Up the creek...?

Edition 93 (March 2011) of Urban Design Forum had a number of articles on our urban relationship with water. It is interesting that The Public Land Consultancy, in its Terra Publica March-April 2011 publication asks ‘Where’s the property boundary?’, and notes that ‘another area of law where we’re waiting for public-spirited litigants to come forward is the law relating to riparian boundaries.

In the nineteenth century, many Crown Allotments in Victoria alienated as freehold were bounded by the centreline of an abutting watercourse. The Water Act 1905 revoked these Crown grants insofar as they applied to the waterway, and redefined the freehold boundary as being at the edge of the land ‘over which water normally flows.’ This provision survives as section 385 of the Land Act 1958. Notably, section 385 not merely confirms the revocation of the pre-1905 freehold status, but decrees that such land ‘must be taken always to have remained’ the property of the Crown.’

Where’s the property boundary?

All sorts of questions are raised in the article: what are the residual rights under the Land Act? what of subsequent subdivision? what if Crown Land is reserved for public purposes? does Native Title survive? what of cadastral boundaries defined by the sea? what if land has been swept out to sea? (it occurred in Aceh, Indonesia after the tsunami) – and with climate change upon us?…The article concludes, ‘As the waters rise, perhaps we’ll find out.’