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DEPARTMENT OF NATURAL RESOURCES AND MINES

INTEGRATED RESOURCE MANAGEMENT

HANDBOOK OF RESOURCE PLANNING GUIDELINES

GUIDELINE G9

WATERCOURSES AND RIPARIAN LANDS:

Tenure and Responsibility

Status: Operational Draft – for internal Departmental use

Keywords: watercourse, riparian, boundary, bed and banks

Approved by: Endorsed by: Issued by:

Tony Pressland Russell Priebbenow Geoff Edwards

General Manager Principal Adviser Manager, Land and
Catchment and Regional Cadastral Policy Regional Planning
Planning

Purpose of this Paper

This paper provides technical information to assist Departmental staff when dealing with matters
concerning (non-tidal) watercourses and riparian lands.

Although the paper is intended as a guide to the legislative situation at the date of writing, and has been
comprehensively checked by surveying and legal staff, it does not constitute legal advice and is issued
without prejudice. Some of the subject matter may be revised in the foreseeable future in the light of
continued reform in water, State land and many other fields of policy, notably after the remaining
sections of the Water Act 2000 have come into operation.

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1. INTRODUCTION

1.1 Non-tidal watercourses and their riparian lands are increasingly recognised as a special resource in terms
of both their environmental and economic value, to the owners of adjoining land and the wider
community. If their values are to be protected, those charged with protecting them need to be aware of the
regulatory and voluntary tools available and the circumstances in which they can be applied. The tools
depend upon land ownership and legislation. Guidelines G3 and G100 give more information about the
tools available.

1.2 Riparian lands serve a wide variety of functions. By acting as buffers for absorbing nutrients they protect
the quality of water within the watercourse and preserve its natural features. They provide a specialised
habitat of great richness for many species of flora and fauna as well as a dry season refuge and migratory
corridor, important for maintaining and distributing wildlife through the landscape.

1.3 To landholders, the floodplain is often their most fertile land and carries statutory ‘riparian rights’ to the
use of water for stock and domestic purposes.

1.4 What is a Watercourse?

1.4.1 Watercourses in Queensland are complex and varied in their form. They range from fast-flowing coastal
rivers, with beds and banks being (perhaps) well defined for much of their length, to sluggish inland
streams which meander through a series of waterholes for the greater part of the year and yet during the
wet season can become raging torrents. West of the almost imperceptible watershed between the Murray-
Darling system and the Lake Eyre basin, watercourses are extensively braided, extending in width over
many kilometres so that it is difficult to identify the principal channel.

1.4.2 The Water Act 2000 at Schedule 4 defines a watercourse and the bed & banks as follows:

“watercourse” means a river, creek or stream in which water flows permanently or intermittently–
(a) in a natural channel whether artificially improved or not; or
(b) in an artificial channel that has changed the course of the watercourse;

but in any case, only –

(c) unless a regulation declares otherwise–at every place upstream of the point…to which the
spring tide normally flows and reflows, whether due to a natural cause or to an artificial
barrier;…

“Watercourse” includes the bed and banks and any other element of a river, creek or stream confining
or containing water. The definition applies only to non-tidal streams.

“bed and banks” for a watercourse or lake, means land over which the water of the watercourse or lake
normally flows or that is normally covered by the water whether permanently or intermittently; but does
not include land adjoining or adjacent to the bed or banks that is from time to time covered by flood
water.

1.5 What are Riparian Lands?

1.5.1 Riparian lands are those lands which abut a watercourse or lake or through which a watercourse flows or
in which a lake is situated. A riparian owner or lessee is the holder of such land.

1.5.2 Riparian lands as a feature are often not well defined. For some purposes they are seen as being limited to
the narrow strip which may be fully or partially covered by water during or after seasonal rain. In other
uses the term refers to the full extent of land which is influenced by the watercourse. This latter concept
would include not only the lower seasonal floodplain, but also the alluvial plains which are subject to less
frequent flooding or no flooding at all. The width of riparian lands is variable and depends on the
topography and the surface run-off characteristics. It may be defined by soil, geology, vegetation density

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or species occurrence, or by its topography. Usually it will be the most productive area of a property both
for grazing and cropping.

