Plain language law

New Zealand law explained for everyone

Overseas Investment Act 2005

Schedule 5: Fresh or seawater areas

You could also call this:

"Rules for the Government to Buy Water Areas from Owners"

Illustration for Overseas Investment Act 2005

The Overseas Investment Act 2005 has a schedule about fresh or seawater areas. You need to know what this schedule means. The Crown can acquire fresh or seawater interests from owners. This means the Crown can buy the rights to use the water areas from the people who own them. The schedule explains how this acquisition works, including how the Crown gives notice to the owners and how the owners can claim compensation.

The Crown must follow certain rules when acquiring fresh or seawater interests. For example, the Crown must register a notice with the Registrar and the owner must be given a chance to claim compensation. If the owner's interest is not registered, the Crown can still acquire it, but the process is a bit different. The schedule also talks about how the acquisition affects other interests in the land, like mortgages or leases.

The Governor-General can make regulations about the acquisition of fresh or seawater areas. These regulations can cover things like the terms of the acquisition, the process for claiming compensation, and the manner in which things must be done. You can find more information about these regulations in the Legislation Act 2019.

This text is automatically generated. It might be out of date or be missing some parts. Find out more about how we do this.

This page was last updated on

View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=LMS623503.

Topics:
Housing and property > Land useBusiness > Industry rulesImmigration and citizenship > Border controlEnvironment and resources > Conservation
Previous

Schedule 4: Standing consents, or

"Rules for automatic approval to invest in New Zealand's sensitive land"

5Fresh or seawater areas Empowered by s 25D

1Application and interpretation

1Which owners of land this schedule applies to

  1. This schedule gives the Crown the right to acquire fresh or seawater interests from the owners of the fresh or seawater interests.

  2. In this schedule, owner, in relation to a fresh or seawater interest, means—

    Overseas person and their associate

  3. the relevant overseas person that acquires the fresh or seawater interest as a result of an overseas investment in sensitive land; and
    1. any owner (as defined in section 5(1) of the Land Transfer Act 2017) of the fresh or seawater interest that is an associate of the relevant overseas person; and

        1. Other owners, but only if a notice is registered or covenant is entered into

      1. if a water areas acquisition notice has been registered under clause 12 or 18 in relation to the fresh or seawater interest, any other owner (as defined in section 5(1) of the Land Transfer Act 2017) of that fresh or seawater interest; and
        1. if a water areas acquisition notice has been provided under clause 19, any owner (as defined in section 5(1) of the Land Transfer Act 2017) of that fresh or seawater interest that has notice of the Crown’s right to acquire the fresh or seawater interest.

          Notes
          • Schedule 5 clause 1: inserted, on , by section 36 of the Overseas Investment Amendment Act 2021 (2021 No 17).

          2Interpretation

          1. In this schedule,—

            fresh or seawater area means 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

              fresh or seawater interest means the freehold estate or pastoral lease interest that relates to the fresh or seawater area

                owner has the meaning set out in clause 1(2)

                  pastoral lease has the meaning set out in section 2 of the Crown Pastoral Land Act 1998

                    prescribed manner means the manner prescribed in regulations under clause 22

                      record of title has the meaning set out in section 5(1) of the Land Transfer Act 2017

                        Registrar means the Registrar-General of Land

                          water areas acquisition notice means a notice under clause 12 or 19

                            water areas covenant means a covenant between an owner and the Crown under clause 20 on the terms and in the form prescribed by regulations.

                            Notes
                            • Schedule 5 clause 2: inserted, on , by section 36 of the Overseas Investment Amendment Act 2021 (2021 No 17).

                            2Crown acquisition of fresh or seawater interest

                            3Crown must acquire fresh or seawater interest

                            1. The Crown must acquire, and the owner must allow the Crown to acquire, the fresh or seawater interest in accordance with this schedule.

                            2. The Crown must acquire the fresh or seawater interest before the water areas acquisition notice expires (see clause 14).

