Property access

Existing access rights over land reserved under NPW Act

1. In some cases, a right of access via a road or trail may be considered an existing interest under the NPW Act, because access was lawfully granted by the Crown prior to creation of the national park or reserve. The existing interest provisions of the NPW Act provide that such a right is not affected by the reservation of land and that its existing terms continue for the period that it was originally granted.
2. Existing interest provisions in the NPW Act can apply to most reserved lands but not all - for example, they do not generally apply to land reserved as an Aboriginal area (this may need to be determined case-by-case and supported by legal advice).
3. Where relevant, NPWS will work with neighbours to confirm whether an existing interest exists. This will usually require a landowner to either:
   • provide evidence of a prior approval, permit, consent or similar granted by the Crown
   • provide, where no documented approval from the Crown is available, other evidence of prior or historical use of the road or trail that may be useful in NPWS's consideration of the matter.
4. If it is established that there is an existing interest that provides practical access to a property, then a separate access approval under section 149 or 153C of the NPW Act is not required. NPWS and the property owner may discuss and agree to other suitable arrangements that balance environmental and access objectives, including maintenance.
5. An existing interest is personal to the holder or holders of that interest and is generally not transferrable.
6. With the exception of easements that were in place prior to reservation, an existing interest does not continue in perpetuity but has a limited period according to its original terms. If no duration or expiry date is specified in an existing interest, NPWS may terminate an existing interest by giving the holder reasonable notice – what constitutes reasonable notice will depend on the circumstances.
7. The NPW Act provides for the extension of an existing interest at the discretion of NPWS and subject to conditions. However, when the extension of an existing interest is proposed, NPWS's preferred approach is to treat the matter as a proposal for an access approval under section 149 or 153C of the NPW Act (as this is the preferred means to document and confirm the access). NPWS will also consider the surrender of an existing interest and its exchange for a licence or easement at any time subject to the provisions of section 149 (for Ministerial land) or section 153C (for reserved land) of the NPW Act.
8. Where it is not possible to establish evidence of an existing interest which grants a right of access over a road or trail in a park to other land, then NPWS may consider an access approval under section 149 or 153C of the NPW Act.

Access roads in parks that were formerly Crown lands and forestry lands

9. Certain access roads, which provide access to residential properties, on former Crown land and forestry lands have been added to parks after 1996 under various 'Reservations Acts'. Those Acts revoked state forests and reserved the land as parks. Many of those access roads have not been reserved as park but remain as lands vested in the Minister under Part 11 of the NPW Act.
10. The Reservations Acts state (in most cases) that, for any roads on lands which are reserved, those roads remain vested in the Minister and may continue to be used for the purposes for which they were used immediately before the park's reservation (the 'continued-use permission').
11. The Reservations Acts also provide that, regardless of the status of a road and any continued-use permission, the Minister is not authorised to close any access road that comprises the only practical means of access to a property in private ownership (the 'non-closure requirement').
12. Where relevant, NPWS will work with neighbours to confirm the application of the access provisions under the applicable Reservations Act to any existing access road.
13. Where roads are confirmed as being subject to a continued-use permission under a Reservations Act, then separate access approvals under section 153C of the NPW Act are not required, and use of the roads may continue in the manner that was occurring prior to reservation of the land as a park. NPWS and the property owner may discuss and agree on other suitable arrangements that balance environmental and access objectives, including maintenance.
14. Where a road is confirmed as being subject only to the non-closure requirement, NPWS may consider whether granting an access approval under section 153C of the NPW Act is appropriate in the circumstances.

Access roads on acquired land

15. 'Acquired land' is land that has been acquired for addition to a park but has not yet been reserved as a national park or other reserve. It includes land that NPWS manages under section 146 of the NPW Act, e.g. flora reserves managed under agreements between the Department of Climate Change, Energy, the Environment and Water (DCCEEW) and the Forestry Corporation. 'Acquired land' is sometimes called 'Part 11 land' or 'Ministerial land' (because the land is vested in the Minister under Part 11 of the NPW Act until it is reserved).
16. If an access road is on acquired land, the Minister may grant an access approval (i.e. a licence) consistent with section 149 of the NPW Act.
17. In deciding whether to grant such a licence, NPWS should consider the intended future reserve category of the land under the NPW Act and any relevant plan of management or statement of management intent. The criteria set out in section 153C of the NPW Act, and related information about those criteria set out in this policy, may also guide NPWS's consideration but are not mandatory.

