Most alterations to the position of the Mean High Water Mark (MHWM) or the original definition of the bank of a non-tidal stream will require the consent of the relevant authority.
In most cases Crowns Lands will be the relevant approval or consent authority. However Crown Lands is not the only owner of land below MHWM. Where Crown Lands is not the owner of land adjoining the foreshore, consent must be obtained from the appropriate authority. Some of these include:
- Transport for NSW (all lands below MHWM, or Former (F)MHWM as the case may be in Port Jackson, Botany Bay, Port Hunter and Port Kembla).
- Sydney Olympic Park Authority (where tidal waterways were included in the land resumed)
- Government Property NSW (Darling Harbour)
- National Parks and Wildlife Service (where tidal waters have been included in land resumed for state or national parks)
- Private parties where the land below the MHWM was included in the Grant
- Sydney Water (resumed waterways, e.g. Cooks River Canal, formerly tidal water).
Approval/consent to tidal waters by Crown Lands
A surveyor must obtain the approval/consent of Crown Lands to the definition of the MHWM in any survey where the adjoining land below the MHWM is Crown land and/or the boundary of the parcel comprises the landward boundaries of a Crown road or reservation fronting tidal water.
With regard to Crown land:
- “Approval” refers to an approval obtained from the Minister administering the Crown Land Management Act 2016 to the definition of the MHWM (being clauses 45,46 and 48 Surveying and Spatial Information Regulation 2017).
- “Consent” refers to situations where Crown Lands has investigated the definition of the MHWM and accepts/agrees to the definition as an adjoining owner.
NOTE: This includes boundaries defined by a MHWM which ceased to exist due to changes caused by construction, flood mitigation works, land fill (reclamation), erosion, legislation or a combination of these.
Applications for approval/consent should be accompanied by a completed water boundary determination application form (which outlines required supporting documents including comprehensive reports, searches etc.) and forwarded to:
Email: enquiries@crownland.nsw.gov.au
Or
Mail to:
NSW Department of Planning, Industry & Environment – Crown Lands
PO Box 2155
Dangar NSW 2309
For further information see Crown Lands website at
https://www.crownland.nsw.gov.au/resources/water-boundary-determination
Approval to tidal waters by Crown Lands
Where the position of the MHWM has been redefined
a) No accretion claimed
Any plan re-defining the position of the MHWM that has changed by natural, gradual and imperceptible processes and is not claiming any extra land by accretion will require the approval of Crown Lands to be endorsed on the plan.
On acceptance Crown Lands will provide the appropriate approval endorsement statement to be placed on the deposited plan Administration Sheets at the completion of a water boundary determination investigation.
b) Accretion included in the parcel
Any plan re-defining the position of the MHWM that claims extra land by accretion must satisfy the provisions of section 28 Coastal Management Act 2016. If these requirements are met the approval of Crown Lands will be endorsed on the plan. Refer to Surveyor General’s directions No. 6 regarding section 28 Coastal Management Act 2016 (formerly s55N Coastal Protection Act 1979, as amended).
On acceptance Crown Lands will provide the appropriate approval endorsement
statement to be placed on the deposited plan Administration Sheets at the completion of
a water boundary determination investigation.
Where the new plan is the first definition of the MHWM
In situations where a new plan includes the first definition of a MHWM (e.g. a plan of subdivision of a previously unsurveyed Crown reserve) the approval of Crown Lands is required.
On acceptance Crown Lands will provide the appropriate approval endorsement statement to be placed on the deposited plan Administration Sheets at the completion of a water boundary determination investigation.
Landward boundary of Reserve or Crown road
The definition of the landward boundary of a reserve or Crown Road requires the approval of Crown Lands.
On acceptance Crown Lands will provide the appropriate approval endorsement statement to be placed on the deposited plan Administration Sheets at the completion of a water boundary determination investigation.
Consent to tidal waters by Crown Lands
Where the position of the MHWM is unchanged
a) Consent/approval is endorsed on previous plan
A plan that includes a definition of a MHWM that is identical with that shown on a base plan that is endosement with the consent of Crown Lands is exempt from obtaining a fresh approval/consent. A statement should be shown on the plan as follows:
THE LOCATION OF THE MHWM BOUNDARY AS SHOWN HEREON IS SUBSTANTIALLY THE SAME AS THAT SHOWN ON ....... (add plan number)
NOTE: This does not apply when the "Present shoreline" (being the present location of MHWM fronting the subject land) fronting the land has been altered or appears to have changed since the previous approval/consent was obtained.
b) Previous plan(s) not endorsed with Crown Lands approval/consent
The consent of Crown Lands must be obtained for any plan that re-determines the location of a MHWM unchanged from a previous plan that does not bear Crown Lands consent.
On acceptance Crown Lands will provide the appropriate consent endorsement statement to be placed on the deposited plan Administration Sheets at the completion of a water boundary determination investigation.
NOTE: When adopting a previous plan that has not included a table of short lines that represent the MHWM boundary, the MHWM boundary line depicted on the plan should be digitised to provide a mathematical closure of the proposed lot.
Consent to non-tidal waters by Crown Lands
In any case, where the new survey discloses a significant variation in the position of the bank of a stream when compared to earlier plans or where the original bank of the stream cannot be reproduced with certainty, the approval of Crown Lands to the definition in the plan is required. The surveyor should prepare an appropriate report (see below).