                            3. However, the Crown need not acquire the fresh or seawater interest if the owner is notified of a decision not to acquire in accordance with clause 4 or 5.

                            Notes
                            • Schedule 5 clause 3: inserted, on , by section 36 of the Overseas Investment Amendment Act 2021 (2021 No 17).

                            4Acquisition not required if amenity and conservation value outweighed

                            1. The Crown may decide not to acquire a fresh or seawater interest (in whole or in part) if the Minister for Land Information is not satisfied that the amenity and conservation value of the fresh or seawater area outweighs the potential risks, liability, and costs of acquisition and ownership of the area.

                            2. A decision not to acquire a fresh or seawater interest must be notified in writing to the owner of the fresh or seawater interest.

                            3. The notice must be given no later than the date prescribed in regulations.

                            Notes
                            • Schedule 5 clause 4: inserted, on , by section 36 of the Overseas Investment Amendment Act 2021 (2021 No 17).

                            5Acquisition not required if Minister not satisfied with amount of compensation to be paid

                            1. The Crown may decide not to acquire a fresh or seawater interest (in whole or in part) if the Minister for Land Information is not satisfied with—

                            2. the amount of compensation to be paid under clauses 9 and 10; or
                              1. if the compensation payable under clause 10 has not yet been assessed, the amount of compensation to be paid under clause 9 and likely to be paid under clause 10.

                                1. A decision not to acquire a fresh or seawater interest must be notified in writing to the owner of the fresh or seawater interest.

                                2. The notice must be given no later than the date prescribed in regulations.

                                Notes
                                • Schedule 5 clause 5: inserted, on , by section 36 of the Overseas Investment Amendment Act 2021 (2021 No 17).

                                6Terms of acquisition

                                1. Unless the Crown and the owner of a fresh or seawater interest agree otherwise, the terms of the acquisition are those prescribed in regulations.

                                2. The Crown and the owner may agree amendments, additions, and deletions to the terms of the acquisition.

                                3. An agreement under subclause (2), when recorded in an instrument registered under clause 13, runs with and binds the land that is subject to the water areas acquisition notice.

                                Notes
                                • Schedule 5 clause 6: inserted, on , by section 36 of the Overseas Investment Amendment Act 2021 (2021 No 17).

                                7Manner of acquisition

                                1. The Minister for Land Information may, by notice in the Gazette, vest a fresh or seawater area in the Crown.

                                2. Before making a notice under subclause (1), the Minister for Land Information must—

                                3. ensure that any requirements or steps prescribed in regulations are met or taken; and
                                  1. agree or determine the amount of compensation to be paid to the owner in accordance with clause 9.

                                    1. If a notice is made under subclause (1),—

                                    2. any part of the fresh or seawater area that is marine and coastal area vests in the Crown (and, to avoid doubt, becomes part of the common marine and coastal area under the Marine and Coastal Area (Takutai Moana) Act 2011); and
                                      1. any other part of the fresh or seawater area that is the bed of a lake or a river vests in the Crown as Crown land under the Land Act 1948.

                                        1. The Minister for Land Information must lodge the notice with the Registrar in the prescribed manner.

                                        2. On receipt of a notice, the Registrar must—

                                        3. register the notice:
                                          1. cancel any relevant water areas acquisition notice:
                                            1. comply with clause 16 (if applicable).

                                              Notes
                                              • Schedule 5 clause 7: inserted, on , by section 36 of the Overseas Investment Amendment Act 2021 (2021 No 17).

                                              8Effect of acquisition on estates or interests in land

                                              1. A fresh or seawater area is vested in the Crown free from all estates or interests in land including any encumbrances (without the necessity of any instrument of release or discharge or otherwise), except any estate or interest in land prescribed in regulations or specified in the notice under clause 7 as an interest to which the vesting does not apply.

                                              Notes
                                              • Schedule 5 clause 8: inserted, on , by section 36 of the Overseas Investment Amendment Act 2021 (2021 No 17).

