Tree Plantation Agreements Act 2003

The central concept is the “plantation interest”, created by section 7(1)(a). Upon registration of an agreement, the property in the trees in the plantation becomes a separate interest in the agreement land. The interest is described as both a “hereditament” (a type of real property that can be inherited) and an “encumbrance” (a burden on the land). The note to section 7 points out that the definition of “land” in the Transfer of Land Act already includes hereditaments in freehold and Crown land, so the plantation interest sits within that existing system. The interest is a statutory creation - it does not arise at common law - and its content depends on the terms of the registered agreement.

“Plantation” is defined as one or more groups of planted trees. The definition is broad: it does not require a minimum area or commercial purpose, and it uses “planted” rather than “cultivated” or “managed”, so even a small stand of planted trees could qualify. “Tree” is defined as a perennial plant having one or more woody, self-supporting trunks and includes a seedling and a sapling. That definition excludes non-woody plants and plants that cannot support themselves, such as vines. “Product” includes the whole tree, part of a tree, or a thing produced by the tree, whether above or below ground, and whether or not separated from the tree before harvesting. That means the plantation interest covers carbon sequestration, bark, leaves, fruit, sap, and timber, but only to the extent the trees are in a plantation and the agreement covers those products.

“Agreement land” is the freehold land, leasehold interest, or Crown land described in the agreement under section 6(1)(e) and, where applicable, the part identified under section 6(1)(f). The definition includes a leasehold interest, so the Act can apply to land held under a Crown lease even though the lessee does not own the freehold. “Owner” is restricted to a person registered as proprietor of freehold land - lessees are not “owners” for the Act even though they can enter into agreements as lessees. “Registered” ties the Act to the two existing registration systems: Torrens under the Transfer of Land Act 1893 and old system under the Registration of Deeds Act 1856. The Registrar is defined by reference to the relevant system.

The Act also uses “agreement” strictly: an “agreement” is defined in section 3 as an agreement that complies with section 6(1). That means an instrument that fails to include any of the mandatory contents (e.g., failing to state it is under the Act) is not an “agreement” for the purposes of the Act, so it cannot be registered to create a plantation interest. However, it might still be a valid contract at common law. The drafter likely intended to confine the statutory benefits to instruments meeting the formalities.

The “run with the land” provision in section 9 is notable. It provides that rights, obligations (including positive covenants), and restrictions that bind the owner or lessee under a registered agreement also burden, attach to, and run with the agreement land, except to the extent the agreement provides otherwise. This is significant because the Torrens system generally does not enforce positive covenants against successors without privity of contract. Section 9 overrides that limitation, making the agreement’s performance obligations (such as maintaining the plantation or paying licence fees) binding on future owners or lessees of the land. The exception (the agreement can provide otherwise) allows parties to limit the burden - for example, by providing that the agreement is personal to the original owner and does not run.

The Act directly affects three groups: landowners, plantation investors, and property registrars. Landowners with the capacity to enter into an agreement are limited to registered proprietors of freehold land, lessees of freehold land, or lessees of Crown land. An owner of Crown land (the Crown itself) is not listed as a party, so the Act does not apply to public forests managed by the Forest Products Commission. Section 4(1) expressly excludes the Act from applying to the management, harvesting, or sale of forest products on public land under the Forest Products Act 2000, except to the extent section 5 provides. Section 5(3) preserves the operation of sections 106 and 109 of the Land Administration Act 1997, which deal with Crown leases and licences. Therefore, the Act’s main impact is on private freehold land and on Crown leasehold interests that are not public forest.

Plantation investors are the second key group. These are the persons who agree to establish, maintain, or harvest the plantation. Under the Act, they become the proprietors of the plantation interest upon registration, gaining a separate property right that can be mortgaged, assigned, caveated, or sold. That gives investors security: if the landowner sells the land, the investor’s interest in the trees continues because it is a registered interest in land. The investor does not acquire possession of the land (section 10(1)), so the landowner retains control of access except as agreed. That distinction matters for liability - the investor is not a tenant, so the landowner remains primarily responsible for the land, and the investor is unlikely to attract the protections or obligations of a lessee under the Residential Tenancies Act or commercial tenancy law.

Registrars (Registrar of Titles and Registrar of Deeds and Transfers) are affected because they must accept for registration agreements that comply with section 6(1) and deal with plantation interests as separate interests in land. The Act does not prescribe the registration process in detail but relies on the existing regime under the Transfer of Land Act 1893 (including Part IV Division 2B, which deals with dealings other than transfers and leases) and the Registration of Deeds Act 1856. The Registrar must treat a plantation interest as a separate folio or memorial, and must allow dealings such as transfers and caveats over that interest.

