Most alterations to the position of the MHWM or the original definition of the bank of a non-tidal stream will require the consent of the relevant authority.
Consents to tidal waters
A surveyor must obtain the consent of Crown lands, (for the Minister Administering the Crown Lands Act 1989) to the definition of the MHWM in any survey where the adjoining land below the MHWM is Crown land (cl.48 Surveying and Spatial Information Regulation 2012) and/or the boundary of the parcel comprises the landward boundaries of a Crown road or reservation fronting tidal water (cl.45(3) Surveying and Spatial Information Regulation 2012).
Note This includes boundaries defined by a MHWM which ceased to exist due to changes caused by construction, flood mitigation works, land fill, erosion, legislation or a combination of these ('former MHWM').
In most cases this consent will be obtained through Crown lands. The Director, and the General Manager, Crown Lands are the only persons currently authorised to give this consent. Applications for consent should be forwarded to:
The General Manager's Office
Crown Lands
Level 4, 437 Hunter Street
Newcastle 2300
PO Box 2185, Dangar 2309
T: 1300 886 235 F: 02 4925 3517
In all other cases cl.48 requires the surveyor to obtain the consent of any owner of adjoining land. The Crown is not the only owner of the land below the MHWM. Some of the other owners include:
- Roads and Maritime Services (all lands below MHWM in Sydney Harbour, Botany Bay, Port Hunter (Newcastle) and Port Kembla)
- Lake Illawarra Authority (all foreshores of Lake Illawarra and Chipping Norton Lakes)
- Olympic Co-ordination Authority (where tidal waterways were included in the land resumed)
- Sydney Harbour Foreshore Authority (including the former Darling Harbour Authority)
- 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).
Consent by Roads and Maritime Services
Unchanged boundaries
Any plan defining the position of the MHWM in the same position as that shown in the previous survey must have the consent of Roads and Maritime Services endorsed on the plan in the following form:
ROADS AND MARITIME SERVICES IN ACCORDANCE WITH PART 2, DIVISION 5 OF THE SURVEYING AND SPATIAL INFORMATION REGULATION 2012 APPROVES THE DETERMINATION OF THE MHWM BOUNDARY AS SHOWN HEREON.
ROADS AND MARITIME SERVICES FILE ............ ON ....../......./.......
Changed boundaries
a) No accretion claimed
If the variation in the position of the Mean High Water Mark was NOT caused by accretion, the following statement of consent should be added to the plan:
ROADS AND MARITIME SERVICES MARITIME, IN ACCORDANCE WITH PART 2, DIVISION 5 OF THE SURVEYING AND SPATIAL INFORMATION REGULATION 2012 APPROVES THE DETERMINATION OF THE MHWM BOUNDARY AS SHOWN HEREON.
ROADS AND MARITIME SERVICES FILE ........... ON ......./......./.......
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:
ROADS AND MARITIME SERVICES IN ACCORDANCE WITH PART 2, DIVISION 5 OF THE SURVEYING AND SPATIAL INFORMATION REGULATION 2012 AND SECTION 55N OF THE COASTAL PROTECTION ACT 1979 AS AMENDED, APPROVES THE DETERMINATION OF THE MHWM BOUNDARY AS SHOWN HEREON.
ROADS AND MARITIME SERVICES FILE ........... ON ......./......./........
Requests for consent should be forwarded to:
Survey and Spatial Information Branch
Roads and Maritime Services
Locked Bag 5100
Camperdown NSW 1450
T: 02 9563 8836 F: 02 9563 8800
Consent by Crown Lands NSW
Where the position of the M.H.W.M. has been redefined
a) No accretion claimed
Any plan re-defining the position of the Mean High Water Mark but not claiming any extra land by accretion will require the consent of Crown Lands to be endorsed on the plan in the following manner:
THE MINISTER FOR LANDS, IN ACCORDANCE WITH PART 2, DIVISION 5 OF THE SURVEYING AND SPATIAL INFORMATION REGULATION 2012, APPROVES THE DETERMINATION OF THE MHWM BOUNDARY OF LOTS ........ AS SHOWN HEREON.
CROWN LANDS DIVISION FILE............ ON ......./......./.......
b) Accretion included in the parcel
Any plan re-defining the position of the Mean High Water Mark that claims extra land by accretion must satisfy the provisions of s.55N Coastal Protection Act 1979. If these requirements are met the consent of Crown Lands will be endorsed on the plan in the following manner:
THE MINISTER FOR LANDS IN ACCORDANCE WITH PART 2, DIVISION 5 OF THE SURVEYING AND SPATIAL INFORMATION REGULATION 2012 AND SECTION 55N OF THE COASTAL PROTECTION ACT1979 AS AMENDED, APPROVES THE DETERMINATION OF THE MHWM BOUNDARY OF LOTS ............ AS SHOWN HEREON.