Recognition of access for other purposes

18. While existing interests under the NPW Act and access arrangements provided under other legislation do not need to be explicitly confirmed with an access approval under the NPW Act, this may not be sufficient for consent authorities (such as local councils) which are considering development applications on lands accessed through parks.
19. Consent authorities may require evidence of an appropriate access authority prior to deciding whether to grant consent to a development proposal (i.e. so that the council is assured that legal access exists to the property which is the subject of the development application).
20. In those circumstances, NPWS may consider situations on a case-by-case basis in determining whether to grant an access approval under section 149 or section 153C of the NPW Act.

21. Generally, NPWS may consider granting an access approval under section 149 or 153C of the NPW Act where either:
    • there is not sufficient evidence to establish an existing interest
    • other relevant legislation does not apply (e.g. the Reservations Acts for former Crown lands and forestry lands).
22. NPWS must follow the requirements in section 153C of the NPW Act when considering whether to grant an access approval, including the following:
    • whether the land is completely or partially surrounded by a park
    • whether there is any practical alternative access to the land
    • its consistency with the plan of management for the park
    • the environmental impact of the proposed access.

Access approvals must meet requirements of NPW Act

23. Granting an access approval under section 153C of the NPW Act is at NPWS's discretion, and must meet these requirements of the Act:
    • the other land must be completely or partially surrounded by the park.
    • NPWS must be satisfied that at least one of the following requirements applies (often only one requirement is relevant):
      • it is not practical for a landowner to obtain an alternative means of access, by land or water, because it is not legally or physically available
      • while satisfied that it is practical for the owner of the other land to obtain an alternative means of access, the proposed means of access will have a lesser environmental impact than the alternative means of access to the land
      • while satisfied that it is practical for the owner of the other land to obtain an alternative means of access, the proposed means of access will assist in more efficient management of the park and will have no greater environmental impact than that alternative means of access to the land.
    • the proposed access will not have a significant impact on the environment of the area adjacent to the proposed access
    • the proposed access is consistent with the relevant plan of management (only one requirement must be met):
      • if the plan of management is silent regarding the road, the overall intent and directions set by the plan should be considered
      • if there is no plan of management, access can be granted if it is consistent with the park's statement of management intent.
24. When granting an access approval, NPWS must consider (all requirements must be met):
    • the extent of, and legality of, any access that the owner (or any occupier) had to the land before that access became unavailable
    • any guidelines for property access (the content of this policy)
    • relevant information and assessments provided by the landowner (refer to paragraphs 39-42).

What does completely or partially surrounded mean?

25. NPWS may consider granting access rights to landowners when their property either:
    • is landlocked by a park, i.e. completely surrounded by a park
    • directly adjoins a park (i.e. has a contiguous boundary) and is partially surrounded by the park
    • whilst not contiguous with a park's boundary, is completely or partially surrounded by a park and is separated minimally from the park by other land (e.g. by a Crown road reserve, part of a state forest or part of another private landholding).
26. Where a park prevents practicable access to neighbouring land and where it may be difficult to demonstrate that the neighbouring land is, in a strict sense, completely or partially surrounded by the park, NPWS will not exclude those situations. For example:
    • a property may adjoin a park along one boundary only
    • a reserved road or other Crown land may separate the property and the park.
27. However, the outcome of any proposal will be determined on a case-by-case basis.
28. The landholder is responsible for obtaining approvals from any landholders whose land also needs to be crossed to access the property (either before or after reaching the park). NPWS may require confirmation that such approval has been, or is in the process of being, obtained, prior to deciding whether to grant approval under section 153C of the NPW Act.

What is practical alternative access?

29. Practical access includes all means of access that are legally and physically possible, including access via water.
30. NPWS does not consider that the cheapest or most convenient means of access is the only practical means solely because of its cost or convenience.

What does 'lesser environmental impact' mean?

