Part 4Pastoral leases

Part 4—Pastoral leases 19—Grant of leases (1) Subject to this Act, the Minister may grant pastoral leases over Crown land. (2) Where the Minister proposes to make Crown land available for lease under this Act, the process for taking a lease must be an open competitive process. (3) Subsection (2) does not apply— (a) if the Minister is satisfied that special circumstances exist justifying the addition of the land to the holding of an existing lease; or (b) if the land was subject to a pastoral lease that was surrendered upon condition that a further such lease be granted to the same lessee or a nominee of the lessee; or (c) if the Minister is satisfied, on the recommendation of the Board, that for any other good and proper reason it would be just and equitable to offer the land to a particular person. 20—Assessment of land prior to grant of lease (1) The Minister cannot grant a pastoral lease over Crown land— (a) if the Governor has determined that the land should be set aside or used for some other more appropriate purpose; or (b) unless— (i) the Board is satisfied that the land is suitable for the purposes for which the pastoral lease would be granted; and (ii) an assessment has been made of the condition of the land. (2) However, the Minister may grant a pastoral lease over Crown land without an assessment having been made under subsection (1)(b)(ii) if an assessment has been made within the previous 14 years. 21—Execution of leases Where— (a) a document intended to constitute a pastoral lease is sent to the prospective lessee for execution; and (b) the document is not returned duly executed, together with such fees or other amounts as may be required, within a period (which must be at least 30 days) specified in an accompanying notice, the Minister may decline to enter into the lease and forfeit any deposit or other money paid in connection with it. 22—Conditions of pastoral leases (1) A pastoral lease will be granted subject to conditions and reservations providing for the following matters (but no others): (a) general conditions providing for— (iii) the payment of rent annually in arrears; (iv) the lessee's obligation to pay in the due manner all rates, taxes and other government charges in relation to the land; (v) the lessee's obligation to comply with the following Acts and any regulations under those Acts to the extent that they apply in relation to the land: (A) the Landscape South Australia Act 2019; and (B) the Dog Fence Act 1946; and (C) the Mining Act 1971; and (D) the Petroleum and Geothermal Energy Act 2000; and (E) the Hydrogen and Renewable Energy Act 2023; and (G) any other prescribed Act; (vi) the lessee's obligation not to hinder or obstruct any person who is exercising, or attempting to exercise, a right of access to the land pursuant to this Act or any other Act; (b) land management conditions providing for— (i) the lessee's obligation not to pasture (as part of the commercial enterprise under the lease) any species of animal on the land other than the species specified in the lease, except with the prior approval of the Board; (ii) the lessee's obligation to ensure that numbers of stock on the land or a particular part of the land do not exceed the maximum levels specified in the lease, except with the prior approval of the Board; (iii) the lessee's obligation not to use the land for any purpose other than pastoral purposes, except with the prior approval of the Board; (iv) the lessee's obligation to maintain existing fencing in a stockproof condition; (v) the lessee's obligation to maintain existing constructed stock watering points in proper working order; (vi) the lessee's obligation to close off specified areas on the land, or to close or move specified access points on the land, for the purposes of rehabilitation of degraded land; (vii) in the case of a pastoral lease relating to land in the Arkaroola Protection Area under the Arkaroola Protection Act 2012—the lessee's obligation to use the land in accordance with the management plan under that Act; (c) reservations providing for— (i) the property in minerals, petroleum, underground waters and live or dead standing timber on or under the land to be vested in the Crown; (ii) the right of the Commissioner of Highways to establish public roads across the land; (iii) the right of a Minister to whom the administration of the Hydrogen and Renewable Energy Act 2023 is committed to grant a renewable energy licence or an associated infrastructure licence under that Act. (1a) A condition referred to in subsection (1)(a) or (1)(b), and a reservation referred to in subsection (1)(c), will be taken to be a condition or reservation (as the case requires) of all pastoral leases (whether granted before or after the commencement of this subsection). (2) The form of a pastoral lease and any matters (such as maximum stock levels) to be specified in the conditions of a lease will be determined by the Board. (3) The only conditions of a pastoral lease that can be varied by the Board pursuant to this Act are the land management conditions. (4) Nothing in this Act prevents a lessee and the Board from entering into an agreement for the variation of a condition of the lease. (5) A condition of a pastoral lease is, to the extent that it relates to the minimum stocking rate of pastoral land, void and of no effect. (6) The Board may, at the request or with the consent of the lessee— (a) approve the pasturing (as part of the commercial enterprise under the lease) of a species of animal other than a species specified in the lease; and (b) approve a level of stock on the land, or on a particular part of the land, in excess of the maximum levels specified in the lease; and (c) approve the use of land subject to a pastoral lease for a purpose other than pastoral purposes (including, without limitation, conservation purposes or, if the land is being used for pastoral or conservation purposes, carbon farming); and (d) — (i) set aside from use for pastoral purposes land, or a part of the land, subject to a pastoral lease; and (ii) approve the use of the pastoral land set aside for the primary purpose of traditional Aboriginal pursuits, conservation purposes or other purposes as specified by the Board. (7) An approval of the Board under subsection (6) must be in writing and may be subject to conditions. 