Property problems: Foreshore Act a concern for coastal buyer

Q: I am a developer interested in purchasing an area of coastal property.

The land I am considering purchasing has a well-established walkway passing through it along the beach front, which has been, and still is, used by the public for recreational use.

The certificate of title to the land does not contain any reference to this walkway.

Are there any implications arising under the Foreshore and Seabed Act, or any other law?

It is my understanding that the act vests ownership of the foreshore and seabed in the Crown.

Also, should I decide to purchase the land, am I able to prohibit the public from using the walkway?

A: As you correctly state, the act provides for, among other things, the vesting of the full legal and beneficial ownership of the foreshore and seabed in the Crown. This is a reflection of the objective of the act, which is to "preserve the public foreshore and seabed in perpetuity as the common heritage of all New Zealanders".

Although the Foreshore and Seabed Act 2004 does provide for the vesting of the foreshore and seabed in the Crown, the act does not significantly interfere with the rights of fee simple owners of land. Indeed, section 5(b) of the act states that "public foreshore and seabed" does not include any land that is, for the time being, subject to a specified freehold interest. "Specified freehold interest" is defined in the act as including any privately owned land which is contained in a freehold certificate of title.

Whether the coastal areas of the property you refer to are subject to Crown ownership, and thus public access, is dependent on whether these areas fall within the statutory definition of foreshore and seabed. Section 5 of the act defines "foreshore and seabed" and includes: "the marine area that is bounded -

(i) on the landward side by the line of mean high water springs; and

(ii) on the seaward side, by the outer limits of the territorial sea".

Land or water that does not fall within this definition is not subject to the act and so the Crown has no claim to it. If you have concerns about whether the property falls within the above definition, it would be worthwhile instructing a registered surveyor to confirm the extent of the coastal boundary to the property in question.

With regard to your concerns relating to the walkway, it is possible that a purchaser of the land may not have the authority to prevent the public from using the walkway. This would depend on whether the common law doctrine of implied dedication applied.

The courts in New Zealand have confirmed that the doctrine of implied dedication can apply notwithstanding our Torrens land system (whereby the certificate of title records all rights and obligations affecting the land).

Implied dedication has two principal requirements: Firstly, an express or implied intention on the part of the landowner (and all other persons having an interest in the land) to dedicate the land; and secondly, public acceptance of the dedication. This acceptance is usually established by continued use of the land for public access. Both of these matters are questions of fact to be determined by reference to the particular circumstances. The required intention of the landowner can be inferred. This may occur where the landowner is aware that the public regularly cross over the land and does nothing to prevent it.

To date, the doctrine has generally only been thought to apply with respect to roads. What is not entirely clear is whether the doctrine also applies to walkways.

As you have stated that the access way used by the public is only a "walkway", it is unlikely that the grounds of implied dedication would be established. In these circumstances, public access to the walking track would be subject to your consent as the freehold owner.

The rights of freehold owners are protected by the act and the doctrine of implied dedication is unlikely to apply in your situation. Ultimately, the applicability of the act and the doctrine of implied dedication is largely fact specific.