Plans affecting land below the Mean High Water Mark (MHWM) (SSIR 2017)

For all survey's completed in accordance with the Surveying and Spatial Information Regulation 2024, please refer to this page.

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 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 folio of the Register, or to define the sites of easements or leases located below the MHWM.

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 folio creation, it is necessary to prepare a plan of survey defining the proposed parcel or site. If a current folio of the Register does not exist, then 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 Transport for NSW (preceded by Roads and Maritime Services, NSW Maritime, the Waterways Authority, the Maritime Services Board and the Sydney Harbour Trust) (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 the National Parks and Wildlife Service (NPWS) as part of Ku-ring-gai Chase National Park).

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 section 23(G) Conveyancing Act 1919)
  • bear a consent by the relevant authority to any alteration in the definition of the MHWM
  • define the lot(s) by bearings and distances
  • as the corners of the parcel cannot be pegged, connect at least two corners of the site to reference marks placed along the waterfront
  • comply with all other requirements specified in the Surveying and Spatial Information Regulation 2017.

A new plan which comprises Crown Title Land should be accompanied by a CL45-11 document and have the Crown Lands approval panel on the Administration Sheet completed by a delegate of the Minister administering the Crown Land Management Act 2016. 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 section 5.54 Crown Land Management Act 2016. 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 Land Management Act 2016 (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 2017, and
  • be connected to two established permanent survey marks

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 section 88B instrument. The plan must be prepared in accordance with the requirements for plan 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. In all cases, the plan must be prepared as a deposited plan of survey in accordance with the requirements for deposited plans of Subdivision set out above.

Any plans for Acquaculture lease purposes should be comply with the relevant requirements as set out in the Surveyor Generals Direction No. 13 which can be found here. See also Agriculture Leases.

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 MHWM 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 Transport for NSW, Crown Lands etc. as to the position of the MHWM.

NOTE: 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. See Plans Exempt from subdivision certificate page.

NOTE:  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: The boundaries of the new lot(s) may also be defined by GNSS co-ordinates in accordance with the provisions of the Surveying and Spatial Information Regulation 2017.

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 sublease (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 Fisheries Management Act 1994 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 of the Surveyor General’s Direction no 13, which can be found here.

See also Agriculture Leases.

Local Government Area

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

  • any land and water between the high water mark and low water mark on a foreshore
  • land and water enclosed by:
    • a straight line drawn between the low-water marks of consecutive headlands to any body of water on the foreshores
    • those foreshores
  • land on the boundary of an area is taken to be in the area if:
    • it is reclaimed from tidal waters or
    • it is on the foreshores of the area and beyond low- water mark, and

it is privately owned and/or has a structure 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 Local Government Area criteria specified above.

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

Publication Date: March 2025