Provincial Government

The New Zealand Constitution Act 1852 (Imperial) which established autonomous government in the colony, concluded the era of government by ordinance and paved the way for the introduction of provincial government. Section 72 says:

"General Assembly may regulate sales, etc., of waste lands – Subject to the provisions herein contained, it shall be lawful for the said General Assembly to make laws for regulating the sale, letting, disposal, and occupation of the waste lands of the Crown in New Zealand; and all lands wherein the title of [Maori] shall be extinguished as hereinafter mentioned, and all such other lands as are described in an Act of the session holden in the tenth and eleventh years of Her Majesty, chapter 112, to promote colonisation in New Zealand, and to authorise a loan to the New Zealand Company, as demense lands of the Crown, shall be deemed and taken to be waste lands of the Crown within the meaning of this Act …"

Provincial Government was introduced in 1854. Under the general and at first nominal supervision of the central government the provinces were to sell the public lands of the Crown at the price they decided upon, control the size of holdings and the method of sale, and retain the profits. Prior to the introduction of Provincial government the Governor promulgated the Waste Land Regulations of 1853, which established comprehensive rules for the sale of Crown land. The Waste Land Act 1854, which confirmed the Regulations of 1853 and other regulations then in force, was enacted (inter alia) to enable the Superintendent and Council of the Province to recommend specific land sales regulations for the Province for the approval of the Governor and Executive Council. The powers of the Provinces were made very comprehensive.

The Foreshore

The foreshore has held a special place in the history of our land law from the earliest times. In the early maps of our cities, e.g., Wellington 1840, Nelson 1842, New Plymouth 1842, Dunedin 1866 roads are shown adjoining mean high water mark reserving access to the foreshore for the public.

One of the notable features of the Reserves Act 1854 enacted at the time when provincial government was introduced, was the protection given the foreshore. Whilst harbour and industrial development along selected water margins were obviously an important consideration in the fledgling colony, the transfer of powers of Crown alienation of the lands of the Crown to the provinces was not to be a means of alienation of a national resource – the foreshore, the land below mean high water mark. Except where title to the foreshore was to be granted to the superintendent of the province, in order to alienate land below mean high water mark, an affirmative resolution of the provincial council confirmed by the superintendent was required, then an affirmative resolution of the Executive Council of central government and finally a grant from the Governor. This four step process ensured that provincial government could not easily sell the foreshore. Section 2 of the Reserves Act is set out in full in footnote 15.

Water Boundaries

In relation to water boundaries Reg. 10 of the Waste Land Regulations 1853 says:

"Every allotment of Rural Land must so far as circumstances and the material features of the country will admit be selected of a rectangular form, and where fronting upon a river, road, lake, or coast, be of a depth from the front of at least half a mile. No such allotment must be selected as to monopolise the wood or water in any particular location".

Reg. 12 says:

"In districts to where the lines of road are not laid out, a right of road reserved and allowance made in land of three to five percent.

Where lands shall be purchased in districts in which future lines of road have not been determined and laid out, a right of road will be reserved in the Grant, an allowance being made to the purchase for such reserve according to the annexed scale …"

Until the Provinces could promulgate province specific regulations (or take advantage of an existing province specific regulation act or ordinance) these general regulations were in force. They clearly envisaged allotments fronting water boundaries and the reservation of roads as appropriate. There were no express regulations for reserves along water boundaries, but there was a general power to lay out roads which could include a road along water.

The Provinces were quick to exercise their independence and promulgate their own regulations. Representative of the provincial regulations are the Land Regulations 1856 for Auckland and Otago respectively.

Auckland, New Zealand Gazette 1 May 1856 at p81.

Reg. 5 The Superintendent of the said province may, from time to time, and as to him it shall seem meet, reserve portion of the said land for public roads or other internal communication … or for the inhabitants at any town or village or as the sites of public quays or landing places or on the sea coast or shores of navigable streams, or for any other purpose of convenience, health or enjoyment.

Reg. 17 In the case of such allotment being unsurveyed, and bounding a river, road, lake or coast it must be as nearly as possible of a rectangular form, and the depth thereof must be at least three times the length of such frontage and in all cases not to interfere with ... dividing the adjoining land into convenient allotments.

Otago, New Zealand Gazette 12 February 1856 at p34.

