Part 4A (Marginal Strips) of the Conservation Act 1987 (introduced by the Conservation Law Reform Act 1990) supersedes the Land Act 1948.
When Crown land that adjoined a water body was being sold or otherwise disposed of, s58 of the Land Act required a strip of land not less than 20 metres in width running parallel to that water body be reserved from sale or disposal. Part 4A of the Conservation Act now uses the term 'marginal strips' and has a similar provision to the replaced s58 of the Land Act.
When Crown land adjacent to foreshore, a lake, a river or stream greater than 3 metres wide is sold or otherwise disposed of, a strip of land no less than 20 metres wide is deemed to be reserved. Where a marginal strip is reserved following a sale or other disposal, this is required to be recorded on the title of the subject land. All strips previously created under s58 of the Land Act were deemed to become marginal strips under the Conservation Act.
There is a key difference between the strips created under s58 of the Land Act and marginal strips created under the Conservation Act. Those created under the Land Act do not move with any change of shape or alteration of the course of the abutting water body, whereas those created under the Conservation Act do move.
Where Part 4A of the Conservation Act applies, land sold by the Crown will generally have a memorial on the title deeming the first 20 metres of this property (where it abuts a waterway) to be reserved from sale. Therefore, the owner of an ex-Crown property which is located adjacent to a waterway, would effectively not own the first 20 metres of that property. There is a process for applying to the Department of Conservation for management rights over this strip. (See Part 4A of the Conservation Act 1987 for more information).
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As a general rule, when reviewing an application that requires resource consent, consider the marginal strips that are noted on the title.
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Where land is subject to Part 4A of the Conservation Act 1987, you need to check to see if works are occurring within 20 metres of the mean high-water mark (or near the edge of a lake or river). If they are, the applicant will need to obtain rights to use this land from the Department of Conservation. This is a separate process from determining who might be adversely affected.
