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Tony, Michael and David Partners at ABKJ
Gold Coast Canal at Budds Beach

“Get Off My Water!”

With over 400 kilometres of constructed canal frontage on the Gold Coast, and an ever increasing number of recreational water users, the potential exists for conflict between property owners and people using the adjacent water ways.

Any waterfront property owners or regular water users reading this could probably relate a relevant story. The writer has personally observed an upset waterfront property owner throwing rocks at a kayak fisherman, fishing in the adjacent canal, encouraging him in an enthusiastic fashion to “get off his water”.

So who owns the water?

Like most things this is a subjective question. However, the starting point is that tidal waterways and established bodies of water are usually state owned, and that freehold property titles usually extend only to the high water mark. This means adjacent waterways and foreshore areas below the high tide mark are public areas, open to access and use by members of the public. In the example relayed above, the kayak fisherman was not exceeding his access rights and was entitled to be on the public waterway.

However, different areas can have different rules. For example, the master planned developments of Sanctuary Cove and Hope Island do include areas of waterways as common property areas in various body corporate schemes. Ephraim Island is similar. The bodies corporate for these areas can impose rules about access to these areas of water, including the restriction of access to members of the general public. Similarly, many Marina areas are governed by a state lease over the water areas, which does allow the marina operator to impose rules about access and use also.

The installation of private jetties and pontoons onto the public waterways can cause some confusion. Currently, the installation of a jetty or pontoon by a waterfront property owner needs prior Gold Coast City Council approval, with consent given to the installation by the Gold Coast Waterways Authority as a referring agency.

Without that approval, a property owner has no right to install such a structure. It is important to note that the approval given only gives right to the installation and use of the structure. It doesn’t grant any ownership rights over the water area surrounding the structure, and the approval by the relevant authority will be given in consideration of the provisions of the Coastal Protection and Management Act 1995. A guiding principle of this act is that the general public’s right of access to the tidal foreshore must be maintained. The structure is the property of the owner however, and the general public cannot access or damage the structure.

So where does that leave us?

Not surprisingly, as a general rule, mutual courtesy between property owners and water users is always the best policy. All parties should take care to:

  1. Obey applicable legislation and rules (including posted speed limits);
  2. Respect property and access rights;
  3. Respect privacy;
  4. Restrict noise and any damaging wake; and
  5. …don’t throw rocks.

Please contact our office if we can be of assistance with any queries regarding Property Law matters such as access, easements, or Body Corporate Law.

Call us on 07 5532 3199 or fill out a contact form today.