Reg 12. "… and the land specified in every application shall so far as the features of the country and the survey of the Province will admit, be of a regular form, and when fronting a river, lake, road or coast be of a depth not less than twice the length of the frontage …"

Reg 16. It shall be lawful for the Superintendent with the advice and consent of the Provincial Council, to reserve from sale and set aside for public use, any land within the province of Otago, and such reserves shall be dealt with by Ordinances of the Superintendent and Provincial Council.

In neither province were there express requirements for reservations along water.

The Waste Lands Act 1854 was followed by the Provincial Waste Lands Act 1856 which was disallowed, over doubts concerning the powers of the General Assembly to delegate the powers it purported to give the Provinces. The Waste Lands Act 1858 repealed the Act of 1854, and provided clear powers of delegation from the Governor to the Provinces. Thereafter, the General Assembly at the request of the Provinces enacted statutes to empower the Provinces with specific powers in relation to the sale of Crown land.

In this respect, a selection of the legislation applying in the provinces after the Act of 1858, illustrates the diversity in the provinces.

Section 33 of the Taranaki Waste Lands Act 1874 says:

33. All land reserved from sale for public highways under the provisions of this Act shall be vested in the Superintendent in trust for the purpose of public highways but so as that such highways may be diverted and otherwise dealt with under the provisions of "The Highways and Watercourses Diversion Act, 1858.

Section 20 of the Auckland Waste lands Act 1874 stipulates:

20. Reserves for public highways bridle-paths and footpaths shall be made by the Superintendent, and shall be set forth on the authenticated maps of the Land Office; and the Superintendent and the Provincial Council may by Act alter the line of any such highways, bridle-paths or footpaths, and may dispose of the land theretofore used for the same.

In Canterbury a different approach was taken, as expressed in provisions of the Canterbury Waste Lands Act 1873:

7. Clause numbered twenty is hereby repealed, and in lieu thereof the following provision is made:- Reserves for public highways, bridle-paths and footpaths shall be made at any time whatever by the Superintendent or the Board, or by the Chief Surveyor under the authority of the Superintendent, and shall be set forth on the authenticated maps in the Land Office. The Superintendent and the Provincial Council may by Ordinance alter the line of any such highways, bridle-paths and footpaths, and dispose of the land theretofore used for the same.

10. All rural land in the said Province shall be sold subject to a right of laying out a road or roads over the same, if found necessary or expedient on survey; and a Crown grant shall issue to the purchaser or purchasers of any such land, excepting thereout so much thereof as may be required for such road or roads.

Marginal land in the guise of roads along water boundaries was extensively but not consistently applied in the Provincial Period. In this period Central Government codified the law on Crown grants in the Crown Grants Act 1866. Section 12 in respect of water boundaries said:

XII. Whenever in any grant the ocean sea or any sound bay or creek or any part thereof affected by the ebb or flow of the tide shall be described as forming the whole or part of the boundary of the land to be granted such boundary or part thereof shall be deemed and taken to be the line of high water mark at ordinary tides.

This provision clearly was to cover grants where no land along a water boundary was reserved, and implicitly recognised that situation.

Short’s Law of Roads and bridges (1907) written at a time when independent commentaries were scarce, states the early position on roads along water at p53:

"As a rule a road is reserved, one chain wide, by the Crown along all high water lines of the sea and of its bays, inlets, and creeks, and along the margin of all lakes exceeding 50 acres in area, and along the banks of all rivers and streams of an average width of 33 fee (see Section 110 of "The Land Act 1892"). This provision has, however, not been always in force, and there are some cases where Crown Grants have been issued which give riparian rights. Thus, if the Crown Grant describes a river as one of the boundaries of the land granted thereby, and such river is a non-navigable one, the title of the owner extends to the centre line of the river. The question as to whether a road exists at any place can be answered by reference to the record maps in the office of the Chief Surveyor of the district."

Short was a qualified lawyer, a Commissioner under the Commissioners Act 1903, The Public Works Act 1905, The Municipal Corporations Act 1900 and other Acts. At the time of publication he was Chief Clerk of the Department of Roads, and had specialised in the law relating to roads in New Zealand for 23 years. His observation is deserving of great respect, and in any event, the records of the public offices dealing with surveys and land titles would confirm the accuracy of the statement he made. The problem with sales of Crown land in this period – at a time of extensive alienation of the most accessible land – is that there was a lack of consistency even in some instances along the same waterway.

