Non-tidal lakes and lagoons
Most coastal lakes or lagoons have, at one time or another, been closed off from the sea and accordingly are classified as non-tidal.
The following coastal lakes or lagoons in this State have been considered by the Courts to be non-tidal:
- Narrabeen Lagoon (State Report Vol.45 page 321)
- Dee Why Lagoon (Commonwealth Law Report Vol.10 page 341)
- Lake Illawarra (State Report Vol.21 page 408): the Court ruling affects part of the lake and a tributary
- Glenrock Lagoon (State Report Vol.5 page 157)
NOTE: Where the Courts have ruled part of Lake Illawarra as being tidal, a 30.48 metre Crown Reserve may also affect the parcel(s). See Memorandum AF78929.
When a plan of survey includes a boundary fronting non-tidal lake or lagoon waters, the line of the current bank should be examined by the surveyor and compared with the boundary as defined by the Crown survey. If the comparison discloses no more than minor variations in position, the definition will be accepted by NSW LRS.
If variations of any significance are evident, the surveyor must adopt the original line of the bank. Pursuant to section 13.3 (3) Crown Land Management Act 2016 (formerly s 172 Crown Lands Act 1989). The doctrine of accretion and the 'ad medium filum' rule does not apply and is deemed never to have applied to non-tidal lakes and lagoons.
Where the original line cannot be reproduced with certainty, the approval of Crown Lands to the definition in the plan will be required see Approvals and consents to natural boundaries.
Non-tidal rivers and streams
When a plan of survey includes a boundary fronting non-tidal stream waters, the line of the bank forming the boundary of the land should be examined by the surveyor and compared with the line as defined by the current plan. If the comparison discloses no more than minor variations in its position, the definition will be accepted by NSW LRS. A suitable statement should be added to the plan see Approvals and consents to natural boundaries.
Where a survey reveals a substantial variation in the position of the bank when compared with that determined in earlier plans, the consent of the Minister administering the Crown Land Management Act 2016 or his delegate is required. Sufficient evidence must be produced to support any claim of accretion and/or erosion see Accretion and erosion page. A statement of consent should be added to the plan see Approvals and consents to natural boundaries.
If the position of the bank has changed suddenly, or by artificial means (i.e. flood, reclamation etc.), the position of the bank as defined before the sudden change occurred must be adopted. Both the existing and original positions of the bank should be shown on the plan.
Locating or relocating non-tidal boundaries
The following points must be observed by a surveyor when locating or relocating a parcel boundary defined by non-tidal waters and when showing that boundary on a new plan of survey:
- the bed of a lake or stream is defined by the average level of water to the bank, without reference to floods and/or droughts but includes areas that might be alternately covered or left bare with increase or diminution in the water supply
- a lake includes a permanent or temporary lagoon or similar collection of water not contained in an artificial work
- the middle line of a stream need not be marked unless the purpose for which the survey is made so requires see clause 47 Surveying and Spatial Information Regulation 2017
- if the middle line of a stream is the boundary of land and has not previously been defined by survey, or if the middle line of a stream is otherwise required to be determined, then both banks of the stream must be surveyed and shown on the survey plan together with the determination of the middle line - see clause 47 Surveying and Spatial Information Regulation 2017
- the natural feature boundary must be surveyed to show each change in course or direction with appropriate accuracy
- the landward boundary of an existing reservation or Crown road of stipulated width along a non-tidal stream or lake or other natural feature which has not been previously defined by survey must be defined by right lines approximately parallel to the position of that natural feature as originally defined and the location of that natural feature as it existed at the time of the survey must be determined and shown on the new plan of survey. Reference marks must be placed at the terminals of the survey and at intervals of not more than 1,000 metres along the boundary see clause 45(2)(d) Surveying and Spatial Information Regulation 2017.
Definition of non-tidal boundaries on the plan
The position of the natural feature boundary should be shown on the plan in accordance with the provisions of Part 2 Surveying and Spatial Information Regulation 2017. The plan must:
- describe the natural feature boundary (Bank is Boundary, Centreline is Boundary, Bank as shown in DP.....is Boundary etc.)
- show the boundary as a continuous spline curve that generally follows the position of the natural feature
- include a table of sequential bearings and distances that accurately locate each change in direction of the natural feature boundary
- include a connection between the terminals of the natural feature boundary for each lot
If the current position of the bank or other natural feature has not been adopted as the boundary, the new plan must show the original natural feature as the title boundary. Both the current and original positions of the natural feature should be shown and described on the plan as outlined above (see DP1214596). If a boundary extends to the centre thread of a river or stream, then that centreline boundary should also be shown and described on the plan (see DP1263171 and DP1270993)
All NSW legislation can be accessed at www.legislation.nsw.gov.au/