Riparian Rights: What exactly are they?
Those lucky enough to be in the market for a waterfront property in New Zealand will inevitably come across the term “riparian rights”. Chapman Tripp Principal Mark Nicholson outlines the extent of these rights and the implications for owners of waterfront property.
Riparian rights in New Zealand owe their existence to this country’s English legal heritage. These ancient rights apply to all property which directly adjoins the sea, a river, or a lake.
COASTAL PROPERTY
There is some confusion about the extent of riparian rights especially in the context of coastal property. A common mistake is to confuse riparian rights of access over a beach with exclusive ownership.
As a result of the Foreshore and Seabed Act 2004, the vast majority of the New Zealand foreshore is owned by the Crown. Small sections of the New Zealand foreshore are in private ownership, but this is relatively rare. The act defines the foreshore and seabed as the marine area between the highest point of the spring tide and the outer limit of the New Zealand territorial sea.
As a result, most beaches are in Crown ownership. While the act does not extinguish private riparian rights of access over the foreshore and seabed, in practical terms these rights are often redundant because of the statutory rights of access available to all members of the public, including the private owners of adjoining land.
The only situation where this is not the case is where public access to the foreshore is cut off by private land. In this situation, only the owners of neighbouring land or boat owners will have any practical means of access to the beach.
This probably accounts for the common misconception that certain beaches are privately owned, although the land surrounding them may well be. Aside from riparian rights of access, the owner of coastal property has very few additional rights.
Riparian owners have the right to temporarily moor a boat and to use any existing jetties or moorings fronting onto their property. However, this does not extend to installing any new permanent moorings, jetties or other structures unless they obtain consent under the Resource Management Act 1991.
LAKES AND RIVERS
As with coastal property, riparian rights of access over lakes and rivers have in practice largely been superseded by public rights of access.
Typically, the only exception is smaller lakes and rivers which are not adjoined by public reserves and are not navigable by boat.
In these limited circumstances, private riparian rights of access retain their importance. Riparian rights do permit the taking of water from lakes and rivers by owners of adjoining land but this is limited to the amount required for an individual’s reasonable domestic needs, including drinking water for animals. In all other respects, the taking of water is governed by the Resource Management Act 1991 and is subject to the restrictions imposed by that act.
THE “QUEEN’S CHAIN”
Esplanade reserves are usually created when a private owner of waterfront property wishes to subdivide a property.
As a condition of granting subdivision consent, the local authority will typically require that the land immediately fronting onto the waterfront is vested in the Crown as a reserve.
This reserve is usually 20 metres wide. In the context of coastal property, esplanade reserves have become commonly referred to as the “Queen’s Chain”.
Following the creation of an esplanade reserve, the owner of the private property no longer has direct ownership contact with the water and so will not benefit from any “riparian rights”.
However, again in practical terms this does not make a lot of difference as they will still have a general right of access over the reserve, albeit shared with members of the public.
In conclusion, the real benefit of owning absolute waterfront property in New Zealand lies in its easy access to the water and the beauty, privacy and seclusion it often naturally provides – not from an ancient set of common law rights which have largely been superseded by statute.