Post Provincial Government 1876-1892

After the abolition of provincial government the legislative structures which have influenced public administration to the present time began to emerge as consolidated statutes. The first Public Works Act of 1876 consolidated and repealed some 109 Acts and ordinances. Section 92 dealt with the stopping of roads and reads:

92. No road shall be stopped unless and until a way to the lands adjacent as convenient as that theretofore afforded by the said road is left or provided, unless the owners of such lands give consent in writing to such stoppage.

The Act of 1876 was repealed by the Public Works Act 1882, in which section 92 was re-enacted as a new section 93 to say:

93. No road shall be stoped unless and until a way to the lands adjacent as convenient as that theretofore afforded by the said road is left or provided, unless the owners of such lands give consent in writing to such stoppage, and no road along the bank of a river shall be stopped either with or without consent (emphasis added).

This is an extraordinary legislative provision providing roads along rivers with quasi-constitutional protection, i.e. an act of parliament would be necessary before a riverside road could be stopped. Possibly this far-reaching piece of legislation should not be seen in isolation, for a few years earlier legislation had been enacted to place the foreshore in a similar position, i.e., road closure and dealings with the foreshore required the special scanction of an Act of the General Assembly. Section 147 of the Harbours Act 1878 15 says:

147. No part of the shore of the sea, or of any creek, bay, arm of the sea, or navigable river communicating therewith, where and so far up as the tide flows and re-flows, nor any land under the sea or under any navigable river, except as may already have been authorised by or under any Act or Ordinance, shall be leased, conveyed, granted, or disposed of to any Harbour Board, or any other body (whether incorporated or not), or to any person or persons, without the special sanction of an Act of the General Assembly.

Roads along rivers had statutory protection. Roads along the high water mark of the sea or around lakes were not given any special statutory protection. (Note now however s118 Public Works Act 1981 as re-enacted by s362 and the eighth schedule to the Resource Management Act 1991 (referred to below) provides a measure of protection for all stopped roads along all water boundaries).

Section 93 of the Public Works Act 1882 was re-enacted (in each case without amendment) as s121 of the Public Works Act 1894, next as s130 of the Public Works Act 1908 and then as s147 of the Public Works Act 1928. The deathknell for this unique provision concerning roads came in the Public Works Amendment Act 1952 where s12 states:

12. (1) Section one hundred and forty-seven of the principal Act is hereby amended by omitting the words "and no road along the bank of a river shall be stopped either with or without consent".

(2) Section one hundred and forty-seven of the principal Act is hereby further amended by adding the following subsection as subsection two:

"(2) No closed or stopped road or street along the bank of a river or stream or along the margin of a lake or the sea nor any portion of any closed or stopped road or street shall be granted or disposed of or added to any other land or alienated in any other manner without the consent of the Minister of Lands, who in his discretion may refuse his consent or give his consent subject to such conditions as he thinks fit:

"Provided that the consent of the Minister of Lands shall not be necessary in any case where the closed or stopped road is dealt with or disposed of under the Land Act 1948."

The law relating to stoppages of roads along rivers was later to go through two further stages (in 1981 and again in 1991 - illustrated below), and be extended to include roads along the sea coast and lakes.

The Public Works Act 1981 built upon s12 of the Public Works Amendment Act 1952 to read as s118:

118. Consent of Minister of Lands required to dealing with certain stopped roads – Notwithstanding section 117 of this Act, no road or part of a road stopped under section 116 of this Act along –

(a) The bank of a river or stream that has an average width of 3 metres or more; or

(b) The margin of a lake with an area in excess of 8 hectares; or

(c) The mean high water mark of the sea, including its bays, inlets, and creeks –

Shall be granted, dealt with, disposed of, added to any other land, or alienated in any other manner except under the Land Act 1948, without the consent of the Minister of Lands, who in his discretion may refuse his consent or give his consent subject to such conditions as he thinks fit to impose.

Section 118 was repealed and substituted by section 362 of the Resource Management Act 1991, and is now in force as a new section 118 of the Public Works Act 1981:

"118. Application of other Acts to stopped roads –

(1) Notwithstanding section 117 of this Act, where any road or any portion of a road along the mark of mean high water springs of the sea, or along the bank of any river, or the margin of any lake (as the case may be) is stopped under section 116 of this Act –

(a) Section 345 (3) of the Local Government Act 1974 comprising the road or portion of the road so stopped if that land was formerly a road vested in a local authority (including a state highway vested in a local authority):

(b) Part IVA of the Conservation Act 1987 (relating to marginal strips) shall apply to the land comprising the road or portion of the road so stopped if that land was formerly a Government road or a state highway or other road vested in the Crown.