Indirectly, the Act affects successors in title to the agreement land. Section 9 makes the obligations run with the land, so a person who buys or inherits the land after the agreement is registered takes it subject to the plantation investor’s rights and is bound by the obligations. Financers are also affected: a mortgage over the land may need to account for the plantation interest as a prior encumbrance; conversely, a financer can take a mortgage over the plantation interest itself. The Act does not provide any priority rules beyond those in the general law, so the timing of registration will determine priority between a mortgage of the land and the plantation interest.

Planning authorities are affected because sections 6(5) and 10(2) provide that an agreement (and a plantation interest) is not a lease or licence to which sections 135 or 136 of the Planning and Development Act 2005 applies. Those sections regulate subdivisions and use of land for leases that create exclusive possession. The exemption means a landowner who grants a tree plantation agreement does not need planning approval for a new lot or an occupancy licence. That reduces transaction costs and regulatory risk for plantation projects.

The Act creates a menu of rights and duties that flow from a registered tree plantation agreement. The rights of the plantation interest holder include the ability to own the trees as a separate interest in land (section 7), to deal with that interest (section 8) by transferring it, mortgaging it, or subjecting it to a caveat or execution, and to enforce the obligations in the agreement against successive owners of the land (section 9). The right to deal with the interest is broad: it can be disposed of independently of the land, giving the holder liquidity. However, section 8(1)(a) contains an important limitation: the interest cannot be varied. Once registered, the plantation interest is fixed in its scope and cannot be changed except by surrender and registration of a new agreement. That means parties must get the agreement right at the outset.

The rights of the landowner or lessee are less explicitly stated but include the right not to be dispossessed (section 10(1) confirms the plantation interest does not confer possession), and the right to have the agreement performed. The agreement may also grant the landowner rights to terminate or to share in the harvest. Because positive covenants run with the land under section 9, a landowner who later sells the land is released from future performance only if the agreement so provides - otherwise the covenant continues to burden the land and the original landowner may be secondarily liable under contract law. The Act does not address privity of estate, so the original landowner may remain liable as a covenantor even after sale unless the agreement expressly limits liability.

Duties are imposed on both sides. The landowner or lessee must permit the plantation interest holder to enter the land (if the agreement so provides) but only to the extent necessary for the establishment, maintenance, or harvest of the plantation. The landowner must also ensure that successors are informed of the agreement, because the registered interest will appear on the title and failure to disclose could lead to claims for misrepresentation. The plantation interest holder must comply with the terms of the agreement, including any obligations to maintain the plantation, pay any fees, or harvest within a specified term. Because section 9 makes those obligations run with the land, the holder cannot simply abandon the plantation without risking enforcement by the current landowner.

For lessees of Crown land, section 6(3) imposes a specific duty: the agreement is of no effect unless section 18 of the Land Administration Act 1997 has been complied with. Section 18 requires the consent of the Minister or an authorised officer to certain dealings by a lessee of Crown land. Without that consent, the agreement is void and no plantation interest can be created. Practitioners must check whether the lease requires consent and obtain it before or at the time of execution.

The most important duty imposed on all parties is the prohibition on contracting out in section 12: the provisions of the Act apply despite anything to the contrary in an agreement. That means parties cannot agree that the plantation interest will not run with the land, or that the agreement will be treated as a lease for planning purposes, or that the interest can be varied without registration of a new agreement. The no-contracting-out provision ensures that the statutory regime cannot be circumvented, but it also reduces flexibility. For example, a sophisticated institutional investor might want to treat the interest as a lease for certain tax purposes, but section 6(4) prevents that characterisation.

The Act itself creates no criminal penalties for breach of an agreement or for dealing with a plantation interest in an unauthorised manner. The only source of penal provisions is section 13, which empowers the Governor to make regulations that can create offences punishable by fines not exceeding $5,000. As of the compilation date (and as at writing, no regulations under this Act appear to have been promulgated, at least not publicly noted). The lack of regulations means there are currently no specific regulatory offences. Enforcement of the agreement itself is left to civil remedies: the parties can sue for breach of contract, seek specific performance, or claim damages. Because the registered agreement creates property rights, remedies in rem may also be available - for example, an injunction to prevent interference with the plantation, or an order for sale of the plantation interest to satisfy a debt.

