Offer special land - foreshore, seabed, riverbed or lakebed - to the Crown

If you are an overseas buyer applying to invest in sensitive land, your application may need to include the details of any special land and a notice of intention to offer the special land to the Crown.

This page gives you (and the vendor) information on the application requirements for special land and the special land offer process that could occur in a sensitive land investment application.

What is special land and how does the ‘special land offer to the Crown’ come about? 

Special land is foreshore, seabed, riverbed or lakebed as defined in the Overseas Investment Act 2005.

Two common instances of special land that occur are where there is a riverbed (that meets the definition) which is either:

•    fully enclosed within a lot in a Land Transfer Act title, or

•    a movable boundary to a lot in a Land Transfer Act title to which the ad medium filum aquae centreline presumption applies.

To invest in sensitive land that includes special land, you may be required to offer the special land to the Crown. The requirement to offer the special land is set out:

•    in section 16A(4)(f) (Special test relating to forestry activities) if you are making an application under the special forestry test or

•    in section 17(2)(f) of the Overseas Investment Act (Factors for assessing benefit of overseas investments in sensitive land) if you are making an application under the benefit to New Zealand test 

More information on sensitive land

The special land information and notice to be included in your application

If you’re wanting to invest in sensitive land that includes special land then you must also include the following documents with your application:

•    A sensitive land certificate that includes information about the special land; and

•    A notice of intention to offer the special land signed by you and the vendor.

Choose a special land expert to provide sensitive land certificate

Whenever land is involved in an application, we require a sensitive land certificate and this certificate has a section for special land information (if any).  Working out whether the sensitive land you would like to invest in includes special land is a complex exercise. The sensitive land certificate should therefore be provided by an experienced land professional, such as:

•    a lawyer; or

•    a licensed cadastral surveyor; or

•    a LINZ-accredited Crown property service provider,

who is practiced in providing sensitive land certificates and also in identifying the special land included in sensitive land.

More information about the expert advice you might need in your application 

Include full special land information in the sensitive land certificate

The sensitive land certificate must clearly identify and describe all the special land (if any) including:

•    the address, record of title references and legal descriptions of the sensitive land that includes the special land;

•    the type of special land, its name, its location on a map and a clear description of why it is special land;

•    record of title searches for the sensitive land and any previous surveys of the special land; and

•    if the sensitive land includes waterbodies that are identified to not meet the definition of special land, then there must be an explanation as to why that waterbody is not special land.

Giving full information about special land will help ensure your application is processed efficiently.  

Sensitive land certificate

Notice of intention to offer special land

Regulation 14 sets out that a notice of intention to offer the special land must be made by the owner of the relevant sensitive land. This means that the notice of intention to offer must be signed by the vendor at the time the application is made, as they are the owner of the land, as well as you, as applicant.

The notice of intention to offer must comply with Regulation 14.  

The template - notice of intention to offer - assumes that the special land is being offered at nil financial consideration but can be updated for your circumstances so long as it continues to comply with Regulation 14.

What takes place during the special land offer process?

Assessing the special land as part of your application

We will investigate and progress the special land offer at the same time as your application is assessed under the special forestry test or benefit to New Zealand test.  For a decision to be made on your application, the special land offer process will need to be at the stage where either:
•    You send back to us special land agreement(s) signed by you and the vendor, that we can submit to the Minister of Finance and the Minister for Land Information with our assessment report on the special land; or
•    The Ministers decide to waive the right to acquire the special land under Regulation 15.

If your application includes special land, any consent granted under the special forestry test or benefit to New Zealand test will likely also include conditions about complying with the special land offer process.  

If your application is for a standing consent in respect of future potential sensitive land acquisitions under the special forestry test or benefit to New Zealand test, then any standing consent granted will include conditions that require you:
•    to comply with your obligations under this special land offer process (with some changes as the application will have already been granted),
•    in respect of each transaction involving sensitive land, 
•    prior to settlement of each transaction.

