Part 3Dealing with Crown land

Part 3—Dealing with Crown land Division 1—Minister's land 17—Land owned by the Minister Except as specifically provided, nothing in this Part derogates from or affects the Minister's power to deal with land owned by the Minister. Division 2—Dedication 18—Dedicated land (1) The Minister may, by instrument in writing, dedicate unalienated Crown land for a purpose specified in the instrument. (1a) The purposes for which land may be dedicated under this section include (without limitation) the management of land in accordance with a specified management plan. (2) The Minister must not dedicate land subject to a licence unless the Minister is satisfied that the dedication will not substantially detract from the licensee's use or occupation of the land. (3) If dedicated land is to be placed under the care, control and management of a person or body other than the Minister, the Minister must consult with that person or body before effecting the dedication. (4) The Minister may, by instrument in writing, alter the purpose for which land has been dedicated under this section. (5) The Minister must, before altering the purpose for which land has been dedicated under this section, consult with any person who has an interest in, or rights in relation to, the land. (6) The Minister must not grant an interest or rights in relation to dedicated land if the grant of the interest or rights would have the effect of preventing the land being used for the purpose for which it is dedicated. 18A—Classification as community land (1) A council may not resolve to exclude dedicated land from classification as community land in the circumstances described in section 193(4)(a) of the Local Government Act 1999 unless the Minister has consented, in writing, to the exclusion of the land. (2) The consent of the Minister under this section may be subject to such conditions as the Minister thinks fit and specifies in the written consent. (3) This section does not derogate from section 193(3) of the Local Government Act 1999. 19—Revocation of dedication (1) Subject to this section, the Minister may, by instrument in writing, revoke (in whole or in part) a dedication of land, whether the land has been dedicated under this or any other Act. (1a) If a Minister who is the custodian of dedicated land grants a lease in relation to the land, the Minister must not revoke the dedication under this section during the term of the lease without obtaining the consent, in writing, of the Minster who is the custodian. (2) If land subject to a dedication under this or any other Act has been granted in fee simple, the dedication can only be revoked by proclamation made by the Governor. (3) If land has been dedicated under another Act, the dedication must not be revoked under this section unless there is no other legislative power providing for revocation. (4) If, under this section, a dedication of land is revoked in whole or in part, the land, or that part of the land, reverts to the status of unalienated Crown land. 20—Care, control and management of dedicated land (1) The Minister may, by instrument in writing, place dedicated land under the care, control and management of a person or body specified in the instrument subject to such conditions as the Minister specifies in the instrument. (2) The Minister may, by instrument in writing— (a) vary or revoke the conditions on which dedicated land was placed under the care, control and management of a person or body; or (b) withdraw the land from the care, control and management of that person or body. (3) The Minister must not exercise powers under this section in relation to land that is under the care, control and management of a person or body except after consultation (where practicable) with the person or body. 20A—Revocation of dedicated land classified as community land If, in relation to dedicated land that is classified as community land under Chapter 11 Part 1 Division 3 of the Local Government Act 1999 (relevant land)— (a) the dedication of the relevant land is revoked under section 19; or (b) the relevant land is withdrawn from the care, control and management of a council under section 20, the classification of the relevant land as community land under the Local Government Act 1999 is taken to be revoked (and such revocation has effect for the purposes of the Local Government Act 1999). 21—Operation of instruments An instrument under this Division takes effect on the day specified in the instrument. 22—Lease of dedicated land (1) Subject to this section, a lease granted by a person other than the Minister in relation to dedicated land is of no effect unless the Minister has consented, in writing, to the grant of the lease. (2) The consent of the Minister under this section may be subject to such conditions as the Minister thinks fit and specifies in the written consent. (3) The Minister may refuse consent to the grant of a lease if the grant of the lease— (a) would detract from any existing public use and enjoyment of the land; or (b) would prevent the land being used for the purpose for which it was dedicated; or (c) would otherwise, in the opinion of the Minister, be improper or undesirable. (4) A Minister who is the custodian of dedicated land may grant a lease in relation to the land without obtaining the consent of the Minister under this section if the Minister who is the custodian of the dedicated land is satisfied that the grant of the lease— (a) would not detract from any existing public use and enjoyment of the land; and (b) would not prevent the land being used for the purpose for which it was dedicated; and (c) would not otherwise, in the opinion of that Minister, be improper or undesirable. (5) If a council is granting a lease in relation to dedicated land in accordance with section 202 of the Local Government Act 1999, this section does not apply to the grant of that lease if— (a) native title in the land has been extinguished or the council is satisfied that the grant of the lease will not affect native title; and (b) the lease will not cause any development (within the meaning of the Planning, Development and Infrastructure Act 2016); and (c) the council is satisfied that the grant of the lease— (i) would not detract from any existing public use and enjoyment of the land; and (ii) would not prevent the land being used for the purpose for which it was dedicated; and (iii) would not otherwise, in the opinion of the council, be improper or undesirable. 