CROWN LANDS DIVISION FILE ............. ON ......./......./........
Where the position of the M.H.W.M. is unchanged
a) Consent 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 endorsed with the consent of Crown Lands is exempt from obtaining a fresh consent. A statement should be shown on the plan:
THE LOCATION OF THE EXISTING MEAN HIGH WATER MARK BOUNDARY AS SHOWN HEREON IS SUBSTANTIALLY THE SAME AS THAT SHOWN ON .................... (add plan number) ....................
b) Previous plan(s) not endorsed with Crown Lands 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 the following statement of consent will be shown on the plan.
THE MINISTER FOR LANDS, IN ACCORDANCE WITH PART 2, DIVISION 5 OF THE SURVEYING AND SPATIAL INFORMATION REGULATION 2012 APPROVES THE DETERMINATION OF THE MHWM AS SHOWN HEREON.
CROWN LANDS DIVISION FILE .............. ON ......../......./.......
Where the new plan is the first definition of the M.H.W.M.
In situations where a new plan includes the first definition of a Mean High Water Mark (e.g. a plan of subdivision of a previously unsurveyed Crown Reserve) Crown Lands Division, Department of Primary Industries has indicated that completion of the Crown Lands Consent panel on the plan will constitute consent to the definition of the M.H.W.M. No other evidence will be required.
Crown Lands water boundary approval checklist
To assist all surveyors in the survey of a water boundary and the preparation of the report to accompany the application for approval, a check list has been prepared by Crown Lands. The checklist should be completed and, together with all supporting information, included with all new applications to Crown Lands for consent to the definition of MHWM. See Crown Lands water boundary checklist (PDF 97KB). Applications for approval should be forwarded to:
The General Manager's Office
Crown Lands Division
Level 4, 437 Hunter Street
Newcastle 2300
PO Box 2155, Dangar 2309
T: 02 4960 5000 F: 02 4925 3489
All enquiries on Water Boundaries should be directed to the appropriate local district office of Crown lands.
Consents to non-tidal waters
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 add the following statement of consent to the plan.
THE MINISTER FOR LANDS, IN ACCORDANCE WITH PART 2, DIVISION 5 OF THE SURVEYING AND SPATIAL INFORMATION REGULATION 2012 APPROVES THE DETERMINATION OF THE BANK OF ............................AS SHOWN HEREON.
CROWN LANDS DIVISION FILE .............ON......../......../........
Where the position of the bank is unchanged
Specific consent from Crown Lands Division is not required where the position of the bank is unchanged. The following statement should be added to the plan:
THE LOCATION OF THE EXISTING BANK BOUNDARY AS SHOWN HEREON IS SUBSTANTIALLY THE SAME AS THAT SHOWN ON .......... (add plan number) ...........
Landward boundary of Reserve or Crown road
The definition of the landward boundary of a Reserve or Crown Road requires the consent of Crown lands. The following statement should be added to the plan:
THE MINISTER FOR LANDS IN ACCORDANCE WITH PART 2, DIVISION 5 OF THE SURVEYING AND SPATIAL INFORMATION REGULATION 2012 APPROVES THE DETERMINATION OF THE LANDWARD BOUNDARY OF ......................................... AS SHOWN HEREON.
CROWN LANDS DIVISION FILE ............. ON ......../......../........
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 (PDF 135 KB) and lodged in NSW LRS as a dealing. On completion of examination of the boundaries the plan and request should be directed to NSW Land Registry Services, NSW LRS Legal Services, Sydney for consideration. Sufficient evidence (statutory declarations etc) supporting the surveyors 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 Hallmann Paragraphs 13.71-13.83.
Reports to accompany applications for consent
A surveyor must provide a comprehensive report when seeking approval from the Minister administering the Crown Lands Act 1989, or other person authorised by that minister, or an adjoining owner to the determination of:
- the bank of a non-tidal lake or stream where the bed of the lake or stream is Crown land (cl.47 Surveying and Spatial Information Regulation 2012)
- the landward boundary of a reservation or Crown road fronting a water boundary (cl.45 Surveying and Spatial Information Regulation 2012), or
- a MHWM boundary that has changed or does not currently have such approval (cls.45 and 48 Surveying and Spatial Information Regulation 2012).
A surveyor must also provide a comprehensive report to the Surveyor General regarding a boundary determination where the boundary is the bank of a non-tidal stream which has moved since its previous survey definition (cls.45 and 50 Surveying and Spatial Information Regulation 2012).
The reports must include
- the basis and method of determining the location of the bank of the stream 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.