Having done several waterfront designs here and here, there are issues with regards to any structures on or adjacent bodies of water. No-one needs to be told that buying a waterfront property is a costly undertaking and has it own unique challenges. Often there are maritime structures involved in the purchase and there are many checks that are required to ensure your investment is protected.
Domestic waterfront licences (generally covering facilities such as jetties, boatsheds, berthing areas, boat ramps, slipways and pontoons on foreshore Crown land adjoining waterfront properties) are granted by Crown Lands for the use of submerged and tidal Crown land where there is direct access to Crown land.
As always, we advise our clients to seek advice from specialist lawyers experienced in this area to undertake due diligence. The NSW government actually has a helpful website here. If you are considering buying a waterfront property, it is critical to check that there is a valid lease or licence for the foreshore maritime structures. You don’t want to spend the money assuming you have an automatic right to the structures, so get solid legal advice.
Roads and Maritime Services is responsible for leasing domestic waterfront facilities on Sydney Harbour and its tributaries, Botany Bay, Newcastle Harbour and Port Kembla Harbour. Crown Lands is responsible for licensing domestic waterfront facilities in the remaining waterways in NSW. Crown Lands issues licences for approved structures on submerged Crown land below mean high water mark and up to three nautical miles off the NSW coast. Leases are for either 3 or 20 year terms with options.
RMS continues to issue new leases despite the scare campaign some time ago. In addition to the lease there can be a licence granted for a non-exclusive use over part of the areas affected.
The licence issued to landowners outlines the responsibility of the licence holder over the lifecycle of the structure, from initial granting of licence, ownership, care and maintenance, rent and payments, indemnity and insurance through to the removal of a structure.
Some items that you need to check about the foreshore structures include:
- Check for any notices in relation to carrying out repairs to the structures or for non compliance issues.
- Check there is a valid development consent in place.
- Check the cost of rent and its tariff.
- Check the foreshore structures or any part of them rely on existing use rights under the EP&A.
- Check for any special conditions attached to the lease. Sometimes these may contain restrictions on its use as well as environmental protection, continual maintenance or even removal.
- Check whether the structures are shared by other landowners or the public.
- Check whether access requirements are detailed or defined in the lease or licence.
- Check how long you are actually allowed to berth your vessel and what types or sizes of vessels can be berthed.
- Check the lease plan against what is built to ensure there are no illegal works.
- Check whether you are allowed to to purchase the reclaimed land adjacent or adjoining the structures – the RMS is currently considering this.
Purchasing a waterfront property on Sydney Harbour or any waterfront body is a costly endeavour and more complicated than a standard transaction. A little up-front knowledge goes a long way and it is critical you are aware of what questions you should be asking of your lawyer. We trust the above will help.
Do you have any comments on private waterfront structures? Let us know below.