Queensland property owners will need to understand the new laws for identifying the precise location of natural water boundaries for land introduced by the Natural Resources and Other Legislation Amendment Act 2010, which is expected to come into effect from May 2010.
The Natural Resources and Other Legislation Amendment Act 2010 will amend the Land Act 1994 and Survey and Mapping Infrastructure Act 2003 by creating new rules for locating tidal and non-tidal water boundaries at law. The amending Act will also change the meaning of "watercourse" under the Water Act 2000.
For tidal boundaries, the new rules will, consistent with a moratorium that has been in place since November 2005 against the registration of tidal boundary subdivision plans, halt claims by landowners to rights over beach areas and certain other coastal and riparian lands. For non-tidal boundaries, the rules will address some of the difficulties that have arisen in attempting to define the lateral extent of watercourses according to the heights of normal water flows, something that is particularly problematic in Queensland (and Australia generally) given many watercourses suffer long, dry spells and are inundated by seasonal and extraordinary floods.
From the commencement of the new rules, where land is bounded by a tidal boundary, a natural feature approximating the tidal boundary as shown in the current survey plan will be the tidal boundary at law. On registration of the first new survey plan after the commencement, the tidal boundary will be located according to the natural feature that was first identified as the tidal boundary in an old survey plan (for example, the toe of stable bank) or, in some cases, according to specific boundary location criteria which ensures that the boundary is landward of any tidal inundation. From registration of any further survey plan, the tidal boundary will continue to be located according to its position before the registration of that plan.
Importantly, from registration of the first new survey plan after the commencement of the new rules, the natural feature cannot be the intersection of a tidal plane with land, for example, "mean high water springs" or simply "high-water mark".
Generally, the State will own land that is on water side of a tidal boundary and any fixed right line tidal boundary.
For land boundaries formed by non-tidal watercourses, from the commencement of the new rules, a natural feature approximating the non-tidal boundary as shown in the current survey plan will be the non-tidal boundary at law. On registration of the first new survey plan, the boundary must be located according to specific boundary location criteria (such as the top of a bank, a particular line of change in a grade of a landform or, in some cases, a scour mark or depositional feature on the bank of the watercourse). From registration of any further survey plan, the non-tidal boundary will continue to be located according to its position before the registration of that plan.
For a boundary formed by a non-tidal lake, the boundary will be the outermost extent of the bed and banks of the lake.
Generally, the State will own land that is on the watercourse or lake side of a non-tidal boundary.
Water Act 2000
The meaning of "watercourse" under the Water Act 2000 will also change. A watercourse for the purpose of defining a land boundary may not be the same as a watercourse for the Water Act 2000. While in both situations the focus of the definition is on the physical features of the watercourse, rather than the height of a flow of water, under the Water Act 2000 the concept of the "outer bank" of a watercourse is adopted. This ensures that the State's jurisdiction in dealing with watercourses under that Act is not limited by a consideration of whether a particular watercourse has a "low" and "high" bank.
Implications of new rules
It is clear, then, that, in most cases, the key event that will cause a change in the location of a tidal or non-tidal boundary of a parcel of land will be registration of the first new plan of survey after the commencement of the new rules. Survey plans prepared after the commencement must, to the greatest extent practicable, locate water boundaries according to the new rules.
To fully understand the application of the new rules and their exceptions, a close examination of the original source documents for a parcel of land (for example, a deed of grant) and an understanding of surveying practices and legal principles relating to ambulatory boundaries will be necessary. Importantly, the new rules retain the common law principle that allows a boundary of land to shift if the natural feature forming that boundary shifts by gradual and imperceptible degrees.
The new rules will provide some certainty in defining the boundary between a landowner's "dry land" and the State's "wet land" as they will, in time, remove the need to locate boundaries by references to tidal planes and the level of flow of watercourses. However, locating boundaries by reference to physical features will, particularly for non-tidal watercourses, remain a difficult exercise that may require the assistance of expert advice.
While many landowners who have natural water boundaries are unlikely to notice any significant change in the location of their boundaries, there will obviously be instances where persons, including the owners of infrastructure or works on or near tidal and non-tidal bodies of water, could be significantly affected. However, the new legislation expressly excludes the right of any person to claim compensation or seek any other relief for any loss caused by the application of the new rules.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.