In brief - Don't assume you have an automatic right to use the foreshore maritime structures adjacent to the property
Many lawyers acting for vendors or purchasers of waterfront property overlook the need to check the existing leases or licences (or their currency) covering any maritime structures.
Foreshore structures under lease from Roads and Maritime Services
Roads and Maritime Services (RMS) administers more than 1,600 wetland leases covering foreshore structures in Sydney Harbour.
Some of these maritime structures include jetties, pontoons, boat ramps, boatsheds, landing platforms, harbour swimming pools, steps, ladders, davits, slipways, mooring pens and mooring piles.
Lease offers are for either 3 or 20 year terms with the option of the lessee having the lease registered.
Roads and Maritime Service's title in Sydney Harbour is to the high water mean mark.
RMS currently issuing new leases
Don't assume that there is a current lease in place. RMS is in the process of rolling out new leases, but due to the fact that there are approximately 1,600 leases to issue, these cannot be drafted simultaneously.
There may also be a licence granted in addition to the lease. The licence will be for a non-exclusive use and can cover such things as shared mooring piles, sewerage or drainage outlets into the harbour or public walkways.
Some leases over foreshore structures do not allow for assignment
Make sure you ask for a copy of any lease or licence in place in relation to the maritime structures.
Many practitioners acting for either the vendor or the purchaser often overlook this, particularly when there are standard replies to requisitions on title.
The majority of Roads and Maritime Service leases are on a yearly holdover provision and some do not allow for assignment, particularly if a lease was drawn in the past.
At the present time you cannot do a standard conveyancing search in relation to maritime tenures to ascertain whether there are any compliance issues like you can for other government departments or authorities.
Checklist: what you need to know about the foreshore structures on the property you are buying
• Have there been any notices served on the lessee in relation to carrying out repairs to the maritime structures or for non compliance issues?
• Is there a valid development consent in place?
• If the maritime structures predate the Environmental Planning & Assessment Act 1979, the lessee may be relying on existing use rights. Enquiries should be made as to whether the existing use rights have been used continuously or whether there has been abandonment, due to the passage of time.
• Review carefully any special conditions attached to the lease, as these may contain restrictions on usage, how vessels are to be berthed, measures to protect sea grass and the environment generally, the need for repairs in a defined time period or for structures to be removed due to lack of maintenance or repairs.
• Is there a shared occupancy agreement in place? You may find that you have to share the maritime structures with the adjoining landowner, either at the present time or some future date, if the adjoining landowner buys a boat. Shared arrangements can cover mooring pens and/or mooring piles.
• Is there a requirement that access be provided over the maritime structures to enable public access to the foreshore? This will be covered by a licence.
• Can you permanently or casually berth your vessel? There are sometimes restrictions that you may only casually berth. Check the definition of the lease as to the duration you can casually berth.
• Are there any restrictions on what type or size of vessel can be berthed in the mooring pen? The maximum dimensions of the vessel that can be berthed are recited in the schedule of the lease.
• Are there any unauthorised works? Check the lease plan against what has actually been built.
• Will you be responsible for maintaining or repairing the seawall? This could be very expensive.
• Is there a reclamation in situ and is this covered by the lease? At the present time RMS are contemplating allowing lessees to purchase reclamations adjacent to their freehold title.
• Can you store kayaks or canoes on any davit that may be in place? Check to ensure that this is allowed by the relevant provision of the lease.
• Check the terms of any shared occupancy arrangement as to financial contributions for ongoing maintenance that need to be arranged with the adjoining landowner.
Do you intend to sell a waterfront property in the near future?
If you are intending to put a waterfront property on the market, it would be wise to advise RMS at the earliest possible time when this is contemplated. Officers at RMS will need time to prepare a deed of surrender of the existing lease, a deed of consent to assignment or possibly a new lease.
These documents will need to be executed and handed over at settlement to allow continuation of access to the foreshore and the use of the maritime structures.
Make sure you can use the foreshore structures on the property you are buying
Presumably if you are buying a waterfront property, you are doing so not just for the view, but for the ability to use the maritime structures and to access Sydney Harbour. It is imperative that your lawyer does the due diligence properly and that you know the answers to the questions in the checklist above.
This will help you avoid nasty surprises and unexpected expenses in the future.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.