23—Rent (1) The rent payable to the Crown under a pastoral lease— (a) is the amount from time to time determined under this section to be the annual rent for the lease; and (b) is payable annually in arrears. (2) The annual rent for a pastoral lease is to be determined as follows: (a) the Valuer-General will from time to time determine the unimproved value of the land in accordance with the Valuation of Land Act 1971, taking into account, in addition to any other matters taken into account under that Act, the following matters: (i) the purposes, whether authorised under the lease or by the Board, for which the land is used and the inherent capacity of the land to be used for those purposes; and (ii) any prevailing climatic conditions currently affecting the productivity of the land; and (iii) the proximity and accessibility of markets and other facilities to the extent that they affect the profitability of the lessee's enterprise; and (iv) any views as to land condition factors expressed by the regional landscape board within whose region the land is situated (and the Valuer-General must seek those views before making the determination); and (v) the views of any consultative committee established by the Minister for the purpose of assisting in the determination of pastoral lease rents; (b) the Valuer-General will, on making a determination under paragraph (a), fix the annual rent for the lease as a percentage of the unimproved value of the land, being a percentage— (i) that represents, in the Valuer-General's opinion, the appropriate rate of return for the land, taking into account the purposes for which the land is being used; and (ii) that may vary from lease to lease according to the various purposes for which land is being used. (3) The Valuer-General must make a determination of the rents for all pastoral leases at the same time. (4) The Valuer-General— (a) may make such a determination at any time; and (b) must do so on direction by the Minister, but, in any event, must make such a determination at least every 5 years. (5) On completing a determination of the annual rent for a pastoral lease, the Valuer-General must give to the Board a notice of the determination that includes a statement of the unimproved value of the land and the percentage on which the rent is based. (6) The Minister may, on the recommendation of the Board, and if the Minister is satisfied— (a) that some factor exists affecting the profitability of an enterprise under a pastoral lease that has arisen since the Valuer-General last determined the annual rent for the lease; or (b) that the lessee has, under an agreement with the Minister, carried out work on the land on behalf of the Minister for which the lessee has not been recompensed; or (c) that the lessee has, on his or her own initiative, undertaken special measures to remedy or prevent degradation of the land, reduce by an appropriate amount the rent that would otherwise be payable under the lease in respect of any particular year. (7) The Board is responsible for issuing and sending to lessees annual rent accounts. (8) The Board may, for the purposes of administrative efficiency, fix a common day by which the rent under all pastoral leases must be paid in each year and, for that purpose, rent accounts for a period greater or less than a year may be sent to lessees. (9) A rent account must be accompanied by or include— (a) a copy of the Valuer-General's notice of determination if a new determination has been made since the last rent account sent to the lessee; and (b) an explanation of any debits or credits shown on the account; and (c) a statement of the reasons for any reduction, waiver or deferment of rent pursuant to this section. (10) The Minister may, on the recommendation of the Board, and if the Minister is satisfied that a case of hardship exists, waive or defer payment of any amount of the rent due and payable under a pastoral lease, subject to such conditions (if any) as the Board recommends. 24—Term of pastoral leases (1) Subject to subsection (2), a pastoral lease will be granted for a term of 42 years. (2) Where a lessee surrenders two or more pastoral leases for the purposes of merger of the leases, the term of the lease to be granted to the lessee will be such term as the Board, having regard to the terms of the surrendered leases, thinks appropriate. 25—Assessment of land (1) The Board must cause an assessment of the condition of the land comprised in each pastoral lease to be completed at intervals of not more than 14 years. (2) An assessment of the condition of land pursuant to this Act— (a) must be thorough; and (b) must include an assessment of the capacity of the land to carry stock (taking into account the purposes for which the land is being used); and (c) must be conducted in accordance with recognised scientific principles; and (d) must be carried out by persons who are qualified and experienced in land assessment techniques; and (e) must take into account any matter prescribed by the regulations. (3) The Board must, by notice in writing, advise a lessee of a proposed assessment not less than 28 days before the assessment is due to commence. (4) On completing an assessment of the condition of land, the Board must forward— (a) a copy of the assessment; and (b) a written report of any action the Board