Consent conditions

How to accelerate the special land offer process

Applications which include special land generally have an increased timeframe.  If you and the vendor:
•    intend to offer the special land to the Crown for nil financial consideration; and
•    can negotiate and enter into special land agreement(s) largely in our template forms,

then some of the steps are accelerated and the special land offer process may not significantly increase the timeframe of the assessment of your application.  

You may also help with the timeframe of the special land offer process by making sure the sensitive land certificate has the full information required and the template notice of intention to offer is used in your application.

Steps in the special land offer process

An overview of the special land offer process (PDF 96KB)

Signing special land agreements 

If you submit a notice of intention to offer the special land for nil financial consideration, we will work with you to obtain special land agreement(s) (outlining the terms on which the special land could be acquired by the Crown) to be signed by you and the vendor.  

We prepare the draft special land agreement(s) for each instance and type of special land included in the sensitive land.  Template examples are under Related links.

If you and the vendor intend to offer the special land at market value then the negotiation of the special land agreement(s) may not happen until: after the Ministers have decided not to waive the right to acquire the special land; or after a survey and valuation process under the Regulations has been completed. 

Deferral of negotiation of the special land agreements also potentially occurs if you request the Crown to waive the right to acquire the special land.  If the Ministers decide not to waive the right to acquire the special land, then negotiation may not happen until after a survey and valuation process under the Regulations has been completed.

Our assessment report to Ministers: if special land agreement(s) signed

If special land agreement(s) in the form prepared by us are negotiated, signed by you and the vendor and then sent back to us, the special land offer process is at the stage where the application can be decided.  

We will request the Ministers’ decision on the special land which may occur at the same time as, or after, the decision on your application under the special forestry test or benefit to New Zealand test.  We will provide Ministers with a report which contains our assessment as to whether we consider it is in the public interest to acquire the special land.  The decision to accept or waive the special land offer is ultimately a Ministerial decision.  

Our assessment report to Ministers: if offer special land at market value or request Ministers waive right to acquire

In the notice of intention to offer you may intend to only offer the special land at market value.  Or as part of your application, you may request that the Ministers waive the right to acquire the special land.  Or you might not reach an agreement on the terms on which the special land could be acquired by the Crown and may not therefore sign special land agreement(s). 

In these situations, we will request the Ministers’ decision on the special land at the same time as, or before, your application under the special forestry test or benefit to New Zealand test is provided to the decision makers for a decision.  We will provide Ministers with a report which contains our assessment about the special land and as above, the decision whether to waive the right to acquire special land or not is a Ministerial decision.  

If the Ministers elect to waive the right to acquire the special land, your application under the special forestry test or benefit to New Zealand test can be decided.  

However, should the Ministers elect not to waive the right to acquire the special land, your application cannot progress until the special land process (which may include considering access arrangements, consultation, survey and valuation under the Regulations) is completed and the special land agreement(s) are negotiated, signed by the vendor and applicant, and sent back to us. 

The end of the special land offer process

The special land offer process comes to an end for each instance and type of special land included in the sensitive land once either:
•    the Ministers decide to accept an offer of special land, that special land agreement in principle is signed on behalf of the Crown, and then that special land interest is subsequently secured; or
•    the Ministers decide to waive the right to acquire the special land or decide to waive an offer of special land (that special land agreement will not be signed on behalf of the Crown);
•    you do not acquire the sensitive land which includes the special land (i.e. the transaction does not proceed); or
•    your application under the special forestry test or benefit to New Zealand test is declined or withdrawn.

Securing the special land when an offer is accepted on behalf of the Crown

If we give you a notice that an offer of special land in a special land agreement is accepted, we will then work with you to secure the special land interest in line with the provisions in the relevant special land agreement.


Further information
The current Ministerial Directive Letter (PDF 467KB) contains the Government’s general policy approach to the acquisition of special land.

Disclaimer
This website provides general information only. The OIO and LINZ do not assume any responsibility for giving legal or other professional advice and disclaim any liability arising from the use of the information. If you require legal or other expert advice you should seek assistance from a professional adviser.

 

Last Updated: 21 February 2020