                                              9Compensation payable to owner of fresh or seawater interest

                                              1. An owner of a fresh or seawater interest is entitled to claim compensation from the Crown.

                                              2. The compensation may be claimed and must be determined in the manner prescribed by regulations.

                                              3. However, the Crown and the owner may agree a different amount or procedure for determining an amount of compensation.

                                              4. An agreement under subclause (3), when recorded in an instrument registered under clause 13, runs with and binds the land that is subject to the water areas acquisition notice.

                                              Notes
                                              • Schedule 5 clause 9: inserted, on , by section 36 of the Overseas Investment Amendment Act 2021 (2021 No 17).

                                              10Compensation payable for other registered interests in land

                                              1. Any other registered owner of an estate or interest in land that is extinguished because of the operation of clause 8 is entitled to claim compensation from the Crown.

                                              2. The compensation may be claimed and must be determined in the manner prescribed by regulations.

                                              3. However, the Crown and the person may agree a different amount or procedure for determining an amount of compensation.

                                              4. However, a person is not entitled to compensation if either or both of the following apply:

                                              5. the water areas acquisition notice has priority over the instrument relating to the person’s estate or interest (see section 35 of the Land Transfer Act 2017):
                                                1. the person consented to the registration of the water areas acquisition notice.

                                                  1. The consent of a person under subclause (4) binds—

                                                  2. that person; and
                                                    1. any person who subsequently derives their estate or interest from that person.

                                                      Notes
                                                      • Schedule 5 clause 10: inserted, on , by section 36 of the Overseas Investment Amendment Act 2021 (2021 No 17).

                                                      3Water areas acquisition notice

                                                      11Crown’s right is interest in land

                                                      1. The Crown’s right to acquire a fresh or seawater area under this schedule is an interest in land within the meaning of section 51 of the Land Transfer Act 2017.

                                                      Notes
                                                      • Schedule 5 clause 11: inserted, on , by section 36 of the Overseas Investment Amendment Act 2021 (2021 No 17).

                                                      12Registration of water areas acquisition notice

                                                      1. The Crown’s right must be registered by lodging a water areas acquisition notice for registration with the Registrar in the prescribed manner.

                                                      2. The Registrar must register a water areas acquisition notice on receipt of a notice.

                                                      3. Every water areas acquisition notice, when registered, runs with and binds the land that is subject to the water areas acquisition notice.

                                                      4. Subclause (3) applies despite anything to the contrary in section 103 of the Land Transfer Act 2017.

                                                      Notes
                                                      • Schedule 5 clause 12: inserted, on , by section 36 of the Overseas Investment Amendment Act 2021 (2021 No 17).

                                                      13Variation of water areas acquisition notice

                                                      1. The following may be registered by lodging an instrument varying the water areas acquisition notice with the Registrar in the prescribed manner:

                                                      2. an agreement under clause 6 (relating to the terms of the acquisition):
                                                        1. an agreement under clause 9 (relating to the compensation payable to the owner of the fresh or seawater interest):
                                                          1. an extension under clause 14 (relating to the term of the water areas acquisition notice).

                                                            1. The Registrar must register a variation instrument on receipt of an instrument.

                                                            2. The consent of a registered mortgagee of an estate or interest in the fresh or seawater area must be obtained before registration of the instrument.

                                                            3. The consent of a mortgagee under subclause (3) binds—

                                                            4. the mortgagee; and
                                                              1. any person who subsequently derives an interest in the mortgage from the mortgagee.

                                                                Notes
                                                                • Schedule 5 clause 13: inserted, on , by section 36 of the Overseas Investment Amendment Act 2021 (2021 No 17).

                                                                14Expiration of water areas acquisition notice

                                                                1. A water areas acquisition notice expires at the end of the term prescribed in regulations.

                                                                2. However, the Crown and the owner may agree an extension (but not a reduction) of the term of a water areas acquisition notice.

                                                                3. An extension under subclause (2), when recorded in an instrument registered under clause 13, runs with and binds the land that is subject to the water areas acquisition notice.

                                                                Notes
                                                                • Schedule 5 clause 14: inserted, on , by section 36 of the Overseas Investment Amendment Act 2021 (2021 No 17).