proposes taking as a consequence of the assessment, to the lessee. (5) The Board cannot take any action under this Act as a consequence of an assessment until after the end of the period during which an application for assistance may be lodged under section 25B. 25A—Establishment of pool of persons for the purposes of section 25B (1) The Minister must establish a pool of persons for the purposes of section 25B. (2) The pool will consist of such number of persons (being not less than 2 and not more than 6) as the Minister thinks fit, appointed by the Minister after consultation with Livestock SA Incorporated and the Conservation Council of South Australia Inc. (3) A member of the public service is not eligible for appointment as a member of the pool. (4) A member of the pool will be appointed on terms and conditions determined by the Minister. (5) Each person appointed under subsection (2) must have qualifications or experience in pastoral land management. (6) The Minister must maintain a public register containing the name and contact details of each member of the pool. (7) The public register is to be available for inspection, without fee, during ordinary office hours— (a) at a public office, or public offices, determined by the Minister; and (b) at a website determined by the Minister. (8) The Minister may, by notice in the Gazette, publish guidelines in relation to the provision of assistance under section 25B. 25B—Assistance to lessee (1) A lessee who has received under section 25(4)— (a) a copy of an assessment; or (b) a written report of proposed action, may, within 60 days after the copy of the assessment or the report is forwarded to the lessee under that section, apply to the Minister for assistance in relation to the lessee's dealings with the Board, or any other person or body, as a consequence of the assessment or in relation to the proposed action. (2) An application under subsection (1)— (a) may request that the assistance be provided by a particular member of the pool of persons established under section 25A; and (b) must identify— (i) the nature of the assistance sought by the lessee; and (ii) if the lessee seeks assistance to dispute any part of the assessment, or oppose any proposed action—the grounds for the dispute or opposition; and (c) must be made in a manner and form determined by the Minister and will not be conditional on the payment of any fee. (3) If an application is made under subsection (1), the Minister must, unless satisfied that the application is frivolous or vexatious, appoint a member of the pool to provide assistance to the lessee in accordance with any guidelines published in accordance with section 25A(8) (and if the application requests that the assistance be provided by a particular member of the pool, the Minister must appoint that member unless the Minister is of the opinion that it would be inappropriate for any reason for that member to do so). (4) A member of the pool must— (a) inform the Minister in writing of any direct or indirect interest that the person has or acquires that conflicts, or may conflict, with the provision of any assistance that the member is appointed to provide; and (b) comply with any directions given by the Minister regarding the resolution of the conflict, or potential conflict. Maximum penalty: $20 000. (5) Subsection (4) does not apply in relation to an interest that the member has or acquires while the member remains unaware that he or she has an interest in the matter, but in any proceedings against the member the burden will lie on the member to prove that he or she was not, at the material time, aware of his or her interest. (6) No civil liability attaches to a member of the pool for an act or omission in good faith in the exercise or purported exercise of a function under this section. (7) The Pastoral Board must give consideration to any comments made to the Board by the lessee relating to the assessment, or the written report of proposed action, referred to in subsection (1). 26—Extension of term of pastoral leases and variation of conditions (1) The Board may, by notice in writing given to the lessee, vary the land management conditions of a pastoral lease to take effect on the date or dates specified in the notice (and, if a property plan has been approved in respect of the pastoral lease, the variation must accord with the terms of the plan). (2) However, the Board cannot vary the land management conditions of a pastoral lease unless the lease conditions as varied by the Board are accepted by the lessee. (3) Subject to subsection (5), the Board must, by notice in writing given to the lessee within 12 months after the completion of the most recent assessment under section 25— (a) if the land management conditions of a pastoral lease are not to be varied by the notice under this subsection—extend the term of a pastoral lease; or (b) if the land management conditions of a pastoral lease are to be varied by the notice under this subsection—offer to extend the term of a pastoral lease, by such period as will bring the term to 42 years (measured from the date the most recent assessment was completed). (4) An offer to extend the term of a pastoral lease under subsection (3)(b) is subject to the condition that the lessee accepts the lease conditions as varied within 12 months after receiving the offer (and if the lessee does not accept the lease conditions as varied within that period the offer is, by force of this section, withdrawn). (5) The Board may refuse to extend the term of a pastoral lease if satisfied— (a) there has been a wilful breach of a condition of the lease resulting in, or likely to result in, degradation of the land; or (b) the lessee has, without reasonable excuse, failed to discharge a duty imposed by section 7. (6) If— (a) an offer to extend a pastoral lease has been withdrawn under subsection (4); or (b) the Board has refused to extend the term of a pastoral lease under subsection (5), the Board may (either on an application by the lessee or of its own motion), if satisfied that the grounds for the revocation or refusal no longer exist, extend the term of a pastoral lease by such period as will bring the balance of the term to 42 years (measured from the date the most recent assessment was completed). (7) For the purposes of this section, an assessment is taken to have been completed on the day that the Board resolves to issue a notice under subsection (3). 