1.5.3 The ‘riparian zone’ is a term used to describe riparian land which is closely adjacent to and more
obviously influenced by the watercourse. Interpretations as to what constitutes the riparian zone may
depend on the function being considered.

1.5.4 Within the riparian zone most land use actions taken by a landholder – grazing, tilling, fertilising, weed
and pest control measures, clearing – will have an impact downstream, affecting other landholders and the
community at large. The downstream effects may be manifest in the forms of excessive nutrient and
sediment loads resulting in toxic algae outbreaks, inadequate flushing, decreased water quality,
propagation of weeds, bank erosion, channel clogging, flooding and the destruction of fish. The effects
may be cumulative. There may be great impact in the delta areas and offshore. To be able to exercise their
own riparian privileges, downstream users are dependent on sympathetic land use by upstream
landholders.

1.5.5 Clearly, riparian lands are a valuable resource both to landholders and the community, the “arteries of the
landscape”. To allow them to perform their key ecosystem functions, that part of the land which directly
adjoins the watercourse normally should be retained in a natural state and access to it by animals and
works should be carefully controlled.

1.6 History of Statutory Control over Water and Watercourses

1.6.1 A Royal Commission in Victoria in 1884, chaired by Alfred Deakin, then Minister for Water Supply
in that colony, identified three fundamental options for allocating water:

 prior right or prior appropriation: that is, first come first served (in effect the American system
of water allocation);
 riparian right: that is ownership of land adjacent to a river gives the landowner the rights to the
water (in effect the English system of water allocation); or
 state ownership of rights: with subsequent allocation of some of those rights to private
individuals (in effect the system developed for use in colonial India).

1.6.2 Deakin recommended the third option giving the Crown initial ownership of ‘the right to divert and
control the flow’. This principle was adopted across Australia. Giving themselves clear ownership to
the flow (but falling short of ownership of the property), the States subsequently allocated the water
to individual irrigators, companies or urban water authorities, in much the same way as they allocated
land to selectors. This policy allowed orderly development including the development of major
irrigation schemes.

1.6.3 Over time the State’s sovereign legislative power has been used to regain proprietorship over various
sticks which make up the bundle of water resources—beds of watercourses, water in watercourses,
underground water, overland flow... In other words, common law has been replaced progressively
with statutory enactments vesting control of the resources in the State and establishing licensing
regimes to allow for continuing government control of what has been, and is still, regarded as a
public resource. Generally, stakeholders have acknowledged these extensions of the statutory regimes
as necessary to protect both existing entitlements and the community interest; and these changes and
the associated changes to common law rights occurred without compensation.

1.6.4 Significant milestones have included:

 the Elwood Mead ‘Report on the Control, Conservation, and Use of the Water Resources of
Queensland’ dated January 1910 and presented to Parliament, noting the desirability of taking
public control over water well before irrigation projects became widespread and noting the
particular urgency of controlling wastage from artesian bores. State regulation and control was
seen as essential for the ‘orderly and peaceable use’ of the waters of the State;

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 the Rights in Water and Water Conservation and Utilization Act 1910 which vested control of
water in watercourses and underground water in the State, abolishing the common law riparian
rights; it also retrospectively declared the bed and banks of all boundary watercourses to be the
property of the Crown and prohibited the further granting of such land;

 the Water Act 1926 and the Water Resources Act 1989 which continued these provisions;

 the Water Act 2000 which continued these provisions and further assumed power to control
overland flow and flow in water bodies entirely within one person’s land (previously exempt).
The text reads (s.19): “All rights to the use, flow and control of all water in Queensland are
vested in the State”. There follow various exemptions.

1.7 Statutes Classified into Function

1.7.1 Despite this widening statutory extension of ‘ownership’ by the State, for all practical purposes, the day-
to-day care of watercourses and their associated riparian land is left largely to the landholder. However,
this prerogative to manage is exercised within the framework of legislation. The legislation covers three
main functions:

 allocating the use and flow of water and the extraction of quarry materials;
 allocating tenure over the land within the watercourse and abutting on either side;
 exercising regulatory control over and within the watercourse and abutting land.