                                                                15Cancellation of water areas acquisition notice

                                                                1. A water areas acquisition notice may be cancelled if—

                                                                2. the Crown gives a notice under clause 4 or 5:
                                                                  1. the water areas acquisition notice has expired (see clause 14):
                                                                    1. the Minister for Land Information is satisfied that a record of title does not contain any fresh or seawater areas:
                                                                      1. any other event specified in regulations occurs.

                                                                        1. The cancellation of a water areas acquisition notice may be registered by lodging an instrument cancelling the notice with the Registrar in the prescribed manner.

                                                                        2. The Registrar must cancel a water areas acquisition notice on receipt of an instrument.

                                                                        Notes
                                                                        • Schedule 5 clause 15: inserted, on , by section 36 of the Overseas Investment Amendment Act 2021 (2021 No 17).

                                                                        4Miscellaneous provisions

                                                                        16Cancellation and issue of records of title

                                                                        1. If any record of title comprises any fresh or seawater area that is vested under clause 7 and any adjacent land (the adjacent land), the Registrar must, despite anything in the Land Transfer Act 2017,—

                                                                        2. cancel the record of title that comprises the fresh or seawater area and the adjacent land; and
                                                                          1. issue a record of title in the name of the owner of the adjacent land for the adjacent land; and
                                                                            1. note any current registered interest or current registered notification that relates to the adjacent land against that record of title in the order in which it appears on the record of title cancelled under paragraph (a); and
                                                                              1. issue a record of title for any current registered notification, or registered estate or interest not extinguished because of the operation of clause 8, that relates to the fresh or seawater area that was part of the record of title cancelled under paragraph (a).

                                                                                1. The Registrar may require the Minister for Land Information or the owner to deposit any survey plan necessary for the issue of a record of title under subclause (1).

                                                                                Notes
                                                                                • Schedule 5 clause 16: inserted, on , by section 36 of the Overseas Investment Amendment Act 2021 (2021 No 17).

                                                                                17Acquisition relating to Māori freehold land

                                                                                1. If the owner’s acquisition of the relevant fresh or seawater interest is confirmed by the Māori Land Court under Te Ture Whenua Maori Act 1993 (the Maori Land Act 1993), that confirmation includes a confirmation of the Crown’s right to acquire the fresh or seawater interest (and, for the avoidance of doubt, the notice under clause 7 and the water areas acquisition notice (including any variations to that notice) need not be separately confirmed by the court).

                                                                                Notes
                                                                                • Schedule 5 clause 17: inserted, on , by section 36 of the Overseas Investment Amendment Act 2021 (2021 No 17).

                                                                                18Water areas acquisition notice relating to fresh or seawater interest held off-register: notice on adjacent title

                                                                                1. This clause applies if—

                                                                                2. a water areas acquisition notice cannot be registered against a record of title relating to a fresh or seawater area (for example, because it is a presumptive interest only or there is no record of title for the fresh or seawater interest for any other reason); and
                                                                                  1. the owner of the fresh or seawater interest is also the registered owner of a record of title relating to land adjoining the fresh or seawater area (an adjacent title).

                                                                                    1. A water areas acquisition notice may instead be registered against the adjacent title.

                                                                                    2. Clauses 7, 8, and 10 do not apply in relation to the fresh or seawater interest.

                                                                                    Notes
                                                                                    • Schedule 5 clause 18: inserted, on , by section 36 of the Overseas Investment Amendment Act 2021 (2021 No 17).

                                                                                    19Water areas acquisition notice relating to fresh or seawater interest held off-register: owner does not own adjacent title

                                                                                    1. This clause applies if—

                                                                                    2. a water areas acquisition notice cannot be registered against a record of title relating to a fresh or seawater area under clause 12 (for example, because it is a presumptive interest only or there is no record of title for the fresh or seawater interest for any other reason); and
                                                                                      1. clause 18(1)(b) does not apply (that is, the owner of the fresh or seawater interest is not also the registered owner of an adjacent title).

