LawAnswers.com.au - Australia's #1 Legal Community

LawAnswers.com.au is a community of 10,000+ Australians, just like you, helping each other.
Ask a question, respond to a question and better understand the law today!
Join us, it only takes a minute:

NSW Property Law - Ignoring Fences to Private Property?

Discussion in 'Property Law Forum' started by Danny Hannon, 11 January 2015.

  1. Danny Hannon

    Danny Hannon Active Member

    Joined:
    11 January 2015
    Messages:
    5
    Likes Received:
    0
    I own land that has a mountain creek and also a mountain river flowing through it. The creek joins the river on my land.

    Quite often people fishing will walk straight past me and - ignoring the no trespassing signs - jump over my fence and head to the river.

    When I object they tell me that I can't stop them and that they are not trespassing as long as they are below the floodline. I often reply that that that only applies to navigable rivers - but I have no real idea and am only saying that to annoy them.

    Now the creek is only 2 metres wide and less than gumboot depth [0.30m] at normal flow you couldn't use any vessel and its not even deep or big enough to swim in. The river is approx. 15 metres wide and has a depth of .5 to 2 metres you couldn't use a boat in it but it is big enough for a canoe.
    Generally I don't stop canoeists but prefer it if they remain in the river and don't land on my property.

    My question is, 'Can people walk across my land to access the river?' Can they use the creek and walk down it to access the river? Can they ignore my fences and "No Trespassing" signs?

    I have no real idea where I stand with regards to property law, or what to say to them that would show them that they are incorrect [if indeed they are].
     
  2. Tracy B

    Tracy B Well-Known Member

    Joined:
    24 December 2014
    Messages:
    435
    Likes Received:
    70
    Hi Danny,

    I am not too familiar with this area of law but first, you need to ascertain whether the river is on your land; and second, you need to see if there are any right of ways for the public to access or enjoy. You can do this by checking your land title by contacting the Registrar General or (sometimes) your local council.
     
  3. Amanda E

    Amanda E Well-Known Member

    Joined:
    9 April 2014
    Messages:
    154
    Likes Received:
    20
    Hi Danny,
    I agree with @Tracy B - If there is an easement for right of way, then it is not trespass, if there isn't an easement and the property all the way to the creek/river is property that you own, then it may be worthwhile to erect some no trespassing signs. So you will likely need to check with NSW Land & Property Information and look at the plan for your property to confirm the boundaries and whether an easement exists.
     
  4. TheTideGuy

    TheTideGuy Active Member

    Joined:
    9 January 2015
    Messages:
    8
    Likes Received:
    0
    In Qld, bed and bank to the high water mark are crown land. As long as they don't litter or damage vegetation (or any damage that may cause erosion). They can access it legally (below the high water mark) as it is not yours.
     
  5. Danny Hannon

    Danny Hannon Active Member

    Joined:
    11 January 2015
    Messages:
    5
    Likes Received:
    0
    Hi and thanks for the replies, to answer a few queries:
    The river is on my land, the fence they are climbing is between the river and the road. The next fence is on the other side of the river, so the river is fenced in my land.
    There are no easements and rights of way for the public they have no real right to be on my land AFAIK.
    I have commercially available [around $50 each) bright No trespassing , keep out signs every 50 metres on a brand new 5 strand barb wire fence I erected [the floods took the other one].
    As an aside, I don't fish and really have no issue with people that are polite and ask just as long as they take out what they take in including cigarette butts, stubbies, chip packets, coke cans etc. i get sick of picking up rubbish left by morons who do not respect the land.

    But when people come at you pointing their finger and telling you that you can't stop them - it is their God given right - then I get a bit put out.

    If I invited mates into their back yard, walked right past them, used their swimming pool and left rubbish everywhere they would be understandably upset - its exactly the same thing just on a bigger scale.
     
  6. Danny Hannon

    Danny Hannon Active Member

    Joined:
    11 January 2015
    Messages:
    5
    Likes Received:
    0
    One other thing, I don't stop canoeists or people that have hiked in from upstream or downstream - I just try to discourage any access across my land - as long as they stay in the river and keep moving on I'm OK with that.
     
  7. cadamslaw

    cadamslaw Member

    Joined:
    6 February 2015
    Messages:
    1
    Likes Received:
    2
    Hi Danny,
    barring the existance of easements, fishermen can only legally access your land by walking up the river bed or creek bed below the high water mark - as distinct from high water flood levels.
    I had a large rural property with the same issue and numerous fishermen used to walk up the banks of the river below the high water mark. Most decent fishermen will seek consent first, but there are always the odd few that think they have the right to access a river across private land.
    Trespassing is actionable without the need to prove damages, so next time you suffer a trespass, take their number plates, film them and do whatever it takes to identify them so that you can commence proceedings, or your local police may be able to intervene.
     
    Tracy B and John R like this.
  8. APT

    APT Well-Known Member

    Joined:
    30 May 2014
    Messages:
    18
    Likes Received:
    3
    You know I still don't get how any living creature can declare land 'theirs'... Its bamboozled me for a long time now... The old feudal land system... I wonder how it came to that name... cause everyone feuds over it...

    Trespass is a funny one.... It very may well become a vessel for a right of way to be created... because if they get a good lawyer, they may claim that the river and access to it may require a right of way be created to ensure public access to the river.. who knows... Its a hard one... I like the Native Title way of living.. that mother earth owns us... we do not own her...
     
  9. Danny Hannon

    Danny Hannon Active Member

    Joined:
    11 January 2015
    Messages:
    5
    Likes Received:
    0
    Thanks cadamslaw, that is the answer I was looking for.

    APT, I paid for the right just like anyone else can. Get a big mothaf###ing loan, buy your shangri la then you can do what ever you want on your own land. Thats what I tell those that are not polite and want to argue the point when they really don't have any.
    Don't get me wrong, in a primordial way I agree with you but then we open our back yards, swimming pools, homes, cars, TV's and whatever else is made from raw materials to the same caveat. No admission fees for the MCG, the demise of the pay for privilege and western civilization; even the communist system recognised forms of ownership [albeit in a reduced form that suited the leaders of the day] so where does it stop. We have moved on from the hunter gatherer age unfortunately.
     
  10. Jono

    Jono Member

    Joined:
    30 March 2015
    Messages:
    1
    Likes Received:
    1
    Hi Danny

    See here;

    The NSW Fisheries Management Act 1994 No 38
    Part 2, Division 5, Section 38
    Right to fish in certain inland waters
    (1) A person may take fish from waters in a river or creek that are not subject to tidal influence despite the fact that the bed of those waters is not Crown land if, for the purpose of taking those fish, the person is in a boat on those waters or is on the bed of the river or creek.
    (2) The right conferred by this section is subject to the other provisions of this Act.
    (3) In this section, bed of a river or creek includes any part of the bed of the river or creek which is alternatively covered and left bare with an increase or decrease in the supply of water (other than during floods).

    So as long as the person is in the creek for the purpose of fishing, you can't kick them out and the creek you have described is more than big enough to hold fish. Though I understand most are just using the creek to access the river it flows into. However, if the fisherman are smart enough, then they could argue they are fishing in the creek if they aren't already.

    Personally I'm a fan of the Scandinavian model, the 'right of way' for all fisherman, hunters, campers, hikers etc on all lands, be it river, creek, lake, bushland or farmland. It's not 'your pool', it's everyone's. However, I don't know it would work so well in Australia, with our general lack of respect for our environment.
     
    Tracy B likes this.

Share This Page

Loading...