- The Land Subdivision in Counties Act 1946
- Municipalities
- Counties Amendment Act 1961
- The Local Government Act 1974
- The Resource Management Act 1991
Reserves Along Privately-Owned Water Boundaries
If the principle of reservation of a strip along water boundaries had been applied from the inception of the Colony, there would be no need for the development of water margin legislation relating to private land. Whilst extensive reservations were made as road along the seacoast, some lakes and along major flowing waterways in the period 1840-1914, inconsistencies, possibly a failure of knowledge, and an incomplete commitment, have created a large number of privately owned riparian titles.
The Land Subdivision in Counties Act 1946
Rural subdivision (i.e. outside of Cities and Boroughs) was controlled under the Land Acts 22 until the Land Subdivision in Counties Act 1946 came into force on 1 January 1947. Land subdivision laws initially related to subdivisions of Crown land, and the language of the early sections was precise "There shall be reserved from sale or other disposition …" The strip was reserved from sale – it was not, however, a public reserve. The Land Subdivision in Counties Act applied to privately owned land. Section 11 of the Land Subdivision in Counties Act stated "On every scheme plan submitted under the foregoing provisions of this Act there shall be set aside as reserved for public purposes a strip of land not less than sixty-six feet in width along the mean high-water mark of the sea …" etc. This land by virtue of s13(2) was vested in the Crown as a reserve subject to the Reserves and Domains Act 1953. The legal status of the new type of reserves (as an "official" reserve dedicated to a public purpose) is quite different from the land reserved from sale on the sale of Crown land.
The Land Subdivision in Counties Act required a scheme plan to be approved by the Minister of Lands when land was subdivided into allotments of less than 10 acres. The Act did not apply to the creation of allotments larger than ten acres, which could be established as of right, without any consent of either the county or the Minister. Marginal strips were therefore required to be reserved along water boundaries of allotments under 10 acres and not otherwise. The marginal strip requirements did not apply to Maori land (s11(1) second proviso).
Section 11 is reproduced as Appendix 11.
Municipalities
Subdivisional legalisation applying in cities and boroughs, up until The Local Government Amendment Act 1978 came into effect on 1 April 1979, did not compel private subdividers to provide reserves along water bound-aries. Reserves along water were optional. The sections applying to sub-division in the Municipal Corporations Acts did not specify any water boundary requirements: s335 Municipal Corporations Act 1920; s332 Municipal Corporations Act 1933; ss350-353 Municipal Corporations Act 1954. The Local Government Act 1974 was the first subdivisional legislation to apply compulsory water margin requirements in Municipalities (see below).
Counties Amendment Act 1961
The Counties Amendment Act 1961 phased out the control of the Minister of Lands over subdivisions in Counties by repealing the Land Subdivision in Counties Act 1946. Section 29 of the Counties Amendment replaced s11 of the Land Subdivision Act in respect of reserves along water margins. In 1964, the Counties Amendment Act inserted a new section (1A) in section 29, to restrict the creation of water boundary reserves to allotments of less than 10 acres in area. In 1974, the Government decided to repeal section 1A to speed the process of providing access along water. In other words, the reserves legislation was to apply to all allotments in a subdivision regardless of size, providing the intersecting or adjoining river or stream had an average width of more than five metres. If the waterway had an average width of between three and five metres, reserves were to be restricted to allotments of less than four hectares. Section 28 of the Counties Amendment Act 1974 which effected the change in the law is included along with s29 of the Counties Amendment Act 1961 in Appendix 12 (p83).
The decision to apply the reserves requirement to all allotments regardless of size created consternation in Parliament, and great animosity in the rural community. Because of the requirement that the full length of the reserved strip be surveyed, the cost of rural subdivisions of larger farms was greatly increased. The exemption from reserve requirements for allotments of over 4 hectares was reinstated in section 4(3) of the Counties Amendment Act 1977, and maintained in s289(3) of the Local Government Act 1974 (as inserted by the Local Government Amendment Act 1978).
Section 29(4) empowered the Minister of Lands to exempt from reserve requirements the banks of any specified river or stream.
The Local Government Act 1974
The Local Government Amendment Act 1978 inserted a new Part XX of the Local Government Act 1974 which repealed the subdivisional parts of the Counties Amendment Act 1961 and the Municipal Corporations Act 1954. Thenceforth counties, cities and boroughs were to apply identical legislation.
Section 289 of the Local Government Act 1974 (reproduced as Appendix 13, p86) provides a code for reserves along water. Originally these reserves were under subsection (1) to be local purpose reserves, subject to the Reserves Act 1977 "… for the purpose of providing access to the sea, lake river or stream as the case may be and to protect the environment …" Later, by the Reserves Amendment Act 1979, these reserves become esplanade reserves.
The exemption for allotments over 4 hectares was reaffirmed in s289(3), but in cases where an owner voluntarily provides a marginal strip along a water boundary where the allotment does have an area of over four hectares, under the authority of s290, compensation may be paid to the owner.