                                                                                        1. The owner of the fresh or seawater interest must provide a water areas acquisition notice to the Crown in the prescribed manner.

                                                                                        2. Clauses 7, 8, 10, 12, 13, 14(3), and 15(2) and (3) do not apply in relation to the fresh or seawater interest.

                                                                                        Notes
                                                                                        • Schedule 5 clause 19: inserted, on , by section 36 of the Overseas Investment Amendment Act 2021 (2021 No 17).

                                                                                        20Acquisition relating to fresh or seawater interest held off-register

                                                                                        1. This clause applies, in place of clause 7, in the circumstances described in clauses 18(1) and 19(1).

                                                                                        2. The Minister for Land Information may, by requiring the owner to grant a water areas covenant to the Crown, acquire the fresh or seawater interest.

                                                                                        3. Before requiring the grant of a water areas covenant, the Minister for Land Information must—

                                                                                        4. ensure that any requirements or steps prescribed in regulations are met or taken; and
                                                                                          1. agree or determine the amount of compensation to be paid to the owner in accordance with clause 9.

                                                                                            1. If the owner of the fresh or seawater interest is also the registered owner of an adjacent title, a water areas covenant may be registered against the adjacent title.

                                                                                            2. The Crown only acquires the fresh or seawater interest under this clause to the extent that there is no better claim to the fresh or seawater interest than the claim that the owner had immediately prior to the vesting.

                                                                                            Notes
                                                                                            • Schedule 5 clause 20: inserted, on , by section 36 of the Overseas Investment Amendment Act 2021 (2021 No 17).

                                                                                            21Acquisition is not subdivision

                                                                                            1. Nothing in section 11 and Part 10 of the Resource Management Act 1991 applies to—

                                                                                            2. any acquisition by the Crown of land as a direct or indirect consequence of the operation of this schedule; or
                                                                                              1. any matter incidental to, or required for the purpose of, any acquisition of that kind.

                                                                                                Notes
                                                                                                • Schedule 5 clause 21: inserted, on , by section 36 of the Overseas Investment Amendment Act 2021 (2021 No 17).
                                                                                                • Schedule 5 clause 21: amended, on , by section 6 of the Resource Management (Natural and Built Environment and Spatial Planning Repeal and Interim Fast-track Consenting) Act 2023 (2023 No 68).

                                                                                                22Regulations regarding acquisition of fresh or seawater areas

                                                                                                1. For the purposes of this schedule, the Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for the purposes of this schedule that prescribe any or all of the following:

                                                                                                2. the terms and form of a water areas acquisition notice:
                                                                                                  1. the date before which a notice under clause 4 or 5 must be given:
                                                                                                    1. the terms of the acquisition for the purposes of clause 6:
                                                                                                      1. processes or steps for the purposes of clause 7 (for example, requirements to survey the fresh or seawater area or the adjacent land (as defined in clause 16)):
                                                                                                        1. interests in land for the purposes of clause 8:
                                                                                                          1. the process for claiming and determining compensation payable to an owner of a fresh or seawater interest for the purposes of clauses 9 and 10, including—
                                                                                                            1. the manner in which compensation may be claimed and the consequences of failure to claim compensation:
                                                                                                              1. a procedure for determining compensation:
                                                                                                              2. an event for the purposes of clause 15:
                                                                                                                1. the terms and form of a water areas covenant:
                                                                                                                  1. for the purposes of any provision of this schedule that requires a thing to be done in a prescribed manner, the manner in which the thing must be done, including—
                                                                                                                    1. by whom, when, where, and how the thing must be done:
                                                                                                                      1. any form that must be used in connection with doing the thing:
                                                                                                                        1. any information or other evidence or documents that must be provided in connection with the thing.

                                                                                                                        2. Regulations made under this clause are secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).

                                                                                                                        Notes
                                                                                                                        • Schedule 5 clause 22: inserted, on , by section 36 of the Overseas Investment Amendment Act 2021 (2021 No 17).