(2) For the purpose of subsection (1) of this section, ‘lake’ and ‘river’ have the same meaning as in section 2 (1) of the Resource Management Act 1991."

In terms of this section, if the stopped road was formerly vested in a local authority, it automatically becomes an esplanade reserve (s1(a)) and if the stopped road was formerly vested in the Crown (s1(b)), it becomes a marginal strip subject to part IVA Conservation Act 1987. In other words, access for the public is retained notwithstanding the stopping.

Section 147 of the Harbours Act 1878 eventually became section 150 of the Harbours Act 1950 which was repealed by section 362 and the Eighth Schedule to the Resource Management Act 1991 and was not replaced.

The Early Land Acts

The first consolidated Land Act (the forerunner of the current Land Act 1948) was enacted in 1877. This Act was superseded by the Land Act 1885. Instructions were made under the authority of s169 of the Land Act 1877 16  – The Instructions for Settlement Surveyors on Demesne Lands of the Crown – requiring land to be reserved along all navigable rivers at a width of 100 links. Under the authority of s244 of that Act, a range of sites for docks, quays, landing places etc could be reserved along water margins.

In 1886, Survey Regulations under the Land Act 1885 (New Zealand Gazette 1886 Vol 1 p634) were enacted to apply to Crown land. 17

Reg. 27 said:

"Suitable sites for schools are to be reserved, about 10 acres in rural districts under 5 acres in suburban districts. Also at least 100 links frontage to all navigable rivers and coasts making the traverse lines if possible the boundary of such reservation. Bushes in sparsely-timbered country are to be reserved, and in bush country all clumps of valuable timber; also stone quarries, gravel and sand pits for road making where conveniently situated, for trunk and district lines."

These instructions to settlement surveyors and Reg. 27 of the Survey Regulations 1886 were the first national riverside requirements to be put in place.

A perusal of s169 and 244 of the Act of 1877 and of s4 and s227 of the Act of 1885, may indicate that in respect of the marginal strip requirements along rivers these regulations could be ultra vires and unlawful, as the reservations were not specifically authorised. However, as in the period before 1892 these strips were reserved as roads – and there was ample authority to lay off roads. 18 Thus the issue of the legality of the regulations which in context are instructions by the Government to its employee surveyors may not be of great importance. What the regulations did show, was an awareness of a need for a national policy. That policy was to authoritatively emerge as section 110 of the Land Act 1892.

Probably the best summary of the alienations made up until 1892 is contained in an appendix to the first Official Year Book (1892) which includes the following table: 19

Million Acres

Freehold   

13.6

Held by lease and with right of purchase   

1.7

Held on lease from the Crown   

12.5*

Reserved for public purposes   

6.6

Crown lands   

8.4

Midland Railway Company   

4.0

Native lands   

10.8

Barren, lakes, etc.   

9.0
  66.7

* Of this area, 11.8 million acres were held on pastoral lease.

Land Act 1892 – The Law Applying for the Next 56 years

The enactment of s110 and the companion s15 of the Land Act 1892 initiated the modern era of law relating to marginal strips along water boundaries. For the first time legislation directed that land was to be reserved from sale or other disposal of Crown land along the sea coast, rivers and streams of a specified width and around lakes of a stated area.

Section 15 reads:

15. Notwithstanding any sale or other disposal of any unsurveyed rural or pastoral land, for cash, or on deferred payments, or for occupation with right of purchase, or perpetual lease, or lease in perpetuity, or in any manner whatsoever, and at any time previous to the approval of the plan of the survey of the same by the Chief Surveyor of the district, the Governor shall have the right to exclude from such sale or other disposal any road-lines which may be required through or over any such lands and to reserve any of the said lands which are situate on the seashore, the margin of lakes, or on river-banks, or which are required for any of the purposes mentioned in section two hundred and thirty-three, without paying compensation for any land so excluded and reserved.

Section 110 says:

110. There shall be reserved from sale or other disposition a strip of land not less than sixty-six feet in width along all high-water lines of the sea, and of its bays, inlets, or creeks, and along the margins of all lakes exceeding fifty acres in area, and along the banks of all rivers and streams of an average width exceeding thirty-three feet, and, in the discretion of the Commissioner, along the bank of any river or stream of less width than thirty-three feet.