31. Where there is more than one practical means of access, the proposed access and any alternatives should be assessed for environmental impact to determine which access route would have a lower impact. Environmental impact refers to effects on the wider environment, not just on the land reserved or acquired under the NPW Act.

How does the 'more efficient management' requirement work?

32. If a means of access is to be the most appropriate because it would help the park to be managed more efficiently, that must be supported through an environmental impact assessment that demonstrates the means of access does not have a higher environmental impact than any alternative.

Do plans of management recognise access arrangements?

33. Access approvals granted to property owners must be consistent with the purpose or intent of a park's plan of management, primarily in terms of the existence and use of the road.
34. However, it is not essential for a plan of management to specifically state that access to a particular property is or will be permitted.
35. An access approval (or existing interests) should be recognised in a new plan of management, or during the next planned update of an existing plan of management.
36. If there is no plan of management, an access approval through a park may be granted if it is consistent with the statement of management intent for the park.

Access approvals for roads or trails on acquired land

37. When deciding whether to grant an access approval for acquired land (i.e. land held by the Minister or land managed by NPWS under a section 146 agreement, e.g. flora reserves), it is not mandatory for NPWS to follow the requirements of section 153C of the NPW Act.
38. To maintain consistency and provide certainty, NPWS will follow the intent of this policy and the intent of the requirements under section 153C when assessing proposed access approvals for roads and trails on acquired land. NPWS will specifically apply the following requirements of section 153C (all requirements must be met):
    • whether the adjoining land is completely or partially surrounded by the acquired land that is managed by NPWS
    • whether there is any practical alternative access to the adjoining land
    • the environmental impact of the proposed access.

Landowners must apply and provide relevant information

1. Access applications can only be made by the owner of the relevant land, or a person in the process of purchasing the land (in that case any access approval will only take effect once the land has been transferred to the new owner).
2. Before applying for access, the landowner should contact the relevant local NPWS office to discuss their specific access circumstances. This enables NPWS to provide early advice on information and assessment requirements.
3. An expression of interest form is available for landowners to provide initial information about the access proposal.  
4. Landowners are responsible for providing relevant information about the access proposal to address the requirements of this policy, section 153C of the NPW Act and any applicable environmental impact assessments. NPWS will advise landowners about specific information and assessments required after reviewing the expression of interest form and/or discussing the proposal with the landowner.

What is the difference between an easement and a licence?

43. An easement is a property right attached to the land, and is either registered on the title or, if lot and deposited plan (DP) numbers have not been issued, in the General Register of Deeds.
44. An easement must be surveyed if there is a lot and DP number for the land, and the landholder must pay all the associated costs.
45. NPWS may consider granting an unsurveyed easement, such as a 'track in use' easement that is shown on an approved plan. For example, for a track in a highly erodible landscape where minor adjustments to the route of the track are likely to be needed over time.
46. An easement is the preferred access approval under section 153C of the NPW Act when it is clear that permanent access arrangements are required, and that no feasible future alternatives are likely. NPWS will consider the need for an easement on a case-by-case basis.
47. A licence is a right given to an individual or organisation. It is usually issued for a period of time (e.g. 5 or 10 years), and can be renewed. Because a licence is not attached to the land (i.e. it is not registered on the land's title), it expires automatically when a property is sold or transferred to another owner.
48. A licence is the preferred access approval under section 153C of the NPW Act when flexibility may be required to adapt to future access opportunities that could provide a better outcome (e.g. alternative, less environmentally impacting access is likely within a period of time), or where the access is for a recurring secondary use, e.g. a wet weather or seasonal access where an alternative practical access cannot be used during specific periods or environmental conditions.

What conditions go with an easement or a licence?

49. Easements or licences will generally contain essential terms and conditions, including the requirement for public liability insurance (e.g. for when maintenance works are required on an access road), indemnities, and rights of termination (for licences).
50. Easements and licences can be conditional or limited in terms of purpose or use, to tailor the access agreement to each situation and minimise environmental impact. Issues addressed in conditions for access routes may include:
    • limits on increasing the frequency of use by vehicles
    • limits on use in wet weather
    • limits on modes of transport
    • maintenance obligations
    • repairing damage caused by use of the access route.
51. Other conditions relevant to the circumstances of the proposed access may also be required as necessary.
52. Licences will usually be granted for 5 or 10 years. NPWS may agree to a longer term on a case-by-case basis.