27—Exemption from stamp duty The grant of a pastoral lease or extension of the term of a lease is exempt from stamp duty. 28—Dealing with pastoral leases (1) Subject to the conditions of the lease, the interest of the lessee under a pastoral lease cannot be transferred, assigned, mortgaged, sublet or otherwise dealt with without the consent of the Minister. (2) The Minister must not unreasonably or capriciously refuse or withhold consent under subsection (1). (3) Where a lessee transfers or assigns his or her interest under a pastoral lease, all accrued and accruing liabilities pass to the transferee or assignee. (4) 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). (5) A pastoral lease can be wholly or partially surrendered with the consent of the Minister (which may be unconditional or subject to conditions) and, subject to subsection (6), the consent of all persons who have a registered interest in or caveat over the lease. (6) If it appears to the Minister that a consent has been unreasonably withheld, the Minister may accept the surrender despite the absence of that consent. (7) Where the surrender of a pastoral lease is conditional on the granting of an interest in the land to the lessee or any other person, an interest or caveat registered on the lease continues in force and will be endorsed on the new lease or other documents of title, unless the holder of the interest or caveat consents to its discharge. (8) Where the surrender of a pastoral lease is not conditional on the granting of an interest in the land to the lessee or any other person, the land reverts to the Crown freed from all encumbrances and claims. 29—Agreements to deal with a lease Where an agreement is entered into under which the parties agree to transfer, assign, mortgage, sublet or otherwise deal with a pastoral lease, the agreement will expire 12 months after its execution unless the consent of the Minister to the transfer, assignment, mortgage, subletting or other dealing has been obtained. 30—Consent to certain share transfers in pastoral company (1) Where a company— (a) is a lessee under a pastoral lease; or (b) is a party to an agreement for the transfer, assignment, mortgage or subletting of a pastoral lease to the company, no change in the ownership of the shares of the company can be effected without the prior consent of the Minister, if the change in ownership would result in a controlling interest in the company being held by some person, or by some other person than the present holder of such an interest. (2) Subsection (1) does not apply to a change in ownership of shares effected by a will or other testamentary disposition. 31—Alteration of boundaries (1) If the Board is satisfied that the boundary of land subject to a pastoral lease does not reflect the land actually occupied by the lessee, the Minister may, by notice in writing to the lessee, alter the boundary accordingly. (1a) If— (a) part only of the land subject to a pastoral lease (the relevant land) has been resumed in accordance with section 32 for the purposes of a hydrogen generation facility or an associated infrastructure activity; and (b) construction of the hydrogen generation facility or an associated infrastructure activity has not, in the opinion of the Minister, been substantially completed within 5 years after the date on which the resumption took effect, the Minister may, by notice in the Gazette, alter the boundary of the pastoral lease referred to in paragraph (a) so that the relevant land is again included in the lease. (2) The Minister may, in a notice under this section, vary the rent payable under the lease to take into account the increase or reduction in value of the lease that results from the alteration of the boundary. (3) On registration by the Registrar-General of a boundary alteration pursuant to this section— (a) the alteration takes effect; and (b) all registered interests or caveats to which the pastoral lease is subject extend over the lease as so altered. 31A—Variation of land subject to lease (1) The Minister may, by notice in writing to the relevant lessees— (a) excise land, or a part of land, subject to a pastoral lease and transfer the land, or the part of land, to another lease; and (b) alter the boundaries of the leases accordingly. (2) Despite a provision of this Act, the Minister may, in the same notice— (a) vary the rent payable under a pastoral lease to take into account the increase or reduction in value of the lease resulting from the alteration of the boundaries; and (b) vary the land management conditions of a pastoral lease (including varying a condition relating to the maximum level of stock on the land, or a particular part of the land). (3) The Minister may only take action under this section— (a) on the recommendation of the Board; and (b) at the request or with the consent of the relevant lessees. (4) On registration by the Registrar-General of a boundary alteration pursuant to this section— (a) the alteration takes effect; and (b) all registered interests or caveats to which the pastoral lease is subject extend over the lease as so altered. 