44Land that is not agricultural land

#### 44 Land that is not agricultural land (1) For the purposes of subsection 37(3) of the Act, the kind of land that is not agricultural land at a particular time is land: (a) in relation to which one or more conditions in this section are met at that time; and (b) that, subject to subsection (2), is not being used wholly or predominantly at that time for a primary production business. > Note: Section 4 of the Act defines agricultural land as land in Australia that is used, or that could reasonably be used, for a primary production business. That definition, as modified by this section, applies in this instrument as well as in the Act (see section 13 of the Legislation Act 2003). (2) Paragraph (1)(b) does not apply in relation to land that meets the condition in subsection (13). Land whose zoning requires approval for primary production businesses (3) The zoning of the land requires any of the following (a government authority) to approve the use of the land for any primary production business: (a) the Commonwealth, a State or a Territory; (b) a Commonwealth, State or Territory body; (c) a local governing body. > Note: Land is agricultural land if the zoning of the land allows use for one kind of primary production business without approval, but requires approval for another kind of primary production business. (4) The land meets the following conditions: (a) the zoning of the land allows use for a primary production business; (b) an application has been made to a government authority for: (i) the land to be rezoned as land whose zoning does not allow use for a primary production business; or (ii) approval for a mine, oil or gas well, quarry, or other similar operation under a mining or production tenement, (a mining operation) to be established on the land; or (iii) approval to locate infrastructure relating to a mining operation on the land; or (iv) approval for waste from a mining operation to be stored on the land; or (v) an approval (including accreditation) for establishing or operating a wind or solar power station to be located on the land (whether on or beneath the surface); (c) the application is yet to be finally determined and has not been withdrawn or otherwise disposed of. > Note: Examples of infrastructure relating to a mining operation include infrastructure for processing the material extracted by the operation and accommodation for miners. Land used in relation to mining operations (5) The land is used wholly or predominantly: (a) for a mining operation; or (b) to locate infrastructure relating to a mining operation; or (c) to store waste from a mining operation. (6) An approval (that is not a mining or production tenement) of a government authority is in force allowing any or all of the following: (a) a mining operation to be established or operated on the land; (b) infrastructure relating to a mining operation to be located on the land; (c) waste from a mining operation to be stored on the land. (7) The land was acquired solely, or is used wholly or predominantly, to meet a condition of an approval mentioned in subsection (6) that relates to other land. Land used for wind or solar power station (7A) The land is used wholly or predominantly for a wind or solar power station located on the land (whether on or beneath the surface). (7B) An approval of a government authority (including accreditation) is in force allowing a wind or solar power station to be established or operated on the land (whether on or beneath the surface). (7C) The land was acquired solely, or is used wholly or predominantly, to meet a condition of an approval mentioned in subsection (7B) that relates to other land. Land used for protecting or conserving the environment (8) The land is used, under a law of the Commonwealth, a State or a Territory or a legally binding agreement, wholly or predominantly for the purposes of the protection or conservation of the environment. (9) The land is used wholly or predominantly for the purposes of a wildlife sanctuary or for rehabilitating animals. Land within industrial estates (10) The land is located within an area that has been approved by a government authority as an industrial estate. Small areas of land (11) The area of the land is 1 hectare or less. Tourism, education and outdoor recreation facilities (12) The use of the land has been approved by a government authority for providing facilities for tourism, outdoor education or outdoor recreation to the public. Primary production businesses relating to submerged plants and animals etc. (13) The only primary production business that the land is or could reasonably be used for is: (a) a business mentioned in paragraph (d) or (e) of the definition of primary production business in subsection 995‑1(1) of the Income Tax Assessment Act 1997; or (b) a business of cultivating or propagating under water (whether or not all of the time) plants, fungi or their products or parts; or (c) a business of maintaining animals under water (whether or not all of the time) for the purpose of selling them or their bodily produce. > Note: Paragraph (13)(a) covers the businesses of conducting operations relating directly to taking or catching fish or culturing pearls or other aquatic life.