Section 289 built on the principles established in the Land Subdivision in Counties Act 1946 and the Counties Amendment Act 1961. In retrospect, it established a holding pattern rather than new law. That was to come in the Resource Management Act 1991, where a radical review produced new concepts. The focus is shifting from ownership of strips (whether by the Crown or the local authority), to the provision of access.
The Resource Management Act 1991
This is a highly prescriptive piece of legislation which is better considered by a direct reading of its provisions. The Resource Management Act commences in resounding terms. Section 6 sets the stage:
6. Matters of national importance – In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide for the following matters of national importance:
(a) The preservation of the natural character of the coastal environment (includeing the coastal marine area), wetlands, and lakes and rivers and their margins, and the protection of them from inappropriate subdivision, use, and development:
(b) The protection of outstanding natural features and landscapes from inappropriate subdivision, use, and development:
(c) The protection of areas of significant indigenous vegetation and significant habitats of indigenous fauna:
(d) The maintenance and enhancement of public access to and along the coastal marine area, lakes, and rivers:
(e) The relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga.
The provisions dealing with access inserted in the Act as originally enacted were found to be wanting, and section 124 of the Resource Management Act 1993 repealed sections 229 to 237, and inserted substitute sections 229 to 237 and new sections 237A to H. These sections are reproduced as Appendix 14.
The devolution of responsibilities in recent years by central government to local government in the context of water margin provisions, has included powers to create, waive or reduce esplanade reserves along water margins by way of district plan rules. Formerly, waivers or reductions had been a responsibility of the Minister of Conservation, in a line of responsibility that reaches back to the Land Subdivision in Counties Act 1946, and had previously been a function of the Minister of Lands before counties were permitted to approve subdivisions. The breadth of discretion provided in s230 – Requirements for esplanade reserves or esplanade strips – could lead to some uncertainty as to when an esplanade reserve a strip will be required. The district plan review process would, however, provide the Department of Conservation or the citizen with the opportunity to make submissions if reserves are not intended for creation in places where they may consider a reservation to be appropriate.
The contention which surrounds the creation of reserves is illustrated yet again in the Resource Management Act 1991 as originally enacted. Although the debate which surrounded the imposition of reserve requirements in 1974, to affect lots of over four hectares and the repeal of that requirement a few years later, was comparatively recent in legislative terms, section 230(1)(a) enacted in 1991 applied the esplanade reserve provisions to any land being subdivided. Section 230(3) as enacted by the Resource Management Amendment Act 1993, restored the requirement that a reservation may be imposed on subdivision against an allotment of under 4 hectares. The result is of course, a slowing of the establishment of continuous access along water margins.
Section 229 in the form enacted in 1993 details five conservation principles, and an access right for the public, and a recreational use right, as the basis of establishing either esplanade reserves or esplanade strips. An esplanade reserve by s231(1) shall be set aside as a local purpose reserve for esplanade purposes under the Reserves Act 1977 and shall vest in and be administered by the territorial authority. Section 23 of the Reserves Act 1977 says:
… nothing in this paragraph shall authorise the doing of anything with respect to any esplanade reserve … that would impede the right of the public freely to pass and repass over the reserve on foot, unless the administering body determines that access should be prohibited or restricted to preserve the stability of the land or the biological values of the reserve.
The Resource Management Act in making provision for esplanade reserves carries forward existing law, which makes esplanade reserves public purpose reserves subject to the Reserves Act. There are special provisions applicable. For example section 237D authorises transfers of esplanade reserves to the Crown or regional council.
Whilst the reserve concept is an old one the Resource Management Act provides for new means of securing access along and to water. Section 232 authorises the creation of esplanade strips of a width specified in a rule in a district plan. An instrument made between the territorial authority and the subdividing owner may be registered under the Land Transfer Act 1952. Under s233 when a water boundary moves "a new esplanade strip coinciding with such alteration shall be deemed to have been created simultaneously with each and every such alteration within the allotment". Esplanade strips may be varied or cancelled: s234. Esplanade strips may be created by agreement: s235 (amended by Resource Management Amendment Act 2003). Such strips need not be surveyed: s237.
Access strips may be created by agreement between the registered proprietor and the local authority in the nature of an easement over the land: s237B. Access may thus be provided over land, to link with legal access along rural coastlines and along rivers and streams. The instrument may be registered under the Land Transfer Act.
Compensation must be paid under the Resource Management Act for the extra width of esplanade reserves or esplanade strips beyond 20 metres width, from a subdivision with lots smaller than 4 hectares. Where the lots are larger than 4 hectares, the council must negotiate compensation with the registered proprietor if it wants reserves or strips. These provisions greatly enhance the opportunities for the local authority to secure improved and continuous practical access for the public or to protect conservation areas.
22 This was a very limited form of control applying to Towns in
rural areas. See for example s16 of the Land Act 1924. In the context of
reserves along water there would be very limited application and these
subdivisions are not included in this discussion. For the sake of completeness
the relevant sections are summarised.
Contact for Enquiries
Mark Neeson
Manager, Land and Water Policy
Pastoral House
25 The Terrace
PO Box 2526, Wellington
Phone: +64 894 0703
Fax: +64 4 894 0745
