Aquaculture Lease Way of Access - Information Kit

• Aquaculture Lease Way of Access Form (PDF, 181.29 KB)

What is a way of access?

A way of access is a formal navigation way through an existing aquaculture lease or an unleased area to enable access to adjoining land or another aquaculture lease.  All areas approved for oyster aquaculture are mapped under the NSW Oyster Industry Sustainable Aquaculture Strategy (OISAS) as priority oyster aquaculture areas (POAA).

Who can apply for a way of access?

In accordance with section 175 of the Fisheries Management Act 1994, the lessee of an aquaculture lease, or the owner or occupier of any land adjoining an aquaculture lease, may apply to the Minister for a formal way of access to enable navigable access to the adjoining land or their adjoining aquaculture lease.

How is an application made for a way of access?

An application for a way of access is not an automatic process and the Minister is not obliged to grant a way of access simply because an application has been made.  For an application to be considered by NSW DPI, the applicant will need to complete the way of access application form (link provided above).

The completed application form must be submitted to:

NSW DPI
Locked Bag 1
Nelson Bay NSW 2315

What information is required in the application?

The application must include:

• Details of the location of the lease or land that will benefit from the proposal.
• The relationship that the applicant has to that land (e.g. owner, lessee, etc.).
• Existing and possible alternative means of access.
• A map or plan showing the dimensions and location of the proposed way of access.
• Any structures existing or proposed to be used to access adjoining lands such as a wharf, pontoon, ramp or slipway.
• The number and size of vessels expected to use the way of access and whether the depth of water at the site is adequate for the use of these vessels at low tide.

Are other approvals required?

If a way of access is granted, this will not authorise any structures or works associated with the way of access application. In approving a way of access, NSW DPI is authorising the adjustment of an aquaculture lease boundary.  If you also require approval for the construction of new structures, or the authorisation of an existing structure, you must contact your local Council to seek advice on any development approvals that may be required for these structures or works. If your proposal is located in a marine park you are advised to contact the local marine park office to discuss your structure and works.

Who is responsible for the costs associated with the establishment of a way of access?

The applicant is responsible for all costs associated with the establishment of a way of access.

If the way of access is through a current aquaculture lease, these costs may include:

• The cost of all work to be carried out by the lessee to establish the way of access.
• The cost of any compensation payable to the lessee for the loss of cultivatable lease area.
• The cost of the lease being re-surveyed and a new lease plan being generated. Note that lease surveys must be carried out by a registered surveyor and comply with the Surveyor General’s Direction requirements.
• The prescribed application fee for a lease part surrender, to remove the agreed way of access from the aquaculture lease.

If the way of access is through a POAA that is not currently being leased, these costs may include:

• The cost of all work to be carried out to remove any redundant aquaculture lease infrastructure present on the lease area.
• The cost of the lease area being surveyed and a new lease plan being generated, to remove the area of POAA that NSW DPI has agreed to. Note that lease surveys must be carried out by a registered surveyor and comply with the Surveyor General’s Direction requirements.
• If the way of access is greater than 15 metres wide, further compensation may be required under the provisions of the NSW DPI Policy O-072 Extinguishment of Priority Oyster Aquaculture Area.

How do I know if the proposed way of access is over a POAA that is not currently leased, or if it over a current aquaculture lease?

Before lodging an application for a way of access, please check the DPI Fisheries Spatial Data Portal to view all current and non-current aquaculture lease areas. NSW DPI can also confirm if the way of access is over a current lease or an available POAA and provide you with the relevant lease numbers.

You can contact the NSW DPI Aquaculture Administration unit via email at aquaculture.administration@dpi.nsw.gov.au.

How do I obtain the details of the lessee for the aquaculture lease that adjoins my land or lease area?

NSW DPI is bound by the provisions of the Privacy and Personal Information Protection Act 1998 and cannot provide personal information of a lessee without the consent of that lessee.

To identify the owner of a current aquaculture lease that may be subject to a way of access application, you can:

• Sign the contact details exchange consent section on the way of access application form. This consent will enable NSW DPI to pass on your contact details to the lessee, so that they may contact you.
• Once a completed way of access application form is received, NSW DPI will also seek consent from the lessee to provide their contact details to you. Note that the lessee is not obligated to consent to this.
• View the public register of NSW aquaculture permits. This register is a list of all current aquaculture permit holders and the leases that are authorised by their permits. The register is available for viewing by appointment only at your local Fisheries Office.  The public register will provide the name and address of the permit holder who operates the aquaculture lease adjoining your lease or land. In most instances, the permit holder and the lessee are the same entity however this is not always the case.

What happens if I cannot reach an agreement with the current lessee regarding a way of access?

NSW DPI does not mediate disputes between parties seeking to reach an agreement for the provision of a way of access.  If an agreement cannot be reached between the two parties, it is recommended that you contact the Office of the Small Business Commissioner and seek their assistance to resolve the dispute through mediation.  The Small Business Commissioner’s Office can be contacted on 1300 795 534 or online at we.assist@smallbusiness.nsw.gov.au.

If it can be demonstrated that an assisted mediation process has been unsuccessful, the Minister may then (and only then) intervene and make a decision about the application.

In determining a disputed way of access application, the applicant will be required to provide further information to NSW DPI, including:

• Documented evidence of the steps taken by the applicant to reach an agreement with the lessee including any mediation.
• An independent and commercially valid valuation of the lease area subject to the way of access for the remaining term of the lease.