenting process.