22A—Licences granted in relation to dedicated land The custodian of dedicated land may grant a licence in relation to the land if satisfied that the grant of the licence— (a) would not detract from any existing public use and enjoyment of the land; and (b) would not prevent the land being used for the purpose for which it was dedicated; and (c) would not otherwise, in the opinion of the custodian of the dedicated land, be improper or undesirable, (and for the avoidance of doubt the consent of the Minister is not required in relation to the grant of a licence in relation to dedicated land). Division 3—Disposal of land 23—Application of Division This Division applies to— (a) Crown land that is owned by the Minister; and (b) unalienated Crown land. 24—Minister may dispose of Crown land to which Division applies (1) Subject to this Act, the Minister may dispose of Crown land to which this Division applies by transfer or grant of the fee simple (whether on the payment of consideration or not). (2) The Minister must not dispose of land under this Division unless— (a) the land is being disposed of to a Crown agency; or (b) the land has been declared surplus; or (c) the land is being disposed of in fulfilment of a condition on surrender of a perpetual lease or section 78B lease relating to the land. 25—Disposal by transfer or grant of fee simple (1) A disposal of Crown land by transfer or grant of the fee simple must be by public auction, public tender or such other open competitive process as the Minister may determine, unless— (a) the land is disposed of to the owner of adjacent land to be merged with the adjacent land; or (b) the land is disposed of to the custodian, or former custodian, of the land and that custodian or former custodian has constructed or made significant improvements on the land; or (c) the land is disposed of to a Crown agency or a Commonwealth Crown agency; or (ca) the land is disposed of to a lessee, or former lessee, of the land and that lessee or former lessee has constructed or made significant improvements on the land; or (cb) the land is disposed of in fulfilment of a condition on surrender of a perpetual lease relating to the land; or (cba) the land is disposed of, in fulfilment of a condition on surrender of a section 78B lease, to a former lessee or a person nominated by a former lessee; or (cc) the land is disposed of on condition that the purchaser or donee enter into a Crown condition agreement; or (d) the land is valued at less than an amount prescribed by regulation for the purposes of this paragraph; or (e) the land is disposed of in circumstances prescribed by regulation; or (f) the Minister is satisfied special circumstances exist justifying disposal by private sale. (2) The Minister must not dispose of Crown land under this Division for less than the market value of the Crown's interest in the land or for no consideration, unless— (a) the land is disposed of to a Crown agency or Commonwealth Crown agency; or (ab) the land is disposed of in fulfilment of a condition on surrender of a perpetual lease relating to the land; or (b) the land is disposed of on condition that the purchaser or donee enter into a Crown condition agreement; or (c) the land is offered for sale by public auction or competitive tender and is disposed of for the highest bid or tender; or (d) the Minister and the Treasurer are satisfied special circumstances exist justifying disposal of the land for less than the market value of the Crown's interest in the land or for no consideration. (3) If, during a financial year, the Minister— (a) disposes of Crown land other than by public auction, public tender or other open competitive process on the basis that he or she is satisfied that special circumstances exist in accordance with subsection (1)(f); or (b) disposes of Crown land for less than the market value of the Crown's interest in the land or for no consideration on the basis that he or she, and the Treasurer, are satisfied that special circumstances exist in accordance with subsection (2)(d), the Minister must ensure that details of the disposal (including a description of the land, the market value of the Crown's interest in the land and the consideration, if any, for the disposal) are set out in the annual report presented by the Department to the Minister under the Public Sector Act 2009 in relation to that financial year. (4) If Crown land is disposed of under this Division to the owner of adjacent land to be merged with the adjacent land, the land vests in the owner of the adjacent land subject to such encumbrances, liens, interests, reservations, easements and trusts as were registered or noted on the certificate of title for the adjacent land immediately prior to the grant (other than encumbrances, liens, interests, reservations, easements and trusts that the Minister resolves should not extend to the land). (5) For the purposes of this section, the market value of the Crown's interest in land will be determined by the Minister on the advice of the Valuer‑General or a person who lawfully carries on business as a land valuer. 