By Adrien Turnage
24 April 2023
In general, where land adjoins a river the landowner owns all of the land up to the centre line of the river. However, where Crown land that adjoins the foreshore, a lake, or a river or stream that has an average width of 3 metres or more is sold or disposed of by the Crown, a strip of land 20 metres wide extending along the landward margin of the foreshore, or the bed of the lake, river or stream is reserved to the Crown. This means that if you own former Crown land that adjoins a river then you may not own the first 20 metres of the land from the bed of the river.
The 20 metre wide marginal strip remains in Crown ownership and is administered by the Department of Conservation. Marginal strips serve particular conservation purposes relating to land along the margins of rivers and to water quality and enable public access to the marginal strip and the river for recreation purposes.
Since 1990 marginal strips have been created under part 4A of the Conservation Act 1987 and are deemed to be created automatically on disposal of Crown land. Prior to 1990 marginal strips were created under section 58 of the Land Act 1948. If a marginal strip has been reserved from the land, then the title to the land must record that the title is subject to the Conservation Act 1987 (or earlier legislation).
To qualify for a marginal strip, the bed of a river must be more than 3 metres in width. A river bed is defined by the Conservation Act as the space of land which the waters of the river cover at its fullest flow without overtopping the banks. The definition of a river includes streams and means any continually or intermittently flowing body of fresh water. In some places rivers may have been channelled through pipes and drains and may have been modified by being straightened.
The river bed for the purposes of the Conservation Act can therefore be wider than the area actually covered by water at a particular time and the river does not need to be continuously or steadily flowing. The width of the river bed can also be averaged such that a river can qualify for a marginal strip despite the fact that some sections of the bed may be less than 3 metres wide.
The location of a marginal strip created under the Conservation Act can move over time if the physical bed of the river adjoining the land moves. Where for any reason the course of a river is altered and the alteration affects an existing marginal strip created under the Conservation Act, a new marginal strip is deemed to be reserved from the new location of the river bed. Older marginal strips created under section 58 of the Land Act 1948 are fixed and do not move with any alteration of the course of the adjoining river or stream.
Land can also be added to the adjoining land due to accretion where water recedes gradually from the land or where water gradually deposits sand, shingle and silt, or by avulsion where the change in the water boundary occurs suddenly as when a river breaks its banks and forms a new channel. Likewise, land can be lost from the adjacent land due to erosion where water gradually encroaches on the land or washes away land from the river bank.
Sometimes it can be difficult to determine where the land stops and a river begins, and where the boundary between the marginal strip and your adjacent land actually lies. Prior to 2007 marginal strips were not required to be surveyed or otherwise noted on a survey plan and there may be no record of the location of the marginal strip or the river that it applies to. Marginal strips created after 2007 will have been surveyed and the location of the marginal strip will appear on the title plan for the land.
The existence of a marginal strip adjoining your land could potentially impact future development of the land and may create a right of public access to the adjoining river. Your solicitor can check if the title to your property is subject to part 4A of the Conservation Act 1987 or section 58 of the Land Act 1948 and whether the location of any marginal strip is shown on the title plan.
If you would like more in-depth advice or further information about the content of this article, please get in touch with the team at Pitt & Moore on 03 5488349, and ask to speak with Adrien Turnage, Associate.
Disclaimer: The information contained in this publication is of a general nature and is not intended as legal advice. It is important that you seek legal advice that is specific to your circumstances.