Public access to waterways on private land

Submitted: Saturday, May 26, 2007 at 13:47
ThreadID: 45914 Views:34285 Replies:7 FollowUps:16
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I have been under the impression for quite a while that it is ok to follow a river or creek over private land but decided to validate the theory. After many hours of searching gov depts today with little success, I found the info on a canoeing website www.canoe.org.au/ Here is the relevant text -

Access to Water in Australia

Here in Australian Canoeing office we are often asked where paddlers are permitted to paddle, especially in regard to trespassing on private land.

After endless discussions with government departments and the wonderful paddlers who happened to pop up in a variety of our state and territory government offices I was pointed in the direction of appropriate legislation or at least a starting point.

The consensus Australia-wide was that it is most important to recognise that the appropriate legislation can differ from state to state and in some cases from river to river to creek to stream!!!

In most cases on larger rivers you can expect the bed and banks of any navigable waterway to the point of the mean high-water mark to be crown land.

The 'high-water mark', or in some states/territories, the 'mean high-water mark', refers to the highest point at which water normally rises. This does not take into account times of flood. It is recognised in the various legislation that this point is not constant from year to year with the changes in the shapes of waterways.

What does all this mean?

In most cases the bed of the water body and the majority of its bank is governed by Crown Lands Acts or the equivalent in each state and territory. This makes it land owned by the government and therefore often accessible to the general public as long as they do not use private land to access the water.

In situations of very old freeholds, ownership/lease of land can extend to the centre of the waterway and landowners on either side may have jurisdiction over half the waterway each. On a limited number of waterways most notably in NSW, being on a river that passes through a farm could lead you to trespassing.

It would usually be interpreted that if a waterway can be entered through public access you can expect to be able to paddle the water and set foot on its immediate banks. If you wish to venture further up the banks you will require specific permission of the landowner or lessee.

In general the advice received from legal professionals within government departments was to check with the land titles office in your state or territory or the appropriate local council as to who owns the waterways you plan to paddle and if necessary contact the landowner/lessee for the appropriate permissions before setting out on the water.

Australian Canoeing will continue to investigate paddlers' rights and responsibilities Australia-wide with references to some of the more popular destinations. Keep an eye out at www.canoe.org.au for more information.

The acts noted below provide the basis for much of the information outlined in this article: Australian Capital Territory Lakes Act of 1976, New South Wales Crown Land Act 1989, Northern Territory Crown Lands Act, Queensland Land Act 1994, South Australia Harbours and Navigation Act 1993, Tasmania Crown Lands Act 1976, Western Australia Land Administration Act 1997, Victoria Land Act 1958.
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Some creeks traverse many small properties making it very hard to know if you have access.

How does it work with Aboriginal land?

Regards,

Brian
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Reply By: Mike Harding - Saturday, May 26, 2007 at 14:00

Saturday, May 26, 2007 at 14:00
I know of one section of a river in Vic where the river bed is owned by the freeholder.

You're not going to cause damage or play music at high volume are you? Just go where you want and if asked to leave... apologise for the intrusion and leave? I seriously doubt most people would get too upset to find a canoe passing by on their river.

Mike Harding
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Follow Up By: Shaker - Saturday, May 26, 2007 at 14:36

Saturday, May 26, 2007 at 14:36
Mike, I think you will find in Victoria that a property owner must provide access along a river/creek bank either by means of a gate or stile, that doesn't mean to say that they do, in fact some will try to bluff you that you are trespassing.
I believe that it is deemed to be a public reserve for 1 chain (approx 20m) above the high water mark.
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Follow Up By: Bware (Tweed Valley) - Saturday, May 26, 2007 at 15:43

Saturday, May 26, 2007 at 15:43
Mike,

I'm certainly not playing loud music, but if I hear the sound of 'duelling banjos' from the river bank I start to get worried ;-)))
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Follow Up By: ferris - Sunday, May 27, 2007 at 19:35

Sunday, May 27, 2007 at 19:35
Mike, you are indeed correct. There are a number of free hold rivers and streams in Victoria where the landholder, owns to the middle of the mean summer stream. It's ironic, the landholder owns the river, but not the water in it, and still needs a fishing licence to fish in his own river. Sorry Shaker, but on those streams the landholder is quite entitled to evict trespassers from the river.

Keep the shiny side up
Ferris
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Reply By: Alan H (Narangba QLD) - Saturday, May 26, 2007 at 14:19

Saturday, May 26, 2007 at 14:19
In England and New Zealand, they have a concept of the Queens Chain which is public access alongside a flowing river.

Australia probably inherited this law as well but I do not know about current status. Maybe some lawyer type of person on this site might respond with Australia's version.

As land tenure is a state function we probably have different status for each state.
When will we wake up and get rid of state governments?
AnswerID: 242529

Follow Up By: joc45 - Saturday, May 26, 2007 at 15:13

Saturday, May 26, 2007 at 15:13
In WA, there is a similar law. Not being a lawyer, I'm not sure how far this extends in relation to the size of the stream.
There certainly is a public access easement on a lot of rivers in WA, but I know that the property my father used to own in the SW, originally surveyed in the 1850's and later when re-surveyed, the boundary was found to extend to the middle of the river. Other parts of the property where a creek flowed had no easement; the creek just flowed through the property, so there was apparently no public access to that stream.
So what I am saying is that if an easement exists, it may only apply to major streams, but exclude creeks. And don't assume that all major rivers in WA have that easement - it may depend on when they were originally surveyed.
Gerry
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Follow Up By: Bware (Tweed Valley) - Saturday, May 26, 2007 at 15:59

Saturday, May 26, 2007 at 15:59
There seems to be so many exceptions to the general rule that there is no point in having a general rule!
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Follow Up By: Member - Duncs - Saturday, May 26, 2007 at 17:11

Saturday, May 26, 2007 at 17:11
The Queen's chain also applies along parts of the Murray in Victoria but not on the NSW side. I think. That is what allows houseboats to tie up at night.