The law stated in these sections was significant and substantive, and proved to be durable. The requirement for special sites to be reserved which was first expressed in the Royal Instructions of 1840, was embodied in s15. Section 110 was new. The law as stated in these sections remained the law for the next 56 years until amended by s58 of the Land Act 1948. In the meantime, when the Land Act 1892 was replaced by the Land Act 1908 sections 13 and 122 of the latter statute were identical to sections 15 and 110 of the Act of 1892. When the Land Act 1908 was repealed and replaced by the Land Act 1924, section 14 repeated s13 of the Act of 1908 with minor drafting amendments and s129 is identical to the previous s122. Whilst s58 of the Land Act 1948, the statute which repealed and replaced the Land Act 1924, retained the structure of s129 of the Act of 1924 and its predecessors, the new provision in 1948, made some significant changes to the law (dealt with later). Sections 13 and 122 of the Land Act 1908 and sections 14 and 129 of the Land Act 1924 are included in full as Appendix 9.

Although from 1892 onwards the law was clearly stated the actual status of marginal strips has nevertheless been a cause of some confusion. Prior to 1892 marginal strips had been shown on the record plans as roads. What was the status of marginal strips post 1892? Were they roads or reserves? From an administrative perspective the issue was clarified in 1914 when the Surveyor-General, E H Wilmot, introduced the modern concept of distinguishing the strips from roads, colouring them red or pink on the plan. If possible the strip should be labelled "River-bank Reserve". The language of s110 and subsequent sections "These shall be reserved from sale or other disposition …", does not create a "reserve" in the sense of a reserve subject to the early Public Reserves and Domains Acts and succeeding statutes. J A B O’Keefe in "The Law and Practice relating to Crown Land" Butterworths, Wellington (1967) notes at p8 in respect of reservations from sale "These are not "reserves" stricto sensu, but remain part of the allodium until another step is taken e.g. setting apart as a reserve or proclamation as road etc". In other words, the marginal strips which are not road are strips of Crown land and not reserves dedicated to some specific public purpose. Reserving land from "… sale or other disposition …" does not create a legal reserve; the land is merely retained by the Crown.

The legal distinction between these strips and roads is so important, that the law relating to roads should briefly be enlarged upon. Section 43 of Transit New Zealand Act 1989 currently contains the definition of what is a "road" as previously was included in the Public Works Acts, 20 i.e., "Road means a public highway whether carriageway, bridle path, or footpath; and includes the soil of:

(a) Crown land over which a road is laid out and marked on the record maps …"

From a brief consideration of the law relating to roads, and the law relating to reservations from sale or other disposal of Crown land, two principles emerge.

1. If a marginal strip is shown on the record plans as road whether before or after 1892, the status of that land is public road. In this respect, despite the provisions of the Act of 1892 authorising the exclusion of a marginal strip as Crown land, if a surveyor over the period 1892-1914 showed the strip as road, i.e., coloured it burnt sienna on the record plans that strip is legally a road. If a strip alongside water at any time up to the present is shown as a road, that strip is a road not a "reserve".

2. If land is shown as a strip reserved from sale along water on Crown plans, whether before or after 1892, that strip is Crown land.

Land Act 1948

After 56 years of administration in terms of the provisions introduced in 1892 in respect of water margins, the new Land Act of 1948 in s58, retained the basic principles of the earlier legislation, but enlarged the scope of reservations. The new section required strips 66 feet wide (20 metres) along the coast, along rivers and streams more than 10 feet wide (3 metres) down from 33 feet (10 metres) in earlier legislation, and on the margins of lakes more than 20 acres (8 hectares) down from 40 acres (20 hectares).

The Minister had the power to approve a reduction of the 20 metre strip width to 3 metres (proviso to subsection (1) (c)). The obligation to reserve the strips also related to unsurveyed Crown land and to pastoral land being leased long-term. Strips were required on any leased land and could be created at lease renewal without compensation.

Section 58 was to apply for over 40 years. It was repealed by the Conservation Law Reform Act 1990 (s37 and the Schedule to that Act).

Section 58 is set out below.