1.7.2 The first item, legislation governing allocation of water and extractives, is not dealt with further in
this paper. Also, for simplicity, some of the legislative measures which strictly speaking are tenure-
derived (such as clearing trees on leasehold land) are dealt with under the third item as if they were
regulatory in nature.

2. TENURE

2.1 Tenure of Boundary Watercourses

2.1.1 The term boundary watercourse refers to a watercourse which was adopted as the boundary of a property
at the time of the original freehold grant or issue of lease by the State. Land within a boundary watercourse
is unallocated State land and is administered by the Department of Natural Resources and Mines
(NR&M). Section 24 and schedule 4 of the Water Act 2000 refer. The bed and banks of a boundary
watercourse are and always have been the property of the State.

2.2 Tenure of Internal Watercourses

2.2.1 Where the watercourse flows within a property, the land within the watercourse carries the same tenure as
the property through which it flows. If the property is freehold, the land within the watercourse is freehold
also, or if the property is leasehold then the watercourse is part of that same lease.

2.2.2 In Queensland, the more significant watercourses usually form a boundary of a property, although some
are within properties. Of course, separate properties on opposite sides of a boundary watercourse may be
in a single ownership. In such cases the State still owns the land in the watercourse.

2.2.3 When an existing freehold property containing an internal watercourse is subdivided along that
watercourse, that is, along either one or both of its banks, the watercourse continues to be an internal
watercourse. Accordingly, it may continue in the private ownership of the subdivider unless:

 land within the watercourse is surrendered to the State or public reserve is created at the time of
subdivision; or

 a regulation under the Water Act 2000 is passed declaring that the bed and banks of the
watercourse become the property of the State.

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The first option commonly happens by assigning a lot on plan number to the watercourse then
showing it as public use land, which it becomes upon registration. S.51 Land Title Act 1994 refers.

If either of these options occurs, the bed and banks of the watercourse become the property of the
State, but the watercourse does not become a boundary watercourse within the meaning of the Water
Act 2000. (The rationale for this view is that if the land is subdivided and the ‘watercourse’ is adopted
as the boundary – i.e. the boundary is a natural feature – then the boundary is defined by the feature
adopted and not by the definition of ‘bank’ in the Act. The feature could be the high bank, or the low
bank, or even a middle bank. Subsequent surveys of the boundary should determine the location of
the feature that defines the boundary).

2.2.4 Alternatively, the bed and banks can be included in one or several of the subdivided parcels on either side.
In any case, the bed and banks must be dealt with and not left in the ownership of the previous owner
where that person no longer has an interest in land abutting on either side of the watercourse.

2.2.5 The above interpretation is not undisputed. Consideration is being given to clarifying the legislative
definition of the ‘bed and banks’.

The appended diagram, Tenure Along a Watercourse, illustrates tenure relationships.

2.3 Defining the Boundaries

2.3.1 Watercourses often form boundaries, and the bed and banks are therefore not contained within the title to
the adjacent land. In these cases the tenure of the land within a boundary watercourse is not the same as
the tenure of the abutting land. The location of the boundary line is therefore important. The definition of
‘bed and banks’ contained in the Water Act 2000 defines the boundary of the watercourse and, by virtue
of that, the common boundary of an abutting property.

A fundamental tenet of land boundary practice is that land is defined by its abuttals. Thus, where a
parcel of land is defined on one side by a watercourse, it is that watercourse which then determines
the (riparian) boundary of the parcel of land.

2.3.2 Because rivers vary greatly in their flow characteristics and topography, it is sometimes difficult to
identify the ‘bank’ for the purpose of defining the boundary of an abutting property. Furthermore,
because the location of the boundary in accordance with the definition of ‘bed and banks’ is determined
by the flow of the water within the watercourse rather than a visible ‘bank’ or land form, the precise
location of the bank which determines the boundary of the abutting property has become a matter of
contention. It is important to note that this boundary is subject to interpretation and the interpretation
carried out at the time of the original grant may carry no more weight than later interpretations.

