Land Regulations 2016

The central concept is the fee unit. All fees in regulations 12 through 16 are expressed as multiples of a fee unit, not as fixed dollar amounts. For example, the fee for entry of an application for a licence is 1.4 fee units. The actual dollar amount for a given financial year is obtained by multiplying the number of fee units by the value of a fee unit fixed by the Treasurer under the Monetary Units Act 2004. The explanatory endnote gives the 2021/22 value as $15.03, but that figure changes annually and must be checked against the current Government Gazette. This means the compliance cost for an application can vary year to year without any change to the regulations themselves, which is efficient for the regulator but places a calcification burden on users. The second concept is that of prescribed forms. The regulations state that for certain actions under the Act, “the prescribed form is the form in Schedule” X. This language strongly implies that deviation from the form may invalidate the application or notice. The forms themselves contain fields for names, addresses, descriptions of land, declarations about encumbrances, and signature blocks. The surrender application form (Schedule 1) requires a declaration that the land is not subject to any mortgage or charge, and must specify whether it is subject to any lease or licence. It also requires evidence of prior publication of a notice of intention. The notice of demand to owner (Schedule 3) is a formal document requiring the owner of a building, structure, standing crop, or improvement on Crown land to produce a current lease, licence, permit, or other authority within 21 days, failing which the officer may apply to the Magistrates’ Court for a removal order. The unused road notice (Schedule 4) requires the municipal council to provide a table identifying the road by parish and location description. The concept of a licence document and residence area right are not defined anew in the regulations, but the regulations allow the Secretary to issue duplicates. For a residence area right duplicate, the Secretary must be satisfied that the original has not been lodged as security with any person, bank, corporation, or institution. This is a safeguard against fraud but also creates a factual inquiry hurdle for the applicant. The regulations do not prescribe any criteria for the Secretary’s satisfaction, leaving that to administrative discretion. The overall architecture is that the regulations are a toolbox: they provide the forms and fee schedule that must be used when dealing with Crown land under Part III, Part V, and other relevant parts of the Land Act. The forms themselves contain explanatory notes (e.g., who may surrender: registered proprietors of land in Schedule Two A of the Act, or municipal councils for land in Schedule Two B). But those notes are not part of the statutory rule; they are guidance only. The distinction is important for legal accuracy.

The regulations directly affect any person or entity who needs to interact with the Crown land administration system in Victoria under the Land Act 1958. This includes several distinct groups. First, applicants for licences and leases under section 29 of the Act: they must pay an entry application fee of 1.4 fee units and, if the licence or lease is granted, a preparation and issue fee (7.4 fee units for a licence, 24.1 fee units for a lease other than a residence area purchase lease, or 11.2 fee units for a residence area purchase lease). Holders of existing licences or leases who wish to transfer, assign, mortgage, sublet, or subdivide must pay 9.6 fee units. A licensee of auriferous land applying for a selection purchase lease pays 4.0 fee units. Second, persons seeking a Crown grant in fee simple: they pay 10.3 fee units for preparation and issue, and those applying for a declaration under section 362A(1) pay 13.7 fee units. Third, parties assigning an interest under a contract of sale: they pay 4.6 fee units. Fourth, registered proprietors of land in Schedule Two A of the Land Act (or municipal councils for Schedule Two B land) who wish to surrender their land to the Crown: they must use the prescribed forms in Schedules 1 and 2, comply with the publication requirements, and pay whatever fees (if any) are required under the Act itself (the regulations do not prescribe a separate surrender fee). Fifth, owners of buildings, structures, standing crops, or improvements on Crown land who receive a notice of demand under section 188A: they must respond within 21 days by producing a current authority, or face a court application for removal at their expense. Sixth, municipal councils that consider a road within their district is unused: they must notify the Secretary using the prescribed form in Schedule 4, with proper description and sealing. Seventh, any person who has lost a licence document or a residence area right document: they can apply to the Secretary for a duplicate, subject to payment of 4.0 fee units (for a licence duplicate) and satisfaction of the Secretary regarding non lodgement as security (for a residence area right). Eighth, practitioners such as lawyers, conveyancers, and surveyors who act for any of the above must be familiar with the correct forms and current fee unit values to avoid procedural rejection. Finally, the regulations indirectly affect the Victorian Government itself, which collects the fees and processes the forms. The compliance burden falls disproportionately on occasional users who may not have ready access to the current fee unit value or the exact forms. Regular users such as large land developers or councils may internalise the costs more easily.