26—Disposal subject to Crown condition agreement (1) The Minister may dispose of Crown land by transfer or grant of the fee simple on condition that the purchaser or donee enters into a Crown condition agreement. (2) The agreement will be registered on the title to the land and, on being so registered, is binding on the owner, for the time being, of the land. (3) A Crown condition agreement entered into under this section may be varied or revoked— (a) by agreement between the Minister and the owner of the land and on payment by the owner of such amount as the Minister may require; or (b) by order of the Court made on the application of the Minister or the owner. (4) Subject to subsection (6), the Court may, on application by the Minister— (a) impose a fine on the owner of an amount not exceeding $10 000; or (b) cancel the title to the land, if satisfied that the Crown condition agreement has been breached. (5) The Court may, on cancelling a title— (a) order that the owner of the land or the holder of any registered interest in or caveat over the title be compensated for loss suffered as a result of the cancellation to such extent as the Court thinks fit (but the total amount payable under all such orders must not exceed the market value of any saleable improvements belonging to the owner on the land less costs incurred by the Minister in taking action under this section); and (b) make such other ancillary orders as it thinks fit. (6) The Court cannot cancel the title to the land unless satisfied— (a) that the owner has been allowed a reasonable opportunity to make good the breach but has failed to do so; or (b) that cancellation is necessary in order to prevent or arrest serious damage to or deterioration of the land. (7) Before taking any action under this section, the Minister must notify all persons who have a registered interest in or caveat over the land. (8) On cancellation of a title under this section, the land reverts to the status of unalienated Crown land. Division 4—Easements 27—Application of Division (1) This Division applies in relation to— (a) land subject to a pastoral lease; and (b) land that has not been dedicated under this Act but— (i) is land under the control of a Crown agency; or (ii) is land of a kind prescribed by regulation, as if such land were Crown land. (2) However, the Minister must not exercise powers or functions under this Division in relation to land of a kind described in subsection (1)(b) unless the relevant Crown agency, or other person or body having care, control and management of the land, has requested the Minister to exercise those powers or functions. 28—Minister may grant easements (1) The Minister may grant to any person an easement in, or over, Crown land for any purpose the Minister thinks fit. (2) Subject to this section, the Minister must not grant an easement under this section unless every person having an interest in, or rights in relation to, the land consents to the grant of the easement. (3) Subsection (2) does not apply to the grant of a service easement within the meaning of Part 19AB of the Real Property Act 1886. (4) If the Minister believes that the consent of a person having an interest in, or rights in relation to, the land has been unreasonably withheld and is satisfied that the interests of that person would not be prejudiced by the grant of the easement, the Minister may grant the easement despite the absence of that consent. (5) An easement may be granted under this section despite the fact that the characteristics of the easement do not satisfy all of the characteristics that must be satisfied for an easement to be created under the common law. (6) The Minister may require a person requesting the grant of an easement under this section to provide the Minister with any instruments, plans or other documents necessary for the purpose of granting the easement. 29—Short form of grant (1) If, in an instrument creating an easement under this Division, a short form set out in Schedule 6 of the Real Property Act 1886 is used to grant or create the easement, the instrument is, unless the contrary intention appears, taken to incorporate the corresponding long form of that easement set out in that Schedule. (2) If an instrument under this Division grants "a free and unrestricted right‑of‑way", the instrument is taken to include the words set out in Schedule 5 of the Real Property Act 1886 (so far as applicable). 30—Creation of easement by deposit of plan (1) Section 223LG of the Real Property Act 1886 applies in relation to a plan of Crown land deposited in the Lands Titles Registration Office as though it were a plan of division deposited under Part 19AB of that Act (and a reference in that section to the Register Book includes a reference to the Crown land register). (2) Without derogating from subsection (1), the Minister may lodge with the Registrar‑General— (a) a plan of Crown land showing— (i) easements intended to be granted by the Minister in or over the land; or (ii) easements to be created in or over the land in accordance with some other Act or law; and (b) an instrument (in a form approved by the Registrar‑General) relating to each such easement— (i) describing the land (if any) to which the easement will be appurtenant; and (ii) describing the land that will be subject to the easement; and (iii) setting out the terms of the easement. (3) An easement shown on a plan referred to in subsection (2) is taken to have been granted by the Minister on deposit of the plan by the Registrar‑General in the Lands Titles Registration Office (and the matters set out in the instrument lodged under that subsection in relation to the easement will apply to the easement so granted). 31—Effect of grant of easement Subject to this Act, an easement granted under this Division has effect as if it were an easement created under the Real Property Act 1886 (and that Act applies in relation to the easement as if it had been so created, subject to the modifications (if any) prescribed by regulation). Division 5—Leases 32—Leases granted by Minister (1) The Minister may grant leases in relation to unalienated Crown land. (2) A lease granted by the Minister under this Division may be a perpetual lease or any other form of lease. 