2.3.3 At common law, and this applied to all boundary watercourses before 1911, abutting properties extended
to the middle thread of the stream (the rule of ad medium filum aquae). However, the Rights in Water and
Water Conservation and Utilization Act 1910 retrospectively declared the bed and banks of all boundary
watercourses to be the property of the Crown and prohibited the further granting of such land. The Water
Resources Act 1989 and Water Act 2000 have continued this prohibition (but current professional opinion
is that it does not continue to cause every internal freehold watercourse to revert to the State upon
subdivision).

2.3.4 The line of the boundary between a watercourse and an abutting property is said to be ambulatory, that is,
it may move with the watercourse as its banks slowly and imperceptibly accrete or erode by natural
processes. It is not a boundary which is fixed in position by surveyors’ pegs although when carrying out
surveys of the land, surveyors are required to determine its location. An ambulatory boundary ceases to
ambulate where the change takes place abruptly (for example as a result of a flash flood) or artificially (for
example as a result of reclamation work) in which cases the boundary remains in the position it was
immediately before such change took place.

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2.3.5 It is within these ambulatory boundaries that the land remains unallocated State land. The land
beyond those boundaries carries the relevant issued tenure, that is, usually freehold or leasehold, or it
may be held by the State in the form of a reserve, national park, State forest, road or similar. Of
course, if the abutting land has never been granted, leased or reserved it will remain unallocated State
land and there will be no defined boundary between that land and the watercourse.

2.3.6 NOTE: Defining boundaries of watercourses is a complex task. The above is a general guide only and
cannot be taken as legal advice or as necessarily delivering a precise opinion in a given case.

3. REGULATORY AND OTHER CONTROLS

3.1 General

3.1.1 Planning schemes under the administration of local governments and authorised by the Integrated
Planning Act 1997 are the main tool for regulating the use and development of land generally in
Queensland. But other legislation also applies. Acts which apply to the management and control of
watercourses include the Water Resources Act 1989, the Water Act 2000, the Land Act 1994, the
Vegetation Management Act 1999 and the Land Protection (Pest and Stock Route Management) Act
2002. All of these Acts are under the administration of the Department of Natural Resources & Mines.
The Environmental Protection Act 1994 and the Nature Conservation Act 1992 administered by the
Environmental Protection Agency also apply.

3.2 Controls Covering All Tenures

3.2.1 The Water Act 2000 is the principal Act and it specifies an ‘area of control’ under the Act, this being the
‘beds and banks and any other element of a river, creek or stream that confines or contains water’. Within
that area of control, under the Water Act 2000, landowners cannot destroy native vegetation, remove
quarry materials or excavate or place fill without a permit unless carried out under a necessary and
unavoidable part of some other activity that is permitted under a licence, permit, notice or other authority
given under the Water Act 2000 or Integrated Planning Act 1997. The Act also confers upon the chief
executive of the Department of Natural Resources & Mines the authority to order the removal from any
land, vegetation, litter, refuse or other matter which obstructs or may obstruct the flow of water or has an
adverse effect on the quality of water in a watercourse or the physical integrity of the watercourse.

This control applies to all watercourses that flow through or past the land of two of more owners or
occupiers. In effect both Acts ensure State control of watercourses.

3.2.2 The Land Protection (Pest and Stock Route Management) Act 2002 contains a further control (s.77)
which applies to all watercourses which form the boundaries of properties, both freehold and leasehold.
The Act places on the abutting landholder responsibility for the control of declared plants and animals
within the bed, banks and water content of the watercourse, out to the centreline.

3.3 Controls Over State Land

3.3.1 The Land Act 1994 applies to State (non-freehold) land. While it is not concerned with the use and flow
of water it is concerned with tree management on State land, including State land within a watercourse. A
permit is required under the Act for most tree clearing on State land. There are exemptions for some
activities, such as clearing declared plants in most circumstances.

3.3.2 Within State leasehold land, where watercourses abut or flow through State leasehold land the lessee
enjoys normal riparian privileges in relation to that watercourse.

3.3.3 Both the Water Act 2000 and the Land Act 1994 address the clearing of vegetation within such
watercourses. As a result there is some overlap of jurisdiction in addressing applications to clear
vegetation. For further information, refer to the Department’s website under ‘Vegetation Management’.