Duncs
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Follow Up By: Axel [ the real one ] - Saturday, May 26, 2007 at 18:07

Saturday, May 26, 2007 at 18:07
Duncs , growing up on the Murray at Albury we were always told that the actual border between NSW and Vic was NOT the actual river but 1 chain / 22 feet on the Victorian side of the river , also that there is / was no such thing as a private stretch of river / beach , that all beaches and "natural" water courses must by law be able to be accessed by all.
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Follow Up By: obee - Saturday, May 26, 2007 at 20:20

Saturday, May 26, 2007 at 20:20
I remember reading that the Moore River north of Perth had the property boundery drawn right up the middle of the river back in the early days. This caused problems when it came to making laws for the consevation of the banks, ie keeping the animals off. Maybe they changed it; I dont know.

Owen
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Follow Up By: joc45 - Sunday, May 27, 2007 at 13:20

Sunday, May 27, 2007 at 13:20
Axel,
re your comments on beaches and no private stretches, I think Bjelke-Peterson changed that law in Qld to allow Japanese interests to own the beach right down to the waterline (the infamous Yeppoon was one resort, I recall). Or perhaps the law was changed so that is was still publically owned, but law prevented locals from access to certain public beaches with preference given to the resort owners.
Great years, those.
Gerry
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Reply By: Member - Boo Boo (NSW) - Saturday, May 26, 2007 at 15:11

Saturday, May 26, 2007 at 15:11
I went fishing in NT about ten years ago and went to the mouth of a small creek called Swim Creek (not far from the Mary River).

The guide said we couldn't go any further as it was private property. I now wonder if it is or not. I understand the property is a big buffalo station called Bamurra.

It would have been nice to go in and have a look. Regards Bob
AnswerID: 242534

Follow Up By: Gramps (NSW) - Saturday, May 26, 2007 at 15:44

Saturday, May 26, 2007 at 15:44
Bob,

Have you decided on Boo Boo or ODDMAN :)))))))
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Follow Up By: Member - Boo Boo (NSW) - Saturday, May 26, 2007 at 17:20

Saturday, May 26, 2007 at 17:20
Bloody hell Gramps, I was talking about the Creek not the land.

Anyway another reason for wanting to have a look is that it has 'luxury bush accommodation' for only $850 a night if you twin share.

Hey! Perhaps you might like to have a look LOL

Gramps I'll have to stick with boo boo, even #2 son calls me that now and againwhen we are out fishing.

Regards Bob
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Follow Up By: Gramps (NSW) - Saturday, May 26, 2007 at 17:30

Saturday, May 26, 2007 at 17:30
Hahahahahaha as long as you're enjoying yourself up there. Luxury bush accommodation - hmmmmmm - don't know if I like the sound of that :)))
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Follow Up By: Auntie - Saturday, May 26, 2007 at 20:02

Saturday, May 26, 2007 at 20:02
Swim Creek !! hmmm.....Swim is the last thing I'd be doing any where near the Mary River !!
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Reply By: D-Jack - Saturday, May 26, 2007 at 19:01

Saturday, May 26, 2007 at 19:01
I'm still not sure how floating on water can be taken to be trespassing, even if it is over a river bed. Surely someone can not own the space above the river bed, or the space above their land. What if I was to fly a kite over a fence, is that trespassing? or fish a float in a creek past a border fence? I would argue that the person whose river bed I was kayaking on did not own the water flowing above it, and I didn't step one foot on their land. Isn't that what they own?? Maybe I would be stealing their air if their property was upwind and blowing toward me and I was breathing it in....or filling my water bottle with water that had just flowed from their property, is that stealing water???

Have I made my point????

D-Jack
AnswerID: 242582

Follow Up By: Bware (Tweed Valley) - Sunday, May 27, 2007 at 02:26

Sunday, May 27, 2007 at 02:26
I like your line of reasoning and it gets my vote. However, if you argue that a person only owns the land, would that make it ok to traverse their land in a hovercraft because I never touch the ground? lol
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Follow Up By: Member - Gavin B (NSW) - Monday, May 28, 2007 at 09:56

Monday, May 28, 2007 at 09:56
Just a thought on whether you can own the 'space' above your land - I believe you can to an extent.

I'm pretty sure that for instance if a construction site next door to you sets up one of those large permanent type cranes during constuction (the ones that come in on semi's and are assembled), you are entitled to charge rent if it swings or is stored hanging over your land boundary.
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Follow Up By: Bware (Tweed Valley) - Monday, May 28, 2007 at 10:19

Monday, May 28, 2007 at 10:19
Good point, Gavin. I guess it's similar to trimming the part of the neighbours' plants that hang over your fence.
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Reply By: Member - extfilm (NSW) - Sunday, May 27, 2007 at 00:59

Sunday, May 27, 2007 at 00:59
look fellas.....
u guys are questoins that should not be asked. Simply, water is taxed so water is ours.......... do what u want to do.
i won't go any further but havefun
AnswerID: 242622

Reply By: PeteS - Sunday, May 27, 2007 at 03:46

Sunday, May 27, 2007 at 03:46
Hi Bware
An excellent point you raise and I will be interested in the follow up posts.
I have though about this a number of times as we paddle down some narrow creeks between various properties.
Petes
AnswerID: 242624

Reply By: hiab - Sunday, May 27, 2007 at 22:53

Sunday, May 27, 2007 at 22:53
maybe if you asked the cocky if it is ok ? bugger all the regs. go straight to the source.
AnswerID: 242802

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