The regulations impose no new duties beyond those already in the Land Act; they merely specify the mechanics. The key duties are procedural. An applicant for authority to surrender land must use the form in Schedule 1, which requires a declaration about encumbrances and details of any lease or licence. The applicant must also have published a notice of intention to apply (using Schedule 2) between 30 and 60 days before making the application. That publication duty creates an opportunity for third parties to object, and the applicant must lodge any objections with the Attorney General (the explanatory notes say “any person wishing to object should lodge a written objection with the Attorney General”). However, the regulations themselves do not prescribe what happens after objection; that is left to the Act. A person who receives a notice of demand under section 188A (using Schedule 3) is under a duty to produce a current lease, licence, permit, or other authority within 21 days. Failure to do so enables the authorised officer, the Secretary, or the committee of management to apply to the Magistrates’ Court for a removal order. The notice itself must specify the nature of the building, structure, standing crop, improvement, or other thing on Crown land, and must identify the land. The duty is strict: the owner must produce authorisation, or risk a court order that may involve removal at their expense. The regulations do not specify a right to request an extension or to contest the notice prior to court application, though such rights may exist under the Act or general law. A municipal council that believes a road is unused must give notice to the Secretary using the prescribed form in Schedule 4. The form requires a table identifying the parish and location of the road. That duty is a prerequisite for the Secretary to take any action under section 400 of the Act to close or dispose of the road. The regulations also confer rights. A person who has lost a licence document has a right to apply for a duplicate, and the Secretary “may” issue it on payment of the fee. The language “may” indicates discretion, but there is no stated ground for refusal other than payment. For a residence area right duplicate, the Secretary must be satisfied that the document has not been lodged as security; if that condition is met and the fee is paid, the Secretary again “may” issue it. The use of “may” rather than “must” leaves open the possibility of refusal on unstated grounds, which is a source of potential uncertainty for applicants. The regulations also create a right (or at least an entitlement) to obtain any deed or document prepared by the Department in connection with an application, grant, or registration upon payment of 24.1 fee units per document. This general fee provision (regulation 16) catches any document not otherwise specified, ensuring that virtually all administrative paperwork has a fee attached.

The Land Regulations 2016 contain no penalty provisions. They do not create offences, prescribe fines, or provide for enforcement mechanisms. All penalties for non compliance with the Land Act 1958 are found in the parent Act itself, not in this subordinate instrument. For instance, occupying Crown land without authority or failing to comply with a notice to remove an improvement may be offences under sections 173, 174, 188A, or other provisions of the Act, but the regulations only provide the form of the notice of demand; they do not add any penalty. The enforcement consequence that is closest to a penalty in the regulations is the escalation mechanism in Schedule 3: if the owner does not produce a lease, licence, permit, or other authority within 21 days, the authorised officer will apply to the Magistrates’ Court to order removal at the owner’s expense. The cost of removal can be substantial and acts as a de facto penalty, but it is a civil remedy rather than a criminal fine. There is no provision in the regulations for administrative penalties, infringement notices, or automatic forfeiture. The scheme relies on the existing court system for enforcement. This is typical for fee and form regulations; the substantive enforcement power rests in the Act. However, practitioners should note that using the wrong form or failing to pay the correct fee may lead to rejection of an application or notice, which could delay or prevent the exercise of a right under the Act. For example, if a municipal council submits an unused road notice that does not exactly match Schedule 4, the Secretary may refuse to accept it, potentially stalling road closure proceedings. Similarly, if a surrender application uses an unauthorised form, the Attorney General may treat it as invalid. The regulations themselves do not state the consequences of non compliance, but the use of “prescribed form” language typically means that the prescribed form is mandatory. The Monetary Units Act 2004 provides that fees calculated in fee units must be paid in the correct amount; underpayment or overpayment may require adjustment, but the regulations do not specify interest or penalties for late payment. The regulations also do not provide for refunds if an application is refused, which may be a trap for applicants. Enforcement of the fee payment is likely a matter of contract or statutory condition: the Secretary will not process the application until the fee is paid. There is no criminal liability for failing to pay a fee, but the administrative consequence is that the requested action will not occur.