The enforcement of obligations that run with the land under section 9 is particularly important. A successor landowner who refuses to allow access for harvesting, or who removes the trees without the plantation holder’s consent, can be sued for breach of the positive covenant. The land may be charged with the obligation, and the plantation holder may be able to lodge a caveat to prevent dealings that would defeat the interest. However, the Act does not provide a statutory right of entry or self-help beyond what the agreement allows. If the agreement is silent, the plantation holder cannot force entry; they must rely on court orders.

Dealings in plantation interests under section 8(2) are subject to Part IV Division 2B of the Transfer of Land Act 1893, which deals with caveats. A caveat can prevent the registration of a dealing that would affect the plantation interest, such as a transfer of the land that does not refer to the interest. The plantation interest is also subject to execution - meaning a judgment creditor can seize the plantation interest in satisfaction of a debt. That is a risk for the plantation holder if they become insolvent or are sued successfully.

The Act does not specify any statutory limitation period for enforcement of obligations under a registered agreement. The ordinary limitation periods for contract (6 years) and for actions concerning land (12 years) would apply depending on the nature of the obligation. Practitioners should also consider whether breach of a positive covenant is a continuing breach, which may restart the limitation period.

The Act deliberately links to four key Western Australian statutes. First, the Transfer of Land Act 1893: registration of a plantation interest over Torrens land is done under that Act. Section 8(2) makes dealings subject to Part IV Division 2B (which deals with dealings other than transfers and leases - this division was inserted after the Carbon Rights Act and accommodates statutory interests like plantation interests). The plantation interest is treated as an encumbrance and a separate interest in land. The note to section 7 confirms that the definition of “land” in the Transfer of Land Act includes hereditaments in freehold and Crown land, so the plantation interest fits within the Torrens system. For land under the Registration of Deeds Act 1856, registration is done under that Act, but the effect (creating a plantation interest) is the same.

Second, the Planning and Development Act 2005 is explicitly displaced. Sections 6(5) and 10(2) state that an agreement and a plantation interest are not a lease or licence to which sections 135 or 136 of the 2005 Act apply. Section 135 regulates subdivisions by way of leases that create exclusive possession and exceed a certain term; section 136 regulates licences that require development approval. The exemption means that a tree plantation agreement does not require planning approval as a subdivision or occupancy change, regardless of its term. That is a significant benefit for plantation projects, saving time and cost. However, the exemption is narrow: it only applies to those two sections. Other planning controls - such as clearing permits under the Environmental Protection Act or vegetation management restrictions - still apply. The Act does not exempt plantation agreements from local government approvals for building works, access roads, or dams.

Third, the Land Administration Act 1997 is referenced in three places. Section 4(2) preserves the powers of the Forest Products Commission and the CALM Act CEO under that Act and the Conservation and Land Management Act 1984, particularly regarding timber sharefarming agreements. Section 5(3) preserves the operation of sections 106 and 109, which deal with Crown leases and licences. Section 6(3) requires compliance with section 18 (Ministerial consent) for Crown lessees. The interaction means that a Crown lessee cannot independently enter into a tree plantation agreement without first obtaining consent from the responsible Minister or delegate, and even then, the agreement may be subject to the head lease’s terms.

Fourth, the Forest Products Act 2000 is relevant because section 4(1) excludes the application of this Act to the management, harvesting, or sale of forest products on public land as defined by that Act. The exception is limited: section 5 does allow a lessee of Crown land (which could include a party who holds a lease over Crown land that is not public forest) to enter into an agreement. The line between public forest and other Crown land is drawn by the Forest Products Act definition. The practical effect is that the Tree Plantation Agreements Act cannot be used for commercial forestry on state forests or timber reserves; those remain governed by licence or sharefarming arrangements under the Forest Products Act.

The Act is also tied to the Carbon Rights Act 2003, which commenced on the same day. The Carbon Rights Act creates separate carbon rights in trees. The two acts are complementary: a tree plantation agreement can be used to establish and manage a plantation, while a carbon right can be separately created to own the carbon sequestration benefits. The plantation interest under this Act does not automatically include carbon rights unless the agreement so provides (the definition of “product” includes “a thing produced by the tree”, which could encompass carbon). However, the carbon right is a separate statutory interest registered under the Carbon Rights Act, so parties may need to register both to fully secure their investment.