Land Act 1948

58. Land reserved from sale - (1) There shall be reserved from sale or other disposition of Crown land under this Act a strip of land not less than [20 metres] in width –

(a) Along the mean high-water mark of the sea and of its bays, inlets, and creeks:

(b) Along the margin of every lake with an area in excess of [8 hectares]:

(c) Unless the Minister of Conservation considers it unnecessary to do so, along the banks of all rivers and streams which have an average width of not less than 3 metres:

Provided that the Minister of Conservation may approve the reduction of the width of the strip of land to not less than 3 metres if in his opinion the reduced width will be sufficient for reasonable access to the sea, lake, river, or stream.

(2) The Board may in its discretion determine that the provisions of the last preceding subsection shall not apply to any specified land comprised in a closed road or street which is disposed of under this Act.

(3) Where any unsurveyed farm land or pastoral land is disposed of on any tenure under this Act the Board may at any time before the approval by the Chief Surveyor of the plan of the survey of the land, and without liability to pay compensation, exclude from the disposition –

(a) Any land which may be required for a road:

(b) Any part of the land which is situated along the mean high-water mark of the sea or along the margin of any lake or along the bank of any river or stream, and which is required to be reserved under subsection (1) of this section:

(c) Any part of the land which is required for a reserve for any public purpose within the meaning of section 167 of this Act.

[(4) The renewal under this Act of any lease or licence granted under any former Land Act shall if the Board considers it to be equitable and in the public interest and so determines, be deemed to be a disposition of land for the purposes of subsection (1) of this section.]

[(5) Nothing in this section shall limit the provisions of section 60 of this Act in relation to any land reserved from sale or other disposition under this section.]

In subs. (1) (b) the expression "8 hectares" was substituted for the expression "20 acres" by s. 3(1) (b) of the Land Amendment Act 1972.

In subs. (1) (c) and the proviso thereto the words "of Conservation" were inserted by s. 65(1) of the Conservation Act 1987, and the expression "3 metres" was substituted for the expression "10 feet" by s. 3 (1) (c) of the Land Amendment Act 1972.

Subs. (4) was added by s. 2 of the Land Amendment Act 1960.

Subs. (5) was added by s. 2 of the Land Amendment Act 1962.

The Conservation Act

The Department of Conservation was formed in 1987 under the Conservation Act 1987. In that Act, a definition of marginal strip was inserted in s2, and s24 dealt with marginal strips. At this point in time s58 of the land Act 1948 was left untouched and continued to apply in an uneasy relationship with the new s24. The provisions of the Conservation Act relating to marginal strips were untidy and unsatisfactory but noteworthy in that s24(2) placed primary emphasis on conservation values, and made public access subordinate to conservation principles. There is little point in pursuing the provisions of the Conservation Act 1987 any further, for in 1990 section 24 was repealed by s15 of the Conservation Law Reform Act 1990 which in substitution inserted a new Part IVA in the Principal Act. Please refer to Appendix 10 (p65-81), where Part IVA is set out in full together with amendments.

Section 58 of the land Act 1948 is repealed by s37 and the Schedule to the Conservation Law Reform Act 1990.

Part IVA is highly prescriptive and cannot easily be summarised. The following points may highlight some key provisions.

  1. Unders24(3) "Every strip of land of any width that, immediately before the commencement of this section was reserved from sale or other disposition on any Crown land by or under this Act or any other Act, whether or not the strip was reserved for any specified purpose, shall be deemed to be reserved to the Crown as marginal strips of the same width". Legal but unformed roads are not included in the strips which are marginal strips under the Conservation Act. The maxim is "Once a road always a road". 21

  2. A very wide range of dispositions by the Crown trigger the marginal strip requirements. Note subsections (6), (7), (7A), (8) and (9) of s24.

  3. There is power to reduce the width of a marginal strip: s24A.

  4. There is power to increase the width of a marginal strip: s24AA.

  5. There is power to exempt a disposition from marginal strip requirements: s24B.

  6. The purposes for which marginal strips are held, are prescribed in s24(C). Among the six stated purposes is "To enable public access to any adjacent watercourses or bodies of water …". The emphasis is, however, on conservation values, although in fairness the access aspect is stated more strongly than it was in the original s24 of the Act of 1987.

