On 11 October 2021, the Real Property Amendment (Certificates of Title) Act 2021 commenced, which abolished the Certificates of Title (CTs) and the control of the right to deal (CoRD) framework. All existing CTs have been cancelled and CTs will no longer be issued. Existing CTs will not need to be produced, and CoRD holder consent will not be required, for a dealing or plan to be registered. All existing Guidelines subject to this change are currently being reviewed and will be updated to reflect these changes. For further information regarding the abolition of CTs, please see https://www.registrargeneral.nsw.gov.au/property-and-conveyancing/eConveyancing/abolition-of-certificates-of-title

Tidal boundaries (MHWM)

Title to the bed of tidal waters

Title to the bed of tidal waters (unless the subject of a Crown Grant) is generally vested in the Crown, i.e. 'The State of NSW', under the control of Crown Lands on behalf of the Minister Administering the Crown Lands Management Act 2016.

However, title to land below Mean High Water Mark (MHWM) may have subsequently been divested to Transport for NSW (Maritime) or another public authority see Approvals and consents to natural boundaries page.

Transport for NSW (Maritime)

Port Jackson, Botany Bay, Port Hunter and Port Kembla

Transport for NSW (preceded by agencies including Roads and Maritime Services, NSW Maritime, the Waterways Authority, the Maritime Services Board and the Sydney Harbour Trust) is the proprietor of the bed of Port Jackson, Botany Bay, Port Hunter and Port Kembla. Transport for NSW must approve the definition of the MHWM or Former MHWM as the case may be where boundaries are formed with these titles. The relevant statement (signed by an authorised officer of Transport for NSW) must be added to the plan.

NOTE: Land reclaimed from bed of Port Jackson but not granted or alienated is vested in Transport for NSW vide Proclamation in Government Gazette dated 13 June 1901.

Any accretion to land adjoining the tidal waters of Sydney Harbour (Port Jackson) or Botany Bay, or their tributaries, must satisfy the requirements of the modified doctrine pursuant to section 28 Coastal Management Act 2016.

By agreement with Transport for NSW, the NSW LRS accepts the approval of the authority as indicating that it is satisfied, after examination, that the definition of MHWM or FMHWM of the respective ports is also the definition of the Transport for NSW’s title boundary.

Titles to any land formerly in the name of the Sydney Harbour Trust, Maritime Services Board, Waterways Authority, Marine Ministerial Holding Corporation (MMHC), NSW Maritime or Roads and Maritime Services (RMS) should be in the name of Transport for NSW.

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 - maritime.survey@transport.nsw.gov.au

Tidal lakes

It is doubtful whether there are any lakes in NSW which have perceptible tides. The so called tidal 'lake', (e.g. Lake Macquarie) is actually an inlet of the sea. 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.

Locating or relocating tidal boundaries

The following points must be observed by a surveyor when locating or relocating a parcel boundary defined by the MHWM and when showing that boundary on a new plan of survey:

  • reference to 'high-water mark' (or other boundary of land that abuts tidal water) in a previous plan of survey is taken to be reference to 'Mean High Water Mark' unless otherwise stated see clause 51 Surveying and Spatial Information Regulation 2017
  • the description and relationship to the MHWM of any sea wall and reclaimed land must be shown in a new plan of survey - see clause 65 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 of stipulated width fronting tidal waters which has not been previously defined by survey must be defined by right lines approximately parallel to the MHWM as originally defined see clause 45 Surveying and Spatial Information Regulation 2017 - see page on Landward Boundaries of Roads and Reserves Abutting Waterways and Other Natural Features
  • An assessment must be made as to whether the location of the MHWM is  the same as that shown in the previous survey(s) or whether accretion or erosion has taken place. Any accretion will invoke the provisions of the Coastal Management Act 2016 (see below).

Deposited plans adjoining tidal waters will only be registered in NSW LRS if approval from Crown Lands, Transport for NSW or other designated authority to the definition of the MHWM is supplied or has been specifically approved in a previous plan see Approvals and consents to natural boundaries page.

Under existing legislation NSW LRS has no authority to waive the requirement for obtaining consent, however, the Minister has given permission for certain concessions. These apply to a plan:

  • of partial survey where the lot containing the position of the MHWM is a compiled residue lot
  • that defines the MHWM in the same location as a Crown plan, and/or
  • that defines the MHWM in the same location as an existing registered plan and the definition in that plan has the required consent(s).

Coastal Management Act 2016

The Coastal Management Act 2016 commenced on 3 April 2018. If the land is located within the 'coastal zone' or adjoins the tidal waters of Sydney Harbour (Port Jackson) or Botany Bay, the court will not make a declaration concerning a water boundary where the parcel of land adjoining would increase in area if:

  • the accretion is not likely to be indefinitely sustained by natural means, or
  • public access to the waterfront will, or is likely to be restricted or denied.

See section 28 Coastal Management Act 2016 (previously section 55N Coastal Protection Act 1979).
Maps outlining the coastal zone are available for inspection at the principal office of the relevant Local Government Authority or the relevant regional office of the Department of Planning, Industry and Environment www.planning.nsw.gov.au.

NOTE: NSW LRS provided a concession whereby new plans dated between 8 February 2002 and 8 February 2003 that bear the original consent (i.e. without reference to the repealed section 55N Coastal Protection Act 1979) could be accepted and processed. Any consent prior to 8 February 2002 must be returned to the consent authority for review.
All plans lodged after 8 February 2003 must bear the statement as shown in the Approvals and consents to natural boundaries page.

NOTE: Section 28 does not apply to the amendment or redefinition of titles that were previously based upon poor, erroneous or inaccurate surveys. For further information see Appendix A, Surveyor General's Directions No.6 'Water as a Boundary - Procedures'.

NOTE: The coastal zone refers to tidal waters as at 2002.  Coastal zone is now defined pursuant to section 5 Coastal Management Act 2016. An inconsistency exists with many plans and titles with a tidal boundary based on a 19th Century Crown Grant which abut rivers that are no longer tidal (through siltation etc). In these instances evidence from Crown Lands must be supplied stating that the subject is not located within the coastal zone.

Definition of the MHWM boundary on the plan

The position of the MHWM boundary should be shown on the plan in accordance with the provisions of Part 2 (Clause 64 (c)Surveying and Spatial Information Regulation 2017. The plan must:

  • describe the MHWM boundary (Mean High Water Mark, Original Mean High Water Mark, Former Mean High Water Mark, Mean High Water Mark as shown in DP.....etc.)
  • show the boundary as a continuous spline curve that generally follows the position MHWM
  • include a table of sequential bearings and distances that accurately locate each change in direction of the MHWM boundary
  • include a connection between the terminals of the MHWM boundary for each lot

If accretion disclosed in a new survey cannot satisfy the conditions of the modified doctrine (either as to sustainability or due to public access issues), or the Former MHWM has been lost due to reclamation etc, then the original MHWM must be adopted.  The new plan should show the original MHWM as the title boundary together with the present shoreline (shown as broken lines) as determined at that date. Both the original MHWM boundary and the present shoreline should be shown and described on the plan as outlined above. The accreted or reclaimed land between the MHWM and the shoreline must be clearly described on the plan with the following notation:

LAND NOT SATISFYING SECTION 28 COASTAL MANAGEMENT ACT 2016

NOTE: See DP1206213 for an example of where the land did not satisfy section 55N Coastal Protection Act 1979 (now section 28 Coastal Management Act 2016)

All NSW legislation can be accessed at www.legislation.nsw.gov.au/ 

Publish date: December 2023