In brief - NSW Department of Planning, Industry and Environment – Crown Lands is currently focussing on addressing unauthorised development (in particular modular and storage pontoons) on foreshore Crown land and waterways. This article highlights some key requirements that landowners need to be aware of regarding waterfront structures on Crown waterways. 

Owners of waterfront properties who construct or alter structures on Crown waterways need to be vigilant in ensuring all the correct approvals and licences are obtained before doing so. 

Landowners and prospective purchasers also need to be aware of possible risks that exist for historical encroachments and development on Crown waterways. Over the last decade, the former Roads and Maritime Services began a process of addressing these types of encroachments on Sydney Harbour, and this approach looks set to be repeated more broadly across the state for development on Crown waterways.

Recently, the NSW Department of Planning, Industry and Environment – Crown Lands (the Department) has published a request to local councils titled Working together to address unauthorised development on foreshore Crown land and waterways

One of the key approvals generally required to authorise development is a development consent. 

Depending on the proposed works, sometimes a complying development certificate will be sufficient to authorise works. Owners of waterfront properties and prospective purchasers should consider whether a development consent already exists, whether it is required for any proposed works, or whether existing use rights might be available.

Owner's consent

Importantly, before consent can be granted to a development application that relates to Crown land, owner's consent must be obtained from the Department. 

The requirement to obtain owner's consent prior to the grant of a development consent has been in the spotlight in recent years, as it is a jurisdictional precondition to the grant of consent. This applies in the same way to development on Crown land. Without owner's consent, questions about the validity of the consent will arise.

Licence to occupy foreshore Crown land and waterways

In addition to obtaining development consent (and owner's consent), a domestic waterfront licence issued by the Department is required for the use and occupation of Crown land below the mean high water mark for recreational infrastructure such as jetties, pontoons and boat ramps. 

This licence must be in place before commencing construction of such a structure.

The Department has raised a concern in its request to councils that many landowners are unaware of this requirement, as conditions of consent often do not include the requirement to obtain a domestic waterfront licence prior to the issue of a construction certificate.

In principle, assuming the Department's request is implemented, this will be similar to development consents that require a landlocked owner to obtain a right of carriageway over the neighbour's property for the access rights they need. In these situations, two options normally eventuate: the application will be refused if the right of access is not secured, or alternatively, the need for the right of access will be conditioned. 

Irrespective of whether or not the condition the Department seeks is included in the conditions of these types of development consents involving Crown land, authorisation is required to use Crown land under the Crown Land Management Act 2016 (NSW) (CLM Act). Section 5.21 of the CLM Act provides that this authorisation can be granted by way of a licence. If a licence is not obtained, section 5.26 provides that the Minister can grant a licence unilaterally to authorise the use or occupation of Crown land if that is currently occurring without authority. That licence binds the person even if it is granted without their consent.

Modular or storage pontoons

The Department has raised a specific concern in relation to modular or storage pontoons. 

Even if these do not require development consent, the Department's publication notes that it will not consent to the occupation of Crown waterways for this purpose given the negative impacts that these structures can have on public safety, visual amenity, seagrasses, fish habitat and navigation. 

Considerations for landowners and purchasers of properties

The process of obtaining the public law (development consents) and private law (licences) rights for these structures can be time consuming and involve costly reports given the interface the structures have with sensitive marine environments. A degree of forward planning may be required to avoid enforcement action.

In order to avoid risking regulatory action and/or prosecution for a breach of the CLM Act, adjoining landowners who occupy Crown land and waterways need to be aware of the requirement for a domestic waterfront licence, and start considering what is needed to obtain such a licence. 

Owners and purchasers of properties should be aware that certain types of structures will not be permitted.

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 2021.

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