The Tree Plantation Agreements Act 2003 was enacted as Act No. 39 of 2003, assented to on 30 June 2003, and commenced on 24 March 2004 (see section 2 and the Gazettal on 23 March 2004, page 975). The commencement date was linked to the commencement of the Carbon Rights Act 2003, indicating the two Acts were intended to operate in parallel.

The Act has been amended three times. First, by the Planning and Development (Consequential and Transitional Provisions) Act 2005 (No. 38 of 2005), section 15. That amendment substituted references to the “Planning and Development Act 2005” for the former “Town Planning and Development Act 1928” in sections 6(5) and 10(2). This was a mechanical update following the consolidation and renaming of Western Australia’s planning legislation. It did not change the substantive effect - the exemption from lease/licence provisions continued.

Second, by the Machinery of Government (Miscellaneous Amendments) Act 2006 (No. 28 of 2006), Part 2 Division 8, which amended section 4. The amendment replaced the reference to “the CEO” (as defined in the Conservation and Land Management Act 1984) with the defined term “CALM Act CEO” and inserted a new subsection (3) providing that definition. This was part of a broader machinery-of-government restructure following the renaming of the Department of Conservation and Land Management. The substantive effect was unchanged: the Forest Products Commission and the CALM Act CEO are prevented from entering into agreements under the Act.

Third, by the Statutes (Repeals and Minor Amendments) Act 2011 (No. 47 of 2011), section 16, which amended section 3. The exact nature of the amendment is not specified in the compilation table, but it is likely a minor definitional change (possibly to the definition of “registered” or “Registrar” to reflect changes to the Transfer of Land Act). The amendment was part of an omnibus statute repeals and amendments act, suggesting it corrected a technical cross-reference. The compilation table lists the amendment but does not detail its content. Practitioners should check the 2011 Act if the precise wording of the definition matters, as the current section 3 reflects the amendment.

The Act has not been amended or repealed since 2011 and remains in force. No regulations have been promulgated under section 13 as of the compilation date, so the penalty provision remains unused.

No reported cases interpreting the Tree Plantation Agreements Act 2003 were cited in the Act or are widely known in Australian property law databases. The Act is narrow in scope, and its use in practice appears to be limited. The absence of litigation may indicate that the Act works as intended, or that the number of registered agreements is small. Alternatively, disputes may have been resolved by private settlement or arbitration without leading to reported judgments.

Potential litigation could arise over a number of issues. The most likely is a dispute about whether an agreement complies with section 6(1) - especially the requirement to “state that it is an agreement under this Act”. If a document does not use those exact words, a court would need to decide whether it can be treated as an “agreement” under the Act. The definition is strict: an “agreement” means an agreement that complies with section 6(1). A court might take a purposive approach and accept substantial compliance, but the risk is that a document that fails to recite the magic words is not registrable and does not create a plantation interest. That would be a litigated point.

Another potential issue is the interaction between sections 6(4) (an agreement conferring exclusive possession is not to be treated as a lease) and 9 (obligations run with the land). If a landowner grants a plantation investor exclusive possession of land for a long term to establish a plantation, the agreement might create a de facto lease despite the statutory fiction. A court could be asked to decide whether the agreement creates a lease or an equitable lease for purposes other than the Act (e.g., for stamp duty, GST, or land tax). The Act only says the agreement is not to be treated as a lease - but that may not be conclusive for all purposes such as the Planning and Development Act, which the Act expressly addresses. For other purposes, a court might look at the substance.

The scope of “plantation” could also be litigated. If a group of planted trees is very small or non-commercial, the Registrar may argue it is not a plantation. The definition says “one or more groups of planted trees”, which is extremely broad. However, the ordinary meaning of “plantation” in commercial forestry might imply a certain scale or management purpose. A narrow interpretation would frustrate the Act’s purpose of encouraging investment; a broad interpretation could trivialise the interest. That tension might need judicial resolution.

Finally, the effect of the no-contracting-out provision (section 12) on an agreement that purports to exclude the operation of section 9 (covenants not running with the land) would be straightforward: such a clause is void. But a more subtle issue is whether an agreement that provides that a plantation interest “shall not run with the land” is nevertheless effective because section 9 says “except to the extent that the agreement provides otherwise”. A court would need to decide whether that exception allows an agreement to completely sever the burden, or only to limit its scope (e.g., to the original parties). The language is ambiguous.

Given the limited use of the Act, a cautious practitioner should assume that any dispute will be resolved by general principles of contract and property law, with the Act’s specific provisions applied strictly. The lack of precedent makes it essential to draft agreements with precision and to ensure all statutory formalities are met.

