Crown land in NSW – consolidation of ownership, use and management
WHO SHOULD READ THIS
- Local Councils, land managers, State government agencies, persons who lease or licence Crown land and Aboriginal Land Councils.
THINGS YOU NEED TO KNOW
- The Crown Land Management Act 2016 (NSW) (CLM Act) was passed on 14 November 2016. The statutory provisions under the Crown Lands Act 1989 (NSW), Crown Lands (Continued Tenures) Act 1989 (NSW) and Western Lands Act 1901 (NSW) applicable to the ownership, use and management of Crown land in NSW have been consolidated and will now be governed by the single CLM Act.
- The CLM Act will not result in changes to existing reserve trusts, lessees, licence holders or other interests in Crown land. Until the Act commences, Crown land will continue to be administered in accordance with the existing legislation.
- The CLM Act for the first time will include provisions for Aboriginal management of Crown land.
- The majority of Crown land that is identified as local land will be transferred to local councils as community land and will be managed under the Local Government Act 1993 (NSW).
- The current three-tier structure of reserves, reserve trusts and reserve trust managers will be replaced with a single incorporated manager (the ‘Crown land manager’).
WHAT YOU NEED TO DO
- Local Councils, land managers, State government agencies, persons who lease or licence Crown land and Aboriginal Land Councils will need to be familiar with the new CLM Act before it comes into operation which is likely to be early 2018.
On 14 November 2016, the NSW Parliament passed the Crown Land Management Act 2016 (NSW) (CLM Act) which is anticipated to commence in early 2018. The CLM Act follows an extensive consultation process undertaken by the NSW Government on Crown land in NSW including a Crown lands legislation white paper released in 2014 which set out key elements of the Bill and a parliamentary inquiry into Crown land. More than 600 submissions were received in response to the white paper and a further 350 submissions lodged in the inquiry, which were considered in the formulation of the Bill.
The statutory provisions under the Crown Lands Act 1989 (NSW), Crown Lands (Continued Tenures) Act 1989 (NSW) and Western Lands Act 1901 (NSW) applicable to the ownership, use and management of Crown land in NSW have been consolidated and will now be governed by the single CLM Act.
The new CLM Act will not result in changes to existing reserve trusts, lessees, licence holders or other interests in Crown land.
Until the CLM Act commences, Crown land will continue to be administered in accordance with the existing legislation.
This focus article identifies the major changes to the management of Crown land in NSW as a result of the new CLM Act.
Management of Crown land
Councils will continue to manage certain land that is dedicated or reserved as Crown land. However, in the future Councils will manage Crown land under the Local Government Act 1993 (NSW) (LG Act) in accordance with the provisions that apply to ‘community land’ owned by Council, including the requirement for a plan of management, with oversight rights maintained by the Minister.
Community members and groups (known as non-council managers) will also continue to manage other land that is dedicated or reserved as Crown land under a more streamlined legislative framework. The current three-tier structure of reserves, reserve trusts and reserve trust managers will be replaced with a single incorporated manager (the ‘Crown land manager’) responsible for each Crown reserve, who will be categorised as follows:
- Category 1 managers (being Crown land managers who have proven themselves capable of meeting the highest levels of professional standards) who can grant leases or licences for a term of 10 years or less, make minor changes to leases or licences, and grant easements in connection with respect to leases and licences granted by them without approval of the Minister.
- Category 2 managers who can grant licences for a term of one year or less or make minor changes to leases or licences without approval of the Minister.
Stronger governance requirements
The new CLM Act will introduce detailed governance provisions. Under those provisions managers of Crown land are responsible for the care, control and management of Crown land and their functions must be exercised in accordance with:
- the Manager’s appointment instrument
- the regulations (which are yet to be released)
- any allocation of responsibility made by the Minister
- any applicable Crown land management rules
- any applicable plan of management, and
- any applicable community engagement strategy.
Requirements for landowner consent
Landowner consent, by the Minister, will be taken to be given for certain lower impact development applications in Crown reserves which involves certain repairs and maintenance to buildings, fences, signs and structures.
Landowner consent will also be taken to have been given for development that is consistent with an approved plan of management for a Crown reserve.
Transfer of Crown land to Councils
The Minister may vest transferrable Crown land in a local council subject to any native title rights and interests and reservations and exceptions contained in the council vesting notice. This may be appropriate where land is determined to be of local, rather than State, importance. The intention is that land of State significance, to be determined on the basis of published criteria in guidelines, would continue to be managed by the NSW Government.
If the transferrable Crown land is subject to a claim under the Aboriginal Land Rights Act 1993 (NSW) (ALR Act) written consent from the Local Aboriginal Land Council or NSW Aboriginal Land Council is required before the land can be vested in a local council.
The majority of Crown land that is identified as local land will be transferred to local councils as community land and will be managed under the LG Act, although in limited circumstances the land may be vested as operational land. The categorisation of the majority of transferred land as community land has been included in the Act to prevent the land being sold and so it is retained for a public purpose. All income derived from land transferred to Councils will be retained by Councils.
Transfer of land to other government agencies
The Minister may vest transferrable Crown land to the following government agencies:
- a Minister, or agency of the State, which has power to hold land in the exercise of the Minister’s or agency’s functions (i.e. state owned corporation or any other statutory corporation prescribed by regulations), and
- an agency of the Commonwealth capable of holding property in its own name.
The Minister may only vest Crown land to these agencies in circumstances where it would be in the public interest to do so.
Community engagement strategies
The Minister will be required to approve community engagement strategies for dealings or other action affecting Crown land use. The strategies will set out community engagement procedures and standards that must be complied with for certain Crown land management and dealings. The Government has indicated that these community engagement strategies will be developed in 2017, following stakeholder consultation.
Dealings or other action affecting Crown land use are as follows:
- the alteration or removal of a purpose for which Crown land is dedicated or reserved
- the selling, transferring or vesting of Crown land (except if it is required or permitted under the ALR Act)
- the granting of leases (except purchasable leases), licences or permits over Crown land
- the preparation of plans of management for Crown land, and
- the preparation of a State strategic plan for Crown land.
Recognising and protecting Aboriginal interests
The new CLM Act explicitly recognises and supports Aboriginal land rights, native title rights, and their