33—Interaction between Division and lease The powers of the Minister under this Division in relation to a lease are in addition to, and do not derogate from, the provisions of the lease but where a provision of the lease is inconsistent with this Act, the Act prevails to the extent of the inconsistency. 34—Minister to fix terms and conditions (1) Subject to this Act, the terms and conditions on which leases will be granted by the Minister (including the intervals at which rent will be revalued) will be as fixed by the Minister. (2) The Minister will fix the rent to be payable under a lease based on the current market rent (unless the Minister is satisfied special circumstances exist justifying the fixing of a lesser rent). (3) For the purposes of this section, the current market rent will be determined by the Minister on the advice of the Valuer‑General or a person who lawfully carries on business as a land valuer. (4) In determining the current market rent for the purposes of this section, the value of any work carried out by the lessee in relation to the land or any other improvements on the land that do not belong to the Crown must not be taken into account. (5) The regulations may— (a) prescribe a minimum rent to be paid in relation to leases, or leases of a specified class; and (b) fix a date for the payment of rent under leases, or leases of a specified class. (6) Subject to subsection (7), a regulation under subsection (5) has effect despite any provision to the contrary contained in a lease to which the regulation applies. (7) A regulation under subsection (5)(a) does not apply to a lease granted before the commencement of this section. 35—Waiver of conditions etc Despite any other provision of this Act or a provision contained in a lease, the Minister may, if satisfied that it would be reasonable in the circumstances— (a) waive a breach of, or compliance with, a condition of a lease unconditionally or subject to conditions; or (b) waive, reduce or remit an instalment of rent payable under a lease or allow an instalment, or part of an instalment, to be paid at a time other than that fixed by regulation in accordance with section 34 or specified in the lease. 36—Dealing with lease (1) Subject to subsection (2), if the Minister grants a lease under this Division, the interest of the lessee cannot be assigned, transferred, mortgaged, sublet or otherwise dealt with without the consent of the Minister. (2) The interest of the lessee under a perpetual lease may be mortgaged without the consent of the Minister, unless the Minister holds a mortgage over such interest. (3) If a lessee transfers or assigns his or her interest under a lease granted under this Division— (a) all accrued and accruing liabilities to the Crown pass to the transferee or assignee; and (b) any such liabilities that had accrued before the date of the transfer or assignment may be enforced against the transferor or assignor (who will be regarded as jointly and severally liable with the transferee or assignee). 37—Surrenders (1) A lease can be wholly or partially surrendered with the consent of the Minister and, subject to subsection (2), the consent of all persons who have a registered interest in, or caveat lodged over, the lease. (2) If the Minister believes that the consent of the holder of a registered interest in or caveat lodged over the lease has been unreasonably withheld and is satisfied that the interests of that person would not be prejudiced by the surrender, the Minister may accept the surrender despite the absence of that consent. (3) The surrender of a lease, or part of a lease, may be absolute or may be conditional on the granting of a lease or a fee simple title to the lessee or another person. (4) If the surrender of the lease, or part of the lease, is absolute, the land reverts to the status of unalienated Crown land. (5) If the surrender of the lease, or part of the lease, is conditional on the granting of a lease or a fee simple title to the lessee or another person— (a) an interest registered on, or caveat lodged over, the lease, or that part of the lease— (i) continues in force and extends to all land included in the new lease or title; and (ii) will be endorsed on the new lease or on the documents of title (as the case may require), unless the holder of the interest or caveat consents to its discharge; and (b) any easements in or over the land included in the lease, or that part of the lease— (i) continue in force as easements to which the land is subject; and (ii) will be endorsed on the new lease or on the documents of title (as the case may require), unless the Minister determines otherwise; and (c) any easements appurtenant to the land included in the lease, or that part of the lease, continue in force as easements appurtenant to the land included in the new lease or title. 