The regulations sit squarely within the framework of the Land Act 1958 and are expressly made under section 413 of that Act. They are subordinate legislation and must be read in conjunction with the parent Act. For example, the surrender provisions in regulations 6 and Schedules 1 and 2 only operate where section 22C of the Act applies. Section 22C of the Act is not set out in the regulations, so a practitioner must refer to the Act to determine whether the land in question falls within Schedule Two A or Two B of the Act or has been declared applicable. The notice of demand under regulation 9 and Schedule 3 is expressly for the purposes of section 188A(2) of the Act; the Act will govern what happens after the notice is served and the 21 days expire. The unused road notice under regulation 10 and Schedule 4 is for the purposes of section 400(2) of the Act; section 400 of the Act sets out the process following the notice. The fees are calculated in fee units under the Monetary Units Act 2004. Section 7 of that Act requires the dollar amount to be determined by multiplying the fee units by the value of a fee unit fixed by the Treasurer. The value is published in the Government Gazette before 1 June each year. This means the regulations rely on an external index for their monetary effect, which is a standard technique for avoiding frequent amendment but introduces a cross referencing requirement. The regulations are also subject to the Subordinate Legislation Act 1994, which imposes a sunset date of 10 years after making. The regulations were made on 23 August 2016 and will sunset on 23 August 2026 unless re made. The Interpretation of Legislation Act 1984 (ILA) governs the construction of the regulations. The endnotes specifically note that, as for statutory rules made on or after 1 January 2001, headings, examples, diagrams, notes, and punctuation form part of the rule. This means that the headings in the regulations and the explanatory notes in the Schedules (such as the notes in Schedule 1 about who may surrender) may be legally relevant for interpretation. However, the endnotes also state that “any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of a Statutory Rule.” So the endnotes themselves (including the explanatory details about fee units) are not part of the law; they are guidance only. The regulations also interact with the Transfer of Land Act 1958 and other property statutes if the surrender or grant affects land under the Torrens system, but the regulations do not mention those interactions. The 2021 amendment (S.R. 107/2021) removed the definition of livestock and revoked regulation 11, indicating that the original regulations covered a matter that was later considered unnecessary. This suggests that the regulations are periodically streamlined. Practitioners should always check the current version and any amending rules.

The original Land Regulations 2016, S.R. No. 102/2016, were made on 23 August 2016 by the Governor in Council and came into operation on 28 August 2016. They revoked and replaced the Land Regulations 2006. The only amendment to date is the Land Amendment Regulations 2021, S.R. No. 107/2021, made on 31 August 2021 and commencing on 1 September 2021. That amendment made three changes: it revoked the definition of “livestock” in regulation 5; it revoked regulation 11 entirely (though the source does not disclose what regulation 11 originally contained, it is now gone); and it substituted the heading of regulation 5 from “Definition” to “Definition” (the heading text remained the same, but the amendment substituted it, likely to reflect the removal of the livestock definition). The table of amendments in the endnotes confirms no other amendments have been made. There are no amendments not yet in operation as of the version incorporating amendments as at 1 September 2021. The regulations are subject to sunset on 23 August 2026. The amendment history is thin, which suggests the regulations have been stable and uncontroversial. However, the removal of the livestock definition and regulation 11 may indicate that those provisions dealt with matters no longer regulated, such as perhaps stock grazing on Crown land, which may now be covered by other instruments or abolished. Practitioners who rely on an older version of the regulations should ensure they have the current 2021 version. The revocation of regulation 11 is significant because any person who had rights or obligations under that regulation after 1 September 2021 must look to other provisions or the Act itself. The regulations have not been amended by any subsequent Acts or rules. They remain in their original form except for the 2021 amendments. The endnotes also note that the regulations were made under section 413 of the Land Act 1958, which is the general regulation making power. No other authorising provisions are cited. The sunset date of 10 years from making is standard for Victorian subordinate legislation, meaning that by August 2026 the Government must either remake the regulations (possibly with amendments) or allow them to lapse, which would leave a gap in the fee schedule and prescribed forms. The amendment history shows that the regulations have been reviewed at least once within five years.