NPWS can approve short-term access for other purposes

53. NPWS may issue a consent under the National Parks and Wildlife Regulation 2019 for temporary or irregular access through a park to private property. That is, where there is an alternative practical means of access, but this may not be trafficable at all times (e.g. due to floodwaters or high tide), or may not be trafficable to all vehicles (e.g. due to weight restrictions on a bridge on the principal access).
54. Issuing such a consent is at NPWS's discretion and may be subject to additional conditions on use and the transport of animals.
55. NPWS may also issue a consent under the National Parks and Wildlife Regulation 2019 to provide short-term access to property for other purposes, e.g. for emergency access after fires or floods, or to remove buildings damaged or destroyed in bushfires.

Reciprocal easements

56. Often NPWS is in the situation of requiring an access agreement across neighbouring property to access areas of park, while the owner of that property may also need access through a park to parts of their land. In this circumstance, a reciprocal easement may be warranted.
57. A reciprocal easement is an arrangement which benefits both parties - e.g. where a track goes over both a park and adjoining land, and both the landholder and NPWS require access along the same track. In that case, NPWS grants an easement over the park to the landholder and the landholder grants an easement over their property to NPWS.
58. NPWS will consider entering into a reciprocal easement subject to the provisions of this policy. The granting of a reciprocal easement will adopt the principles of procedural fairness and equity in relation to the sharing of costs and the burden and benefits provided to each party by the reciprocal easement's terms. Typically, costs are reduced in such circumstances, e.g. surveys and market valuations are shared. The terms of a reciprocal easement should be similar for both parties.

59. As necessary, NPWS will consult with neighbours regarding ongoing maintenance requirements. NPWS aims to establish shared arrangements where costs are allotted based on relative levels of use (e.g. where a road is used principally by NPWS and park visitors, then NPWS would bear most of the costs). Shared maintenance arrangements and cost-sharing will be agreed on a case-by-case basis.
60. For access roads covered by the Reservations Acts, section 188D of the NPW Act allows the authorisation of maintenance and improvement works on access roads by third parties where those works enable continued use of that road.
61. Such authorisations may also be granted for roads on acquired land or reserved land, where that use is authorised under section 149 or 153C, respectively.
62. Any maintenance requirements associated with new access approvals, including financial contributions, will be determined on a case-by-case basis and confirmed as part of the access approval.

63. Access approvals and road construction activities may affect native title interests. NPWS will comply with the future act provisions of the Native Title Act 1993 (Cth) when issuing easements and licences and doing road construction activities.
64. No compensation will be payable to the holder of an access approval if it is later determined to be invalid due to inconsistency with native title.
65. New access approvals will be subject to conditions requiring the holder of the approval to provide an indemnity in relation to any compensation payable to holders of native title interests resulting from issuing it and from the use of the subject land.

66. NPWS will recommend an access approval for an Aboriginal-owned park to the Board of Management for their decision.
67. NPWS will consult Aboriginal stakeholders before granting an access approval in other parks in the following circumstances:
    • a park covered by an Indigenous land use agreement (ILUA) – native title holders that are party to the ILUA
    • parks subject to other joint management agreements – relevant Aboriginal communities and organisations that are party to the agreement.

68. Information about leases granted under the NPW Act, licences granted under section 153D, and every easement or right of way granted under the NPW Act is publicly available on the register of leases, easements and rights of way.

Policy adopted February 2003 (formerly known as the Access to Inholdings Policy).
Policy last updated July 2022.

Scope and application

This policy applies to all lands acquired or reserved under the National Parks and Wildlife Act 1974 except for lands reserved under Part 4A of the NPW Act (unless the Board of Management for those lands has adopted the policy). However, NPWS staff can use the policy as guidance in their dealings with Boards of Management.

Objectives

This policy aims to:

• ensure that NPWS gives consistent, fair, legal and transparent consideration and advice about access through parks and other NPWS-managed lands to other properties
• ensure that NPWS fully considers the impacts of use of proposed access routes, particularly the impacts on natural and cultural heritage, and that arrangements for access are acceptable to the community and park visitors
• ensure that access arrangements are effectively administered, monitored and reviewed and are consistent with the NPW Act
• guide the granting of access approvals for properties adjoining or surrounded by parks and other NPWS-managed lands.