The Act contains several traps that can catch the unwary practitioner, investor, or landowner.

First, the requirement in section 6(1)(b) that the agreement must “state that it is an agreement under this Act” is not merely a label. It is a condition of the statutory definition of “agreement”. An otherwise valid document that fails to include those exact words - or includes a statement that it is made under a different Act - does not qualify as an “agreement” for the purposes of the Act. That means the document cannot be registered to create a plantation interest, and the parties are left with whatever rights they have at common law. The document might still be a valid contract, but the trees would remain fixtures owned by the landowner. A court might read “under this Act” broadly, but the prudent approach is to include the precise phrase “This is an agreement under the Tree Plantation Agreements Act 2003” in the opening recital.

Second, the Act’s limitation on plantation interests being varied (section 8(1)(a)) is a major trap. Once registered, the interest is fixed. Any change - even a minor adjustment to the land description or the term - requires the surrender of the existing interest, registration of the surrender, and execution of a new agreement with a fresh registration. That process may trigger stamp duty again, and it creates a gap in registration during which the interest is unprotected. Parties should ensure the agreement is comprehensive from the start, covering all foreseeable scenarios such as partial harvests, changing tree species, or extension of the term. If the term is too short, the plantation may not be harvestable before expiry, leaving the investor with no rights.

Third, the plantation interest does not confer possession (section 10(1)). A common assumption is that owning the trees gives the right to enter the land, but the right of access must be expressly provided in the agreement. If the agreement is silent on access, the plantation holder cannot physically enter to plant, maintain, or harvest without the landowner’s permission. The holder would need to rely on the landowner’s positive covenant to allow access, which may be insufficient. Conversely, the landowner may inadvertently grant a right of exclusive possession in the agreement, which section 6(4) says is not to be treated as a lease, but that does not prevent the landowner from being bound by the grant. The risk is that the holder seeks an injunction to enforce what is effectively a lease, and the landowner cannot claim the protections of the Residential Tenancies Act. The Act’s statement that the agreement is not a lease is only for statutory purposes; it does not give the landowner any special immunity.

Fourth, for Crown land lessees, the requirement to comply with section 18 of the Land Administration Act 1997 (consent) is absolute. Section 6(3) says the agreement is “of no effect” unless that section has been complied with. That is a stricter sanction than mere voidability - it suggests the agreement is void ab initio and cannot be saved by later consent. The consent must be obtained before the agreement is signed. Practitioners dealing with Crown land should obtain a copy of the lease, check for any restrictions on dealings, and obtain written consent from the Minister or delegate. Note also that the Act does not apply to public forest land managed by the Forest Products Commission, so a lessee of such land cannot use this Act at all.

Fifth, the interaction with planning laws is limited. Section 6(5) and 10(2) only exempt the agreement and plantation interest from sections 135 and 136 of the Planning and Development Act 2005. Other planning controls remain, including the need for a development approval if the plantation involves buildings or earthworks, or a native vegetation clearing permit under the Environmental Protection Act. The exemption does not apply to a licence or lease that coexists with the agreement - if the landowner separately grants a licence for access that is broader than the plantation agreement, that licence may trigger planning requirements.

Sixth, the “run with the land” provision in section 9 applies to rights, obligations, and restrictions that bind the owner or lessee. It does not expressly say that the obligations bind the plantation interest holder’s successors. The holder’s obligations are contractual between the original parties; unless the agreement provides for assignment of the benefit and burden, a successor in title to the plantation interest may not be bound by the holder’s covenants. That asymmetry could be problematic: the land is burdened but the holder’s obligations are personal. A well-drafted agreement should include a covenant by the holder binding its successors and a mechanism for novation upon transfer.

Seventh, the definition of “product” is broad but not unlimited. It does not include things not produced by the tree, such as soil, water, or fungi. If the plantation agreement intends to confer rights to harvest non-tree products (like mushrooms or truffles), those must be expressly provided for, and they may not be part of the plantation interest unless they come within “product” or are the subject of a separate grant.

Eighth, the Act does not address the priority of a plantation interest over a mortgage registered before or after the agreement. Section 7(3)(b) says the plantation interest is an encumbrance, which suggests it has priority over later-registered interests unless the agreement provides otherwise or unless the mortgagee consented. Under the Torrens system, a registered plantation interest would have priority over an unregistered mortgage, but a registered mortgage that predates the agreement would have priority unless the mortgagee endorsed the agreement. Practitioners should obtain mortgagee consent before registering the agreement, and consider having the mortgagee sign a postponement.

