Note: this guideline is issued by the Surveyor-General under section 7(1)(ga) of the Cadastral Survey Act 2002 about the Rules for Cadastral Survey 2010 and is not legally binding.

The following information relates to determining the extent of land that is to become common marine and coastal area under the Marine and Coastal Area (Takutai Moana) Act 2011 (MACAA) where land is being subdivided.

The MACAA made significant changes to s 237A of the Resource Management Act 1991 (RMA).  Section 237A(1)(b) requires the CSD to show any part of the land that is in the coastal marine area (land below MHWS) as part of the common marine and coastal area.

Many existing parcels extend below MHWS to MHWM, and in theory it would seem to be a relatively simple task to identify the land between MHWS and MHWM. However, water boundaries are movable and often they are no longer in the same physical position as the survey which previously recorded them. Also some early surveys may not have accurately recorded the location of these boundaries.  These factors have introduced variations in how parcels comprising of common marine and coastal area are to be defined.

This article explains the following variations:

Land owned by the Crown or a local authority is treated slightly differently, even if held under the Land Transfer Act 2017. Refer to MACAA where Crown or local authority owns land.

Where MHWS coincides with MHWM

Where an existing primary parcel with a water boundary at MHWM is subdivided, and the current MHWM and MHWS are coincident, then no land becomes part of the common marine and coastal area. An example of this is where the water boundary is a cliff face.

In this case, the CSD diagrams should show along the water boundary the notation 'MHWM/MHWS'.

Note: Rules 9.6.7(c) and 10.4.5(c) require the legal boundary to be described and s 237A RMA requires the CSD to show any part of the allotment that is in the coastal marine area as part of the common marine and coastal area. This notation is one way of complying with s 237A or demonstrating that s 237A is not applicable whilst complying with the Rules.

For specific rule requirements see MACCA and land becoming common marine and coastal area under s 237A of the RMA.

Diagram showing where MHWM and MHWS coincide
Figure 1:Where MHWM and MHWS coincide

Where current MHWS is inland from old MHWM

Where an existing primary parcel with a water boundary at MHWM is subdivided and the current MHWS is inland from this boundary, then the land in the parcel below MHWS becomes part of the common marine and coastal area.

In this case, the CSD diagrams should depict the:

  • MHWS boundary and the MHWM water boundary, and
  • land between MHWS and MHWM as a new primary parcel with an appellation (eg Lot 3), area, and an annotation 'common marine and coastal area'.

Note: s 237A RMA requires the CSD to show any part of the allotment that is in the coastal marine area as part of the common marine and coastal area. This notation, in conjunction with the new primary parcel, is one way of complying with s 237A.

For specific rule requirements see MACCA and land becoming common marine and coastal area under s 237A of the RMA.

Diagram showing where MHWS is inland of MHWM
Figure 2: Where MHWS is inland of MHWM

Where current MHWM is inland from old MHWM because of erosion

If, because of erosion, the current MHWM is further inland than the existing primary parcel boundary of MHWM, the surveyor may exercise their judgment and show either:

  • all of the land between the old MHWM and current MHWS as part of the common marine and coastal area, or
  • land between the MHWM title boundary and current MHWM as 'erosion (common marine and coastal area)' and the land between the current MHWM and the current MHWS in a new primary parcel as 'common marine and coastal area'.

Note: s 237A RMA requires the CSD to show any part of the allotment that is in the coastal marine area as part of the common marine and coastal area. These notations, in conjunction with the new primary parcel, are one way of complying with s 237A.

For specific rule requirements see MACCA and land becoming common marine and coastal area under s 237A of the RMA.

Diagram showing where erosion affects MHWM
Figure 3: Where erosion affects MHWM

Where current MHWS is within an inland parcel

The requirements of s 237A(1)(b) of the RMA apply to parcels with fixed boundaries as well as parcels that do not adjoin the sea.

Where an existing primary parcel is subdivided any land below MHWS becomes part of the common marine and coastal area. 

In this case, the CSD diagrams should depict:

  • the new MHWS boundary, and
  • the land between MHWS and the fixed boundary as a new primary parcel with an appellation, area and the annotation 'common marine and coastal area'.