32—Resumption of land (1) The Minister may, by notice in the Gazette, resume any pastoral land. (2) Before a notice is published under subsection (1), the Minister must give written notice of intention to resume to the lessee under the pastoral lease affected by the proposal. (3) The resumption takes effect— (a) if the resumption is for the purposes of a hydrogen generation facility or an associated infrastructure activity—on a day specified in the notice in the Gazette, which must be a day falling at least 2 months after the date on which that notice is given; or (b) in any other case—on a day specified in the notice in the Gazette, which must be a day falling at least 6 months after the date on which that notice is given. (4) Where the whole of the land subject to a pastoral lease is resumed, the resumption operates to cancel the lease. (5) Where part only of the land subject to a pastoral lease is resumed— (a) the area of land resumed is excised from the area to which the lease formerly applied; and (b) the lease continues to apply to the remainder of that land subject to— (i) any variation of its conditions specified in the notice; (ii) any variation of its conditions determined by the Tribunal on the application of the lessee (and any such variation may, according to the Tribunal's determination, operate in addition to or in substitution of a variation under subparagraph (i)). (6) For the purposes of the South Australian Civil and Administrative Tribunal Act 2013, an application to vary any conditions of a lease under subsection (5)(b)(ii) will be taken to come within the Tribunal's original jurisdiction. 33—Abandonment of land If land subject to a pastoral lease has been abandoned, the Board may cancel the lease. 34—Vacation of land (1) Where the lessee or former lessee under a pastoral lease vacates the land leaving behind property, the Minister may, by notice in writing, require him or her to remove the property within a stipulated period. (2) If the notice is not complied with within the stipulated period, the Minister may remove and dispose of the property. (3) Any costs incurred by the Minister under subsection (2) that are not covered by the proceeds (if any) of the sale of the property may be recovered as a debt from the person to whom the notice under subsection (1) was given. (4) Any surplus proceeds of the sale of the property must be paid to the lessee or former lessee. 35—Penalties for late payment of rent (1) The Minister may, by notice in the Gazette— (a) fix a scale of penalties to be paid by lessees for late payment of rent or any other amount due under pastoral leases; (b) vary or revoke a scale previously fixed under this section. (2) Any such penalty will be regarded as an amount that is due and payable under the pastoral lease. (3) The Board may, for proper reasons, remit a penalty under this section in whole or part. 36—Waiver The Board may, if it thinks special reason exists for doing so, waive a breach of, or non-compliance with, a condition of a pastoral lease unconditionally or subject to conditions. 37—Cancellation of lease or imposition of fine on breach of conditions (1) Subject to subsection (2), the Board may— (a) impose a fine on the lessee under a pastoral lease of an amount not exceeding $10 000; or (b) cancel a pastoral lease, if satisfied that a breach of a condition of the lease has occurred. (2) The Board cannot cancel a pastoral 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, arrest or minimise damage to or deterioration of the land. (3) On cancelling a pastoral lease under this section, the Board may— (a) order that the lessee or the holder of any registered interest in or caveat over the lease be compensated for loss suffered as a result of the cancellation to such extent as the board thinks fit (but the total amount payable under all such orders must not exceed the market value of the lessee's interest less the costs incurred by the Board in taking action under this section); or (b) make such incidental or ancillary orders as it thinks fit. (4) On cancellation of a pastoral lease under this section, the land is freed from all encumbrances and claims. (5) Fines imposed under this section— (a) are payable by the Board into the Consolidated Account; and (b) if unpaid, may be recovered by the Board from the lessee as a debt. 38—Cancellation of pastoral lease obtained by false statement The Board may cancel a pastoral lease if satisfied that the lease was obtained under this Act by a false declaration or statement. 39—Compensation (1) A lessee is entitled to compensation on— (a) resumption of pastoral land; or (b) expiry of a lease pursuant to a refusal to extend its term under section 25 or 26. (2) The amount of the compensation— (a) will be determined by agreement between the Minister and the lessee or, in default of agreement, by the Supreme Court; and (b) must be based on the market value of the pastoral lease as if the lease were not being resumed or were not expiring but had been duly extended in accordance with this Act. (3) If the resumption of pastoral land is for the purposes of a hydrogen generation facility or an associated infrastructure activity, the Minister may recover the amount of the compensation that the Minister is liable to pay under this section from the holder of, or the applicant for, the relevant hydrogen generation licence or associated infrastructure licence (as the case may be). 40—Notice of adverse action to be given to holders of registered interests or caveats (1) The Board or the Minister (as the case may require) must— (a) before resuming any pastoral land; or (b) before cancelling a lease pursuant to this Part; or (c) on making a decision under this Part not to extend the term of a lease, give written notice of the action to all persons who have a registered interest in or caveat over the lease. (2) Notice of a proposed resumption or cancellation must be given at least 14 days before the proposal is implemented.