The Conservation Act was enacted at a time when the Government wished to transfer the bulk of the commercially viable Crown estate to State-owned Enterprises with an intention that much of the land eventually should pass into private hands. It was clear that the transfer of the land could not proceed under existing rules relating to reserved land along water boundaries. Surveys of reserved land would have been required, and given the number of land parcels involved, surveys could not have been completed in a reasonable timeframe and at a reasonable cost. The concept of an ambulatory marginal strip not fixed by a survey, but noted on the title to the land was devised to allow the transfers to proceed. The concept was extended to all Crown alienations. Sections 24D and 24G have particular application. Provision was made in s24H for managers to be appointed to manage marginal strips and by s24H (4)(b) the manager of a marginal strip shall – "enable members of the public to have access along the strip".

15 Restrictions on grants of the foreshore were imposed from the earliest times. Section 2 of the Public Reserves Act 1854, the forerunner of s147 (above) placed Provincial Government under specified controls: Section 2 said:

2. It shall be lawful for the governor of the said Colony, with the advice of his Executive Council, to grant and dispose of any land reclaimed from the sea, and of any land below high-water mark in any harbour, arm, or creek of the sea, or in any navigable river or on the sea coast within the said Colony, either to the Superintendent of the Province and his successors, in or to which such land is situate or adjacent, or in such other manner to such other persons and upon such terms as shall be thought fit: Provided always that every such grant or disposition within any Province, other than to the Superintendent thereof, shall be made in pursuance of a joint recommendation by the Superintendent of such Province and of the Provincial Council thereof: Provided also that nothing here contained shall prejudice the rights of persons claiming water frontage.

16 Relevant sections of the Land Act 1877 and the Land Act 1885 are set out as Appendix 8

17 It is worth noting that at the time when the survey regulations under the Land Act 1885 were gazetted, regulations under The Land Transfer Act 1885 were also put in place effectively as part of the Land Act regulations. The Land Transfer Regulations (to apply to the survey and subdivision of private land) commenced at Reg 112 following on from Reg 111 of the Land Act regulations as a subset of the detailed Land Act regulations.

Regulation 112 says:

"The Regulations 1 to 85 of even date herewith under "The Land Act 1885" shall apply equally to surveys under "The Land Transfer Act 1885" whenever they are not inconsistent with these sales."

There is no rule of statutory construction which would make Reg 27 of the Land Act Regulations apply to surveys undertaken for the purposes of the Land Transfer Act. Legislation would be required to take reserves etc out of privately owned guaranteed land titles. Regulations could not achieve that result. It was not until 1946 that general legislation (The Land Subdivision in Counties Act 1946 ante) authorised the compulsory taking of water boundary reserves in private subdivisions.

18 Refer to Royal Instruction 1840 para 37 (Appendix 2 p50) and the section on Provincial Government (supra).

19 J B Condliffe D.Sc (Research Secretary, Institute of Pacific Relations, formerly Professor of Economics, Canterbury College, Christchurch, New Zealand; Sometime Sir Thomas Gresham Student, Gonville and Caius College, Cambridge) in his text "New Zealand in the Making" 1927, George Allen & Unwin Ltd, London in commenting on this table went on to say:

"The Crown lands sold for cash between 1856 and 1891 totalled 10.7 million acres. To this total should be added the area sold before 1856, approximately 3 million acres. In 1927 the total area made freehold by sale amounted to 17½ million acres, so that in the twenty-six years from 1891-1927 less than 4 million acres were sold in all the various ways in which sale was possible. Sales of Crown land, which in the five years 1873-7 averaged 607,000 acres annually, have dropped in the five years 1923-7 to 20,000 acres annually, supplemented by leases of various kinds (which may later be turned into freehold) to the annual extent of 105,000 acres. Very little of the land now being disposed of can be compared either in quality or in accessibility with the land sold in earlier periods. It is to be remembered also that very large areas, totalling five million acres in 1892, were disposed of by free grants in the earlier period, a system that has entirely ceased since the policy of conservation was introduced … a sense of proportion can be maintained only when it is remembered that the overwhelming bulk of the best land of New Zealand had passed into private ownership before 1892."

20        (i) Public Works Act 1981: s121

(ii) Public Works Act 1928: s110

(iii) Public Works Act 1908: s101

(iv) Public Works Act 1905: s101

(v) Public Works Act 1894: s100

(vi) Public Works Act 1876: s79

21 Attorney-General and Southland County Council v Millar XXVI (1906) NZLR 348

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PO Box 2526, Wellington

Phone: +64 894 0703
Fax: +64 4 894 0745

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