Note: s237A RMA requires the CSD to show any part of the allotment that is in the coastal marine area as part of the common marine and coastal area. This notation, in conjunction with the new primary parcel, is one way of complying with s 237A.

For specific rule requirements see MACCA and land becoming common marine and coastal area under s 237A of the RMA.

Diagram showing where the parcel does not adjoin the sea
Figure 4: Where the parcel does not adjoin the sea

Where current MHWS is seaward of old MHWM because of accretion or avulsion

Where an existing primary parcel with a water boundary at MHWM is subdivided and the current MHWS is seaward from this parcel boundary because of accretion or avulsion, then one of the following two scenarios will apply.

In the case of avulsion or if not making a claim for accretion, there is no land in the parcel to become part of the common marine and coastal area and the old boundary of MHWM is retained ('defined by adoption' or 'accepted' as applicable and in some cases of avulsion, right lined in terms of rule 6.7). The CSD diagrams should depict:

  • the annotation 'MHWM' along the water boundary, and
  • enough information so that it is obvious that the MHWM title boundary is not coincident with MHWS and that MHWS is further out to sea.

Two simple methods of providing this information as part of the CSD diagram are by including an attached diagram or by adding an annotation to the diagram eg 'Current MHWS is approximately 20m seaward of the MHWM boundary'.

This is illustrated in the left hand diagram of Figure 5 below.

Note: rules 9.6.7(c) and 10.4.5(c) require the legal boundary to be described and s 237A RMA requires the CSD to show any part of the allotment that is in the coastal marine area as part of the common marine and coastal area. This notation and the additional information are one way of complying with s 237A or demonstrating that s 237A is not applicable whilst complying with the Rules.

If a claim is being made for accretion, the claim is to be made to the current MHWM and the land between current MHWM and current MHWS is to be identified as land that will become part of the common marine and coastal area. This is illustrated in the right hand diagram of Figure 5 below. 

For specific rule requirements see MACCA and land becoming common marine and coastal area under s 237A of the RMA.

Diagram showing where there is accretion
Figure 5: Where there is accretion

Where current MHWS is seaward of earlier poorly-defined MHWM

Where an existing parcel is being subdivided and the current MHWS appears to be seaward of the existing MHWM parcel boundary because the earlier MHWM survey fix was inaccurate, then there is land in the title to become part of the common marine and coastal area.

In this case, the CSD diagrams should depict:

  • the new MHWS boundary, and
  • a 'better fix' of MHWM seaward of the new MHWS.  In theory, this boundary should reflect MHWM at the time of the original survey. However, given this is a disappearing boundary, the 'defined by survey' current MHWM boundary line may be, in terms of rule 3.4, an approximation.  The old inaccurate MHWM is not shown, and 
  • the land between the current MHWS and the seaward new MHWM as a new primary parcel with an appellation, area and annotation 'common marine and coastal area'.

Notes:

  • s 237A RMA requires the CSD to show any part of the allotment that is in the coastal marine area as part of the common marine and coastal area. This notation, in conjunction with the new primary parcel, is one way of complying with s 237A,
  • A 'better fix' implies that the historic MHWM boundary was not an accurate portrayal of the boundary as it was on the ground at the time of the original survey and that the later better fix is an accurate portrayal of that same boundary at that earlier time. In this case the later 'better fix' replaces the earlier fix and the earlier fix is not shown in the CSD diagrams. Evidence to support the use of the 'better fix' must be recorded in the survey report

For specific rule requirements see MACCA and land becoming common marine and coastal area under s 237A of the RMA.

Diagram showing where MHWS is seaward because of poor historic fix of MHWM
Figure 6: Where MHWS is seaward because of poor historic fix of MHWM

Where land is not being subdivided

Where a parcel of 'specified freehold land' is being defined by a survey but not subdivided in terms of the RMA, there is no requirement to identify land below MHWS as part of the common marine and coastal area. In this case, the parcel boundary, if defined in the title as being MHWM, may remain at MHWM.

Last Updated: 12 November 2018
Authority: Surveyor-General - Section 7(1)(ga) of the Cadastral Survey Act 2002
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