Definitions

Aboriginal-owned park means a park transferred to the ownership of a local Aboriginal land council and leased to NPWS for management under Part 4A of the National Parks and Wildlife Act 1974.

Access approval (or approval for access) means an easement or licence granted by NPWS to a property owner for accessing their property, or an existing approval or right ('existing interest') of an owner to use a road or trail in a park to access their property.

Access road means a road which traverses land reserved under the NPW Act. It includes (for the purposes of this policy) all roads, tracks, fire trails and other means of vehicle access in parks. Access roads are sometimes called 'roads of access'.

Acquired land means land acquired or occupied by the Minister under section 145 or 146 of the National Parks and Wildlife Act 1974, including land managed by NPWS under section 146 of the Act, but not land that has been gazetted as a national park or other reserve under the NPW Act. Acquired land is also referred to as Part 11 land or Ministerial land.

Board of management means a board established for an Aboriginal-owned park under Part 4A of the NPW Act. A board for an Aboriginal-owned park must have a majority of Aboriginal owners and is the manager of the reserve in place of the Secretary of the Department of Climate Change, Energy, the Environment and Water (i.e. in place of NPWS).

Easement means a right enjoyed by an owner of land over the lands of another. An easement is annexed to the land to which it provides a benefit and forms an estate in the land over which it is granted.

Existing interest (under sections 39, 47H and 187 of NPW Act) means any authority, authorisation, permit, lease, licence or occupancy of a park granted under the Forestry Act 2012, the Crown Lands Act 1989, the Crown Lands (Continued Tenures) Act 1989 or the Western Lands Act 1901.

Future act (in relation to native title) means an act that affects native title in relation to land or waters to any extent under section 233 of the Native Title Act 1993 (Cth).

General Register of Deeds means the historical NSW Government system established in 1825 to keep a record of deeds for all registered common law (now known as old system) land transactions. The Torrens Title System, introduced in 1865, replaced the register's function for recording property transactions and other land dealings, including easements over land.

Licence means an authority to do something which would be unlawful without that authority. A licence to go onto land for certain purposes does not operate or confer or vest an estate in that land on the licence holder.

Management trail means a trail managed by NPWS for fire management and other park management purposes – some management trails are not open to vehicular use by the public.

Owner means the person (or persons) or the organisation registered in an official record as the holder of the land (including a mortgagor). It includes the registered holder of any licence or lease, or the holder of any interest issued by a relevant authority.

Park means a reserve gazetted under the National Parks and Wildlife Act 1974, including a national park, nature reserve, historic site, Aboriginal area, state conservation area, karst conservation reserve, regional park or any land acquired by the Minister under Part 11 of the Act.

Park road means a road that is reserved as part of a park and is generally open to the public (although it can be closed for park management purposes). NPWS maintains park roads.

Reciprocal easement means an access arrangement which benefits both parties – e.g. where a track goes over both a park and adjoining land and both the landholder and NPWS require access along the same track. To effect the arrangement, NPWS grants an easement over the park to the landholder, and the landholder grants an easement over their land to NPWS.

Reservations Acts means a series of Acts made between 1996 and 2010 to deliver park reservations announced in various forest agreements. The Acts principally revoked state forests or parts of state forests and reserved them as parks under the National Parks and Wildlife Act 1974, and are often referred to in shorthand e.g. the 1996 Act, the 2002 Act:

• Forestry Revocation and National Park Reservation Act 1996
• National Park Estate (Land Transfers) Act 1998
• National Park Estate (Southern Region Reservations) Act 2000
• National Park Estate (Reservations) Act 2002
• National Park Estate (Reservations) Act 2003
• Brigalow and Nandewar Community Conservation Area Act 2005
• National Park Estate (Reservations) Act 2005
• National Park Estate (Lower Hunter Region Reservations) Act 2006
• National Park Estate (South-Western Cypress Reservations) Act 2010
• National Park Estate (Riverina Red Gum Reservations) Act 2010.

Statement of management intent (SMI) means a document which outlines management directions for a park prior to a plan of management being adopted.