37A—Consent process for surrender of certain leases (1) If a lessee under a perpetual lease or a section 78B lease seeks to surrender the lease on condition that— (a) the land is disposed of by transfer or grant of the fee simple to the lessee or a person nominated by the lessee; or (b) a new lease of the land is granted to the lessee or a person nominated by the lessee, the lessee must first apply to the Minister, in such manner as the Minister thinks fit, for consent to the surrender in accordance with this section. (2) On receipt of an application under this section, the Minister must— (a) — (i) in the case of an application for consent to surrender a lease on condition that the land is disposed of by transfer or grant of the fee simple—determine whether or not to consent to the surrender and the terms on which the land may be disposed of (including the amount for which the fee simple of the land may be purchased and any other requirements of the Minister relating to the disposal); or (ii) in the case of an application for consent to surrender a lease on condition that a new lease of the land is granted—determine whether or not to consent to the surrender and issue a new lease of the land; and (b) give written notice of that determination to the applicant. (3) The applicant must, within 3 months after notice is given under subsection (2) or such longer period as may be allowed by the Minister, notify the Minister whether the applicant wishes to proceed with the surrender of the lease on the terms offered (and thereafter the applicant may surrender the lease in accordance with section 37 and any terms agreed with the Minister under this section). 38—Resumption of land (1) The Minister may, by notice in the Gazette, resume Crown leasehold land (in whole or in part). (2) Before a notice is published under subsection (1), the Minister must give written notice of his or her intention to resume to the lessee. (3) The resumption takes effect on a day specified in the notice in the Gazette, which must be a day falling at least 3 months after the date on which that notice is given. (4) If Crown leasehold land is resumed under this section— (a) the resumption operates to cancel the lease and the land subject to the lease reverts to the status of unalienated land; and (b) if part only of the land subject to the lease is resumed— (i) the Minister must grant a new lease in respect of the remainder of the land; and (ii) an interest that was, immediately before the cancellation of the lease, registered on the lease, or a caveat lodged over the lease— (A) continues in force; and (B) will be endorsed on the new lease, unless the holder of the interest or caveat consents to its discharge; and (iii) any easements in or over the remainder of the land immediately before cancellation of the lease— (A) continue in force as easements to which the land is subject; and (B) will be endorsed on the new lease, unless the Minister determines otherwise; and (iv) any easements appurtenant to the remainder of the land immediately before cancellation of the lease continue in force as easements appurtenant to that land. (5) The lessee is entitled to compensation for a resumption under this section. (6) The amount of the compensation will be determined by agreement between the Minister and the lessee or, in default of agreement, by the Court. (7) A determination of compensation under this section must give effect to the conditions (if any) of the lease that provide for compensation on resumption. 39—Abandonment (1) Subject to subsection (3), if the Minister is satisfied that Crown leasehold land has been abandoned, the Minister may cancel the lease. (2) For the purposes of this section, Crown leasehold land has been abandoned by a lessee if the lessee has ceased to occupy the land. (3) The Minister must not cancel a lease under this section unless— (a) the lessee has advised the Minister (whether orally or in writing) that he or she has ceased to occupy the land; or (b) the Minister has published a notice in a newspaper circulating throughout the State— (i) identifying the land subject to the lease; and (ii) specifying that the Minister intends to cancel the lease unless the lessee, within the period of 1 month after the date of publication of the notice, satisfies the Minister that he or she has not abandoned the land. 40—Penalties for late payment of instalments (1) The Minister may, by notice in the Gazette— (a) fix a scale of penalties to be paid by lessees for late payment of instalments of rent under the lease; and (b) vary or revoke a scale previously fixed under this section. (2) If the Minister fixes a scale of penalties in accordance with subsection (1), a lessee who is late in paying an instalment of rent is liable to pay the penalty (if any) applicable under the scale and any such penalty will be regarded as an amount that is due and payable under the lease. (3) The Minister may, for proper reasons, remit a penalty under this section in whole or part. (4) This section does not derogate from section 41. 41—Cancellation of lease on breach of conditions (1) The Minister may, if satisfied that a breach of a condition of the lease has occurred (including a condition as to the payment of rent), cancel the lease. (2) The Minister must not, however, cancel a lease unless satisfied— (a) that the lessee has been allowed a reasonable opportunity to make good the breach but has failed to do so; or (b) that cancellation is necessary in order to prevent or arrest serious damage to, or deterioration of, the land. (3) If the Minister cancels a lease under this section, the lessee or the holder of any registered interest in, or caveat over, the lease may apply to the Court for an order requiring the Minister to pay compensation for loss suffered as a result of the cancellation to such extent as the Court thinks fit (but the total amount payable under all such orders must not exceed the market value of any saleable improvements belonging to the lessee on the land less costs incurred by the Minister in taking action under this section). (4) The Court may, when making an order under this section, make such ancillary orders as the Court thinks fit. 42—Cancellation of lease obtained by false statement The Minister may cancel a lease if satisfied that it was obtained by false statement. 43—Notification of proposed cancellation Before a lease is cancelled under this Division, the Minister must give written notice to all persons who have a registered interest in, or caveat over, the lease. 44—Effect of cancellation On cancellation of a lease under this Division, the land reverts to the status of unalienated Crown land.