On acceptance Crown Lands will provide the appropriate consent endorsement statement to be placed on the deposited plan Administration sheets at the completion of a water boundary determination investigation.
Where the position of the bank is unchanged
Specific consent from Crown Lands is not required where the position of the bank is unchanged. The following statement should be added to the plan:
THE LOCATION OF THE BANK BOUNDARY AS SHOWN HEREON IS SUBSTANTIALLY THE SAME AS THAT SHOWN ON .......... (add plan number) ...........
Reports to accompany applications for approval/consent of Crown Lands
A surveyor must provide a comprehensive report when seeking approval or consent from
Crown Lands.
The report must include:
- the basis and method of determining the location of the bank of the stream and/or lake or the MHWM, and
- an opinion, supported by photographs, documentation and evidence, as to the reason for the change and the process by which that change took place, and
- such other information, relevant to the location of the boundary, as is reasonably required to substantiate the definition.
Consent to MHWM by Transport for NSW (Maritime)
Transport for NSW (preceded by Roads and Maritime Services, NSW Maritime, the Waterways Authority, the Maritime Services Board and the Sydney Harbour Trust) is the relevant authority for all lands below MHWM or FMHWM as the case may be in Port Jackson, Botany Bay, Port Hunter and Port Kembla.
The consent of Transport for NSW is required where the definition of a MHWM (or former MHWM) boundary:
- has not been previously consented to or,
- has been previously consented to but didn’t previously describe the boundary by bearings and distances (‘short lines’) or,
- differs from a previously consented to definition.
Consent is not required where a foreshore boundary is defined by a right line in a plan on public record. The right line may be, for example, a limit line for reclamation or a line along a monument such as a seawall. However if the boundary is described as MHWM on a monument consent may be required. In either case, when undertaking surveys adjoining Transport for NSW tidal waters, the importance of requesting search information prior to attempting any field work cannot be overstated. This information is available digitally and can be provided on request. Please forward requests by email to the Maritime Survey Manager using the contact details below.
If there is any doubt with regard to the status of foreshore boundary, Transport for NSW encourages surveyors to contact the Maritime Survey Manager using the contact details below.
Unchanged boundaries
Any plan defining the position of the MHWM (or FMHWM) in the same position as that shown in the previous survey which described the natural boundary by bearings and distances (‘short lines’)and had the consent of Transport for NSW endorsed on the plan, does not need to be submitted for re-endorsement before being lodged for registration. Although that is the case, the following statement should be completed and added to the face of the plan.
THE DEFINITION OF F/MHWM IS THE SAME AS THAT SHOWN ON DP…... FOR CONSENT TO THE DEFINITION SEE TRANSPORT FOR NSW FILE(S): …..’
If there is any doubt with regard to the status of an existing endorsement, Transport for NSW encourages surveyors to contact the Maritime Survey Manager using the contact details below.
Changed boundaries
a) No accretion claimed
If the variation in the position of the MHWM (or FMHWM) was NOT caused by accretion, the following statement of consent should be added to the plan:
TRANSPORT FOR NSW, IN ACCORDANCE WITH PART 2, DIVISION 5 OF THE SURVEYING AND SPATIAL INFORMATION REGULATION 2017 APPROVES THE DETERMINATION OF THE F/MHWM BOUNDARY AS SHOWN HEREON.
TRANSPORT FOR NSW FILE ........... ON ......./......./.......
NOTE: Consents signed by Transport for NSW predecessor agency Roads and Maritime Services prior to 1 December 2019 will be accepted.
b) Accretion claimed
If the variation was caused by accretion to the adjoining land, and the criteria of the modified doctrine has been satisfied, the following statement of consent should be added to the plan:
TRANSPORT FOR NSW IN ACCORDANCE WITH PART 2, DIVISION 5 OF THE SURVEYING AND SPATIAL INFORMATION REGULATION 2017 AND SECTION 28 OF THE COASTAL MANAGEMENT ACT 2016, APPROVES THE DETERMINATION OF THE MHWM BOUNDARY AS SHOWN HEREON.
TRANSPORT FOR NSW FILE ........... ON ......./......./........
NOTE: Consents signed by Transport for NSW predecessor agency Roads and Maritime Services prior to 1 December 2019 will be accepted.
Requests for consent should be forwarded to:
Maritime Survey Manager
Transport for NSW (Maritime)
33 James Craig Road
Rozelle NSW 2039
Email: maritime.survey@transport.nsw.gov.au
Phone: 9563 8538
Claims to centre line of stream (ad medium filum aquae)
A plan that includes a new definition to the centre thread of a stream and claims a right to half of the bed of the stream must be accompanied by a formal claim in all cases. This claim should be prepared as a Request form 11R and lodged at NSW LRS as a dealing. On completion of examination of the boundaries the plan and request should be directed to NSW LRS Legal and Dispute Resolution team for consideration. Sufficient evidence (statutory declarations etc.) supporting the surveyor’s definition of the centre of the stream and indicating that the principles of ad medium filum aquae have not been rebutted should accompany the plan.
For further information regarding the ad medium filum aquae rule see section 13.3 Crown Land Management Act 2016.