In brief - Legislation amended in December 2013 to permit subdivision for leases of 20 years
Roads and Maritime Services in NSW is currently in the process of issuing new leases to its lessees. In particular, it is offering the option of either a three year or 20 year lease. The leases cover maritime structures such as jetties, slipways, boat houses, mooring piles, mooring pens, davits and pontoons.
Reliance on existing use rights over maritime structures
A number of lessees who already have maritime structures adjoining their land had been relying on existing use rights in relation to development approval for the maritime structures. In other words, they do not have a current development consent.
In the past, many structures which have been in existence for many years did not require planning approval, but have relied on the existing use rights.
Former legislation prevented granting of 20 year leases
At the present time there are a number of waterfront land owners who wish to enter into a twenty year lease and whose maritime structures rely on existing use rights. However, Roads and Maritime Services had been prevented from granting them a new 20 year lease due to the wording of the State Environmental Planning Policy (Sydney Harbour Catchment) 2005, which prohibited subdivision in the absence of an existing development consent.
To overcome this, an amendment was required to remove the prohibition and to permit subdivision for leases of twenty years where the maritime structures rely on existing use rights.
Legislative amendment for waterfront property owners with valid existing use rights
The State Environmental Planning Policy (Sydney Harbour Catchment) 2005 was amended on 6 December 2013 by the State Environmental Planning Policy (Sydney Harbour Catchment) Amendment (Subdivision in Waterways Zones) 2013 by the inclusion of a new clause 18A(3)(a1), which allows for subdivision if the development is the subject of an existing use right, as provided for by Division 10 of Part 4 of the Environmental Planning and Assessment Act 1979.
This amendment will allow waterfront property owners who have valid existing use rights to be able to take out a twenty year lease, rather than taking out a three year lease and having it renewed every three years. It will also create a more consistent approach to waterfront property owners who have a Roads and Maritime Services lease, particularly in the case of renewal of that lease.
Public must still be able to access foreshores and waterways of Sydney Harbour
It should be noted that consent for subdivision under clause 18A of the State Environmental Planning Policy (Sydney Harbour Catchment) 2005 is subject to the consent authority, namely Roads and Maritime Services, being satisfied that the subdivision will not result in any reduction in public access to the foreshores or waterways of Sydney Harbour.
If you have any questions in relation to this article, please contact Frank Krstic, Special Counsel at Colin Biggers & Paisley. I specialise in the granting and negotiation of Roads and Maritime Services domestic leases.
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 2019.