The text of the Land Regulations 2016 does not cite any litigation. No case references appear in the regulations, the endnotes, or the table of amendments. Because the regulations are procedural and fee setting, they are not commonly litigated in their own right. Most disputes about Crown land in Victoria would centre on the substantive provisions of the Land Act 1958, with the regulations being mentioned only incidentally in relation to whether the correct form or fee was used. For example, a challenge to a notice of demand under section 188A might involve an argument that the notice did not comply with the prescribed form in Schedule 3, but the regulations themselves would not be the subject of a standalone judicial review unless there were an allegation of ultra vires (e.g., that the fees are not authorised by the Act) or procedural unfairness in the Secretary’s discretion to issue duplicates. The regulations are relatively recent (2016) and have been stable since the 2021 amendment. There is no known reported case that turns on the interpretation of these specific regulations. The absence of litigation history does not mean the regulations are immune to challenge; it may simply reflect that the stakes are usually low enough that parties do not litigate. However, for a thorough compliance professional, the lack of caselaw means there is little judicial guidance on points such as whether the Secretary’s power to issue a duplicate is truly discretionary or must be exercised on satisfaction of the stated conditions, or whether the use of an old (pre 2016) form would be accepted as substantial compliance. Any future litigation would likely involve questions of vires (e.g., whether a fee prescribed exceeds what the Act allows) or procedural fairness (e.g., refusal of a duplicate without reasons). The regulations also do not provide for merits review of the Secretary’s decisions; an applicant denied a duplicate would need to seek judicial review or relief under the Administrative Law Act 1978. The lack of specific appeal provisions in the regulations means that the general law of judicial review applies. Practitioners should be aware that any decision made under these regulations by the Secretary or a delegate may be reviewable on grounds such as error of law, unreasonableness, or breach of natural justice, but the regulations themselves do not create any additional review rights. This is a gap that could be relevant if the Secretary’s discretion is exercised arbitrarily. In short, there is no litigation history on the record, but the potential for future disputes exists, especially as the sunset date approaches and the regulations may be remade with changes.

Several traps await the unwary. Fee units are not static: the dollar equivalent changes every financial year. The explanatory endnote gives the 2021/22 value as $15.03, but using that figure in later years results in underpayment or overpayment. The regulations do not include a grace period or transitional provision for fee changes; an applicant must check the current Government Gazette value published before 1 June of the preceding year. Calculated fees may be rounded to the nearest 10 cents, but the rounding direction is not specified as upward or downward; the Monetary Units Act 2004 should be consulted. The forms in the Schedules are prescribed, meaning any material deviation may invalidate the application or notice. For example, the surrender application form in Schedule 1 requires a declaration that the land is not subject to any mortgage or charge. If the land is subject to a mortgage, the form does not provide a field to list it; the applicant may need to address that under the Act separately. The notice of intention to surrender (Schedule 2) requires publication in a newspaper, but the regulations do not specify which newspaper; presumably one circulating in the area. The 30 to 60 day window is strict. The notice of demand (Schedule 3) requires the person serving it to identify themselves as an authorised officer, a person authorised by the Secretary, or a person authorised by the committee of management. If the person is not properly authorised, the notice may be invalid. The 21 day response period begins from service, not from the date of the notice. Service requirements are not in the regulations; they are in the Act or the Interpretation of Legislation Act. The duplicate residence area right provision (regulation 8) requires the Secretary’s satisfaction that the document has not been lodged with any person, bank, corporation, or institution as security or for safekeeping. The applicant must provide evidence of this, or the Secretary may make inquiries. If the document was lodged but has since been returned, the Secretary may still refuse if not satisfied. The “may” language gives the Secretary discretion; there is no stated appeal if a duplicate is refused. The general fees in regulation 16 catch any document not otherwise specified. A simple letter provided in connection with an application could be considered a “deed or document” and cost 24.1 fee units. The regulation does not define what constitutes “preparation and supply”. A standard template letter might still attract the fee if it is prepared in connection with an application. The regulations do not exclude electronic documents. The revocation of the 2006 regulations means any form or fee schedule from before 28 August 2016 is no longer valid. However, a form that was issued under the old regulations but is identical to the new form might still be accepted if it contains all the required fields; but risk of rejection is higher. The sunset date of 23 August 2026 means that after that date the regulations cease to have effect unless re made. Any application or notice lodged after sunset that relies on these regulations may be invalid. Planning ahead for a remake is prudent. Finally, the regulations do not address what happens if the fee paid is incorrect but the application is processed anyway. The Secretary may have the power to demand the balance, but it is not specified. Overpayment may or may not be refunded.

