138ALicence for strata of Crown land

138A Licence for strata of Crown land S. 138A(1) repealed by No. 79/1993 s. 6(a). (2) A licence under section 138 may be granted— (a) without being limited to a particular stratum; or (b) for a stratum of Crown land. (3) A licence for a stratum of Crown land must not be granted unless the person granting the licence— (a) has first consulted the council of the municipal district in which the stratum is located and, where a planning scheme applies to the stratum and the Minister administering the **Planning and Environment Act 1987** is the responsible authority, that Minister; and (b) is satisfied that— (i) the licensee can obtain reasonable access to and use of the land to be licensed; and (ii) a licence under this Act is not in force for the stratum; and (iii) the granting of the licence would not interfere with the exercise of rights under any other licence for a stratum or for land. (4) Examples of the matters which must be taken into account by a person authorised to grant a licence under subsection (3)(b)(i) include but are not limited to the following: (a) The fact that the stratum is to be used as a crossing over or tunnel under the surface of the land, for the purpose of passing between 2 pieces of land owned or occupied by the applicant for the licence; (b) The fact that the stratum is to be used as a crossing over or tunnel under the surface of land and that the licensee has obtained rights of access to neighbouring land sufficient to enable the licensee to use the crossing or tunnel, whether those rights are interests in land or are created by agreement or otherwise; (c) If the licensee proposes to erect a building or structure, the fact that provision has been made for the support of the building or structure, whether by the creation of proprietary interests or rights under an agreement, or in any other way. S. 138A(5) amended by No. 79/1993 s. 6(c). (5) Despite section 138(2), a licence over a stratum of Crown land may be granted even though the land is— S. 138A(5)(a) amended by No. 51/2016 s. 21. (b) proclaimed as a road or public highway under an Act; or S. 138A(5)(c) amended by No. 79/1993 s. 6(b). (c) reserved as a road under the **Crown Land (Reserves) Act 1978**; or S. 138A(5)(d) inserted by No. 79/1993 s. 6(b), amended by No. 12/2004 s. 161(2). if the person granting the licence is satisfied that the exercise of the licensee's rights under the licence would not interfere with the use of the road by the public and the stratum covered by the licence does not include the level at which the road is constructed. (6) Section 140 does not apply to a licence for a stratum of Crown land. (7) A licence for a stratum of Crown land— (a) is subject to any conditions determined by the person granting the licence, specified in the licence and relating to— (i) access to and use of the stratum; or (ii) support of any building or structure to be erected on the stratum; or (iii) the making and removal of improvements by the licensee; or (iv) the prevention of interference by the licensee with the exercise of rights under licence for other strata or other land; or (v) the prevention of interference by the licensee with the use of any road by the public; and (b) is subject to any other conditions that the person granting the licence determines and specifies in the licence; and (c) may be granted or renewed— (i) for a term of not more than 21 years; or (ii) if the Minister grants or renews the licence or approves its grant or renewal for a longer term, for a term of not more than 50 years. (8) Subject to subsection (6), the provisions of this Act applying to licences under section 138 apply to licences for a stratum of Crown land as if those provisions referred to a stratum of Crown land instead of to land. (9) Without limiting section 140F(2), a licence for a stratum of Crown land may be declared forfeit under that subsection if the Minister is satisfied that, because an interest right or power has ceased to have effect or no longer exists or for any other reason, the licensee cannot have reasonable access to or use of the stratum covered by the licence. (10) Any building or structure erected on, and any use or development of, a stratum of Crown land licensed under this section is subject to any Act, subordinate instrument within the meaning of the **Interpretation of Legislation Act 1984** or local law relating to approval of plans and specifications or to the control of land use, including, but not limited to, the **Planning and Environment Act 1987** and any instrument made under that Act. (11) The Governor in Council may, by Order published in the Government Gazette, authorise the occupation without licence of any stratum or strata of Crown land. (12) An Order made by the Governor in Council— (a) may be general or may be limited to a class of occupation, class of persons, class of land use or development, or class of circumstances; and (b) authorises occupation subject to any conditions stated in the Order. (13) Despite anything to the contrary in this section, but subject to subsection (14), a licence may not be granted for the construction or use of a footbridge, pedestrian way, vehicle bridge or link on a stratum of Crown land above, or partly above, the surface of the lands shown hatched on the plan in Schedule Three B. (14) Subsection (13) does not prevent the granting of a licence for the construction or use of a pedestrian bridge above Lonsdale Street, Melbourne, between the land known as 284 to 310 Lonsdale Street and the land known as 275 to 321 Lonsdale Street. No. 3709 s. 130. S. 139 substituted by No. 10011 s. 13, amended by No. 90/1989 s. 8(a).