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3.3.4 Watercourses within or abutting State reserved land (national parks, State forests, trustee reserves etc)
match the situation with other land tenures; that is, land within a boundary watercourse is unallocated State
land and land within an internal watercourse is part of the reserve. For the clearing of native vegetation,
excavation or the placement of fill within the area of control, the Water Act 2000 is the relevant Act.
Beyond the limits of the watercourse within the reserve, the clearing provisions of the Land Act 1994
apply.

3.4 Control within Freehold Land

3.4.1 Comprehensive provisions under the Vegetation Management Act 1999 are in place to control clearing on
freehold land. The Act operates by declaring clearing to be ‘development’ for the purposes of the
Integrated Planning Act 1997. Most clearing requires a permit and there is a presumption that a permit
will not be given for clearing within specified distances of watercourses. For further information, refer to
the Department’s website under ‘Vegetation Management’.

3.5 Local Governments’ and Other Controls

3.5.1 Local governments and other statutory authorities may influence the activities which can or cannot be
undertaken within or adjacent to watercourses. For example, local governments may incorporate some
form of watercourse protection into local laws or planning schemes which would apply to all forms of
land tenure. The controls may prohibit building, earthworks or subdivision. Resource Planning Guideline
G10 refers.

River improvement trusts (which have been established for some specific rivers) may carry out works
within or restrict cultivation adjacent to watercourses.

3.5.2 Forest practices are effectively exempt from the need for clearing approvals under the Vegetation
Management Act 1999 and the Land 1994.

3.73.6 Summary Formatted: Bullets and Numbering

3.7.13.6.1 The sum of the regulatory controls described means that permits will usually be required under Formatted: Bullets and Numbering
both the Water Act 2000 and either the Land Act 1994 (leasehold) or the Vegetation Management Act
1999 (freehold) for clearing within or adjacent to a watercourse. For further information consult the
Department’s website.

4. RIPARIAN RIGHTS

4.1 Riparian Rights at Common Law

4.1.1 Traditional riparian rights conferred on a riparian owner or lessee limited rights to access and use water
within the watercourse without reference to an authority. This right was based in English common law. In
England there was no scarcity of water hence there was not seen to be a need to place water management
in the hands of an authority supported by statute law. Common law was sufficient to resolve issues in the
use of water between riparian owners. At common law, riparian rights may apply to both tidal and non-
tidal waters although more frequently to the latter.

4.2 Rights in Queensland Statute Law to Access Riverine Water

4.2.1 In Queensland the concept of riparian rights has been superseded by legislation. In Australia water has
been recognised as a scarce commodity and the rights of access to water are restricted to those prescribed
in the Water Act 2000 and unless a regulation declares otherwise for domestic purposes. A person may
take water in an emergency situation for a public purpose or for fighting a fire threatening to destroy a
dwelling house. The owner of the abutting land may take water for domestic purposes or watering stock
(not exceeding the number ordinarily depastured on the land). The owner may also, without a permit,
graze stock within the watercourse.

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4.2.2 Watering and grazing stock almost always causes erosion and pollution and harms the interests of
landowners downstream, so could contravene their common law rights. It also harms the interests of the
landholder, as cattle do not thrive on water polluted with cattle urine. This subject is covered more fully in
literature on integrated catchment management available from the Department or from Land and Water
Australia. See www.lwa.gov.au or www.rivers.gov.au/publicat/guidemanual.htm.

4.3 Public Access Within a Watercourse

4.3.1 The Water Act 2000 allows a riparian owner to take action against a person who trespasses upon the bed
or bank of the adjacent watercourse as if the person in question were a trespasser upon land in the
possession of that owner or occupier. It is clear, therefore, that the public has no general right of access to
or within an internal watercourse. Within a boundary watercourse passage by boat launched from a public
facility does not constitute trespass until a landing is made on private land abutting the watercourse.

5. SUPPORTING DIAGRAM

Tenure Along a Watercourse.

End of body of Chapter G9

Minor amendment made to 4.3.1 for clarity 10 Feb. 2005

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