Fresh or seawater areas are any part of the relevant land that is marine or coastal area, the bed of a lake, or the bed of a river, and a reference to a fresh or seawater area is a reference to the whole or any part of that area.
’Marine and coastal area’, ‘lake’, and ‘river’ are defined in section 6 of the Overseas Investment Act 2005.
Buying land that includes fresh or seawater areas (FSA)
For applications under the benefit to New Zealand pathway or the forestry pathway, if you are applying for a consent to buy sensitive land and the land is or includes a fresh or seawater interest, you must notify the Crown. The Crown has the right to acquire the fresh or seawater interest unless a decision is made not to. This applies when the land or pastoral lease is acquired, but doesn’t apply if the consent relates to a lease or security in a company with an FSA interest.
Your notification is included in your application for consent. In addition to notifying that the land you wish to acquire contains or includes a fresh or seawater interest, you must provide the following details in the sensitive land certificate.
- Legal description of the land: records of title, size, location, and transaction history of the parcel of the relevant land which includes FSA.
- Description of extent and type of FSA, include any available plans or aerial photographs of each fresh and seawater area.
- Details of any existing structures, and any third-party interests in those structures, or in that parcel of land.
- Any biosecurity issues that are specified in a relevant regional pest management plan in force under the Biosecurity Act 1993.
- Any Treaty of Waitangi claim (as defined in section 2 of the Treaty of Waitangi Act 1975), whether historical or other, made about all or any of that parcel of land.
- Whether the parcel of land contains an area or areas subject to any, or all, of the following:
- Conservation Act 1987
- Heritage New Zealand Pouhere Taonga Act 2014
- Marine and Coastal Area (Takutai Moana) Act 2011
- Reserves Act 1977.
- Whether the parcel of land contains an area or areas that are contaminated land (as defined in section 2(1) of the Resource Management Act 1991).
- Whether the parcel of land contains an area or areas that is, or likely to be, subject to one or more natural hazards (as defined in section 71(1) of the Building Act 2004).
What happens once your application for consent is granted
A record of the Crown’s right to acquire the FSA interest must be placed on the title at settlement. This is completed by your lawyer who will lodge a water areas acquisition notice (WAAN) at the same time the transfer of the property is completed. The WAAN records the Crown’s right to acquire the land and the Crown may acquire it at any point within the subsequent 10 years.
A template WAAN form can be downloaded here:
The following steps take place after Toitū Te Whenua has granted consent for the purchase.
- Your lawyer will complete the WAAN template.
- Your lawyer will then send the WAAN to Toitū Te Whenua at FSAapplications@linz.govt.nz at least 15 working days before settlement.
- Toitū Te Whenua will have the WAAN signed on behalf of the Crown and then return the completed signed form by email to your lawyer at least 5 working days before settlement.
- Your lawyer will lodge the WAAN by e-dealing using Landonline on settlement. (The WAAN must follow the transfer, but be lodged with Landonline code “WAN” before any other interests being registered, such as a mortgage.)
- Your lawyer will be advised when the e-dealing has been processed and the WAAN registered on your title. (If there are any issues with the WAAN or other documents in the e-dealing that prevent it from being registered, Toitū Te Whenua will notify your lawyer so that any changes necessary can be made, before your lawyer resubmits it using Landonline.)
How compensation is decided
There is provision to claim compensation for material losses due to the Crown’s acquisition of the FSA. These are losses that stem primarily from any decrease in enjoyment or use of the FSA or surrounding land.
- For FSA owners, compensation will be decided with a formula based on the average rateable value of the land in the vicinity of the FSA and a ‘loss factor’ to reflect the FSA owner’s loss.
- For third parties, a negotiation process will be used to determine compensation.
Disputes about compensation can be initiated by either party and will be managed through mediation. The mediation costs will be shared equally between all participating parties.
What happens after the Crown decides to acquire the FSA
In some instances, the land will be surveyed before being vested in the Crown with new titles issued for the remaining land.
If a survey is required, the Crown is responsible for meeting the cost of any survey required to issue titles.