Compliance with the Land Regulations 2016 is largely a matter of procedural accuracy and timing. The first step is to identify the specific action you need to take under the Land Act 1958: apply for a licence, a lease, a Crown grant, an assignment, a surrender, respond to a notice of demand, or notify a road as unused. Next, locate the correct prescribed form. Regulation 6 directs that an application for surrender must use Schedule 1 and a notice of intention to surrender must use Schedule 2. Regulation 9 directs that a notice of demand be in Schedule 3. Regulation 10 directs that a municipal council notice of unused road be in Schedule 4. For licences, leases, Crown grants, and assignments, the regulations do not prescribe forms beyond the fee schedule; the Act or the Department’s administrative practice may require separate forms that are not in these regulations. Practitioners should confirm with the Department of Environment, Land, Water and Planning (or its successor) whether additional application forms are required. Third, calculate the correct fee. Refer to regulation 12, 13, 14, 15, or 16 as applicable, note the number of fee units, and then obtain the current value of a fee unit for the financial year in which the fee is payable. The value is published in the Government Gazette and in a Victorian newspaper before 1 June of the preceding financial year, as specified in the Monetary Units Act 2004. Multiply the fee units by that value and round to the nearest 10 cents. Do not rely on the illustrative value in the endnotes. Fourth, complete the form accurately. For surrender, ensure the land description matches the title, and include the correct newspaper name and date of publication. The declaration should confirm no mortgage or charge, and provide details of any lease or licence. If the land is subject to a mortgage, the applicant may need to obtain consent from the mortgagee or otherwise address how section 22C of the Act deals with encumbrances. For a notice of demand, ensure the person serving it is indeed an authorised officer or has written authorisation from the Secretary or committee of management. The 21 day period must be clearly stated on the notice. For a duplicate licence document, provide evidence that the original was lost, stolen, or destroyed. For a duplicate residence area right, also provide evidence that the original has not been lodged with any person or institution as security or for safekeeping. The Secretary may require a statutory declaration. Fifth, lodge the completed form and fee with the appropriate office. The regulations do not specify where to lodge; that will be the office of the Secretary under the Act or the Attorney General for surrender. Payment should be by a method accepted by the Department. Sixth, keep copies of all documents and proof of payment until the transaction is finalised. For surrender applications, await any objections and the Attorney General’s decision. For notice of demand, if the owner does not produce authority within 21 days, apply to the Magistrates’ Court as stated in the notice. For unused road notices, after submitting to the Secretary, the council should follow up under section 400 of the Act. Seventh, track the sunset date: if the regulations are not remade before 23 August 2026, any forms or fees prescribed will cease to have effect. Before that date, check whether new regulations have been made. Eighth, if in doubt about the current fee unit value or the precise form, seek confirmation from the Department or a qualified legal practitioner. The regulations do not provide for sample forms or electronic versions, but the Victorian Legislation website may publish them. Finally, for any document not covered by a specific fee, regulation 16 imposes a 24.1 fee unit charge; factor that into the budget for any unusual request.