Compliance with the Tree Plantation Agreements Act 2003 requires a structured process from drafting through registration and ongoing management. The first step is to confirm that the land falls within the Act’s scope. The land must be freehold (held by a registered proprietor) or held by a lessee of freehold or Crown land. It must not be public land as defined by the Forest Products Act 2000 unless the lease is not for public forest. If the land is Crown land held by a lessee, obtain the written consent required under section 18 of the Land Administration Act 1997 before proceeding further - failure to do so makes the agreement void.

The second step is drafting the agreement to satisfy section 6(1). It must be in writing and must state that it is an agreement under this Act. Use clear language: “This Agreement is made under the Tree Plantation Agreements Act 2003 (WA).” The agreement must provide for at least one of the three permissible activities: establishment of a plantation, maintenance of a plantation, or harvesting of products from a plantation. It may provide for all three. The agreement must specify the commencement day and the term. The term should be long enough to allow the plantation to mature and be harvested; if the term expires before harvest, the plantation interest will cease upon surrender but the trees remain on the land. Consider a term that covers the full rotation plus a buffer for delays.

The agreement must contain a description of the land. For freehold or Crown land, use the certificate of title reference and the plan of the lot. For leasehold interests, describe the lease and the leased area. If the plantation occupies only part of the land, the agreement must identify that part by words or a sketch (section 6(1)(f)). A sketch may be sufficient, but a precise survey plan is safer to avoid boundary disputes. The sketch should be attached as a schedule and described with coordinates or fixed boundaries.

The agreement may include any other provisions the parties agree to (section 6(2)). Key provisions to include are: the rights of access (specifying frequency and notice periods), the allocation of products (proportions or full ownership), responsibility for costs (planting, fertilising, pest control, fire protection), insurance liabilities, dispute resolution, and termination rights. Remember that section 9 allows the agreement to exclude some or all obligations from running with the land. If the landowner intends to sell the land and wants to be released from future obligations, the agreement should state that the obligations are personal to the original owner and do not run. Conversely, if the investor wants the obligations to bind successors, the agreement should not exclude section 9 or should expressly state the intention to bind.

The agreement must not treat itself as a lease or purport to give exclusive possession other than what is necessary for the plantation. Avoid granting the plantation investor exclusive possession of the entire land; instead, grant a right to enter and occupy only the plantation area for the limited purpose of carrying out the activities. Include a clause confirming that the agreement is not a lease and that the holder does not have a right of possession except as expressly provided. This will assist in maintaining the exemption from planning laws.

Once executed, the agreement should be lodged for registration. For Torrens land, lodge it with the Registrar of Titles together with a form for registration of a dealing under Part IV Division 2B of the Transfer of Land Act 1893. The precise form is not specified in the Act; check the current Land Titles Practice Manual for the required form (likely a Caveat or a specific request to register an encumbrance). The Registrar will create a plantation interest as a separate folio or note it as an encumbrance on the land’s certificate of title. For land under the Registration of Deeds Act, register the agreement with the Registrar of Deeds and Transfers. After registration, the plantation interest is created, and the property in the trees vests in the registered proprietor of the interest.

Dealings in the plantation interest after registration must comply with section 8. The interest can be transferred, mortgaged, or caveated, but cannot be varied. If a variation is needed, register a surrender of the existing interest under section 11 (which extinguishes the rights, obligations, and restrictions) and then execute and register a new agreement. A partial surrender (section 11(2)) is possible if only part of the plantation area is to be varied.

Ongoing compliance requires that the parties perform their obligations under the agreement. The landowner must allow access as agreed, and the plantation investor must maintain and harvest the plantation according to the agreement’s terms. The landowner should notify any prospective purchasers of the registered agreement and the plantation interest, and should ensure that any mortgagee consents to the arrangement affecting the land. The plantation investor should periodically check the title to ensure no third-party dealings have been registered that could affect the interest, and lodge a caveat if necessary.

Finally, ensure that the agreement does not conflict with section 12 (no contracting out). Any term that purports to exclude the Act’s provisions is void. For example, a clause stating that the agreement does not create a plantation interest until registration would be redundant (the Act already provides that registration creates the interest), but a clause that says the plantation interest is not an encumbrance might be invalid. Stick to the statutory language.