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

Plans affecting land below the MHWM

The State of NSW extends seaward for three nautical miles below the foreshore and from a line joining the headlands at the mouth of inlets V see Commonwealth Coastal Waters (State Powers) Act 1980. Consequently, various government agencies or authorities prepare deposited plans that constitute part(s) of the Pacific Ocean and its bays and estuaries either to define specific parcels of sea-bed for creation of a certificate of title, or to define the sites of easements or leases located below the Mean High Water Mark.

The new parcels of land, leases and easements may be for the purpose of marinas, moorings, house-boats, underwater pipelines, conservation zones, oyster farms, aquaculture etc. In order to supply a parcel identity suitable for title creation it is necessary to prepare a plan of survey defining the proposed parcel or site. If a current certificate of title does not exist, Crown First Title creation of part of the existing Crown Title land will be required.

Following registration of the plan subsequent registration of any necessary easement or lease dealing(s) will proceed.

The fee of land below the MHWM will usually stand in the name of either Roads and Maritime Services (for waters located within Sydney Harbour, Botany Bay, Port Hunter or Port Kembla) or the State of NSW (for most other waterways). However, waterways may also be vested in other authorities (e.g. Cowan Creek is vested in NPWS as part of Ku-ring-gai Chase National Park and Lake Illawarra is vested in the Lake Illawarra Authority).

Deposited plans of subdivision

Any plan defining a parcel of land located below the MHWM must:

  • be a plan of survey prepared by a registered surveyor
  • be signed by all affected parties
  • bear a completed subdivision certificate (or indicate a relevant exemption pursuant to s.23(G) Conveyancing Act 1919)
  • bear a consent by the relevant authority to any alteration in the definition of the MHWM
  • comply with all requirements specified in the Surveying and Spatial Information Regulation 2012
  • be connected to two established Permanent Marks
  • as the corners of the parcel cannot be pegged, connect at least two corners of the site to reference marks placed along the waterfront
  • define the lot(s) by bearings and distances.

A new plan which comprises Crown Title Land should be accompanied by a CL45-11 document and have the Crown Lands panel on the Administration Sheet completed by a delegate of the Minister. Crown First Titles will be created upon registration of the plan. Plans which comprise Torrens Title land (i.e. Volume 5018 Folio 1 ~ Sydney Harbour) do not require a CL45-11 document or the consent of Crown Lands. If the new plan subdivides a parcel in an existing plan (i.e. Botany Bay, Port Kembla) a compiled residue lot will be required.

Plan requirements for easement sites

A plan with an intended easement site located below the MHWM may indicate the easement as Proposed or create the easement by inclusion in a Section 88B Instrument pursuant to s.52 Crown Lands Act 1989. The deposited plan defining the easement site must:

  • be a plan of survey prepared by a registered surveyor
  • be signed by a delegate of the Minister Administering the Crown Lands Act (if affecting Crown Title Land) or the appropriate authority (Torrens or Old System land)
  • comply with all requirements specified in Clause 18 Surveying and Spatial Information Regulation 2012
  • be connected to two established Permanent Marks
  • define the site by bearings and distances.

Easements shown on the plan as proposed and affecting Crown Title land may be subsequently created by publication of a notification in the Government Gazette.

Alternatively, the plan may define a new lot that encompasses the easement site. On registration a Crown First Title will be created upon which a notification relating to the new easement can be endorsed. The easement may be shown as Proposed (for creation by a subsequent Transfer Granting Easement dealing) or created by means of an accompanying s.88B Instrument. The plan must be prepared in accordance with the requirements for Deposited Plans of Subdivision set out above.

Plan requirements for proposed lease sites

Any plan defining a parcel of land located below the MHWM intended for subsequent lease action will constitute a subdivision unless the intended term of the lease (plus any option for renewal) is five years or less. The plan must be prepared in accordance with the requirements for Deposited Plans of Subdivision set out above.

A lease plan may include a parcel consolidating land both above and below the MHWM. In this instance normal plan requirements for the part located above the MHWM will apply. The position of the MHWM within the new lot should be shown by thin broken linework.

If the new plan discloses a significant variation in the position of the Mean High Water Mark when compared to the current plan for the adjoining land parcel, the Registrar General may require the preparation of a new plan of survey redefining the boundaries of the land parcel so that a common definition is established. Such a plan will require the specific consent of Roads and Maritime Services, Crown Lands etc as to the position of the Mean High Water Mark. See also Practice Statement 2007/4

Note 1  A plan for a proposed lease with a term of five years or less must comply with the above requirements with the exception that a subdivision certificate will not be necessary. A statement should be added to the plan indicating that the term of any lease MUST be five years or less.

Note 2  Any proposed lease of premises (boatshed, cafe, oyster shed etc) that will affect an unalienated Crown Title waterway will necessitate the preparation of a plan of subdivision to create a Crown First Title for a parcel encompassing the proposed site and upon which the lease of premises can be endorsed.

Note 3  The boundaries of the new lot(s) may be also be defined by GNSS co-ordinates in accordance with the provisions of the Surveying and Spatial Information Regulation 2012.

Lease of marinas and moorings etc

Marinas, yacht clubs and other maritime developments constitute a lease of land not premises. If the term of the lease is greater than five years it will constitute a subdivision and should be defined in a plan of survey in the manner set out above. Individual premises within the development (e.g. boardwalks, jetties, moorings etc) may then be sub-leased provided the site is adequately described either as a lot within the lease plan or by description in the sub-lease (e.g. pier No.2 and berths Nos. 18-24 incl.) with an annexed plan to provide the necessary dimensions.

The description in the Property Leased panel of the lease should refer to:

Sub-lease to ……………….. of premises comprising part of The Anchorage Marina, Port Stephens, comprising the kiosk, boardwalk, jetty and berths 1-10 inclusive and shown in the plan annexed hereto marked A,

Note  Leases of swing moorings, mooring posts, dolphins, jetties and other maritime structures also constitute leases of land (not premises). The site of these leases should be fully defined in a plan of survey in the manner set out above. All mooring posts etc should be connected by dimensions to Reference Marks placed in suitable locations along the shoreline.

Aquaculture leases

Section 180 Fisheries Management Act 1994 provides for the registration of Oyster Lease and other Aquaculture Leases under the provisions of the Real Property Act, 1900. Section 169 indicates that the Minister may require that the lessee prepare a plan of survey defining the leased area. All aquaculture lease plans must comply with the requirements for lease sites as set out above.

Local Government Area

Section 205 Local Government Act 1993 specifies the circumstances whereby lots below Mean High Water Mark form part of the adjoining Local Government Area. These include:

  • any land and water between the high water mark and low water mark of a foreshore
  • any land reclaimed from tidal waters
  • any land or water on the foreshore extending beyond the low water mark provided it is privately owned and/or has a structure erected on it.

Consequently, any new titles for lots in a plan meeting these criteria should adopt the Local Government Area identity of the parcel(s) immediately adjoining (above) the MHWM. The title for any other parcel of land that forms part of a bay or estuary below the high water mark should indicate the Local Government Area as UNINCORPORATED.

Note  The Parish/County reference of the adjoining parcel(s) will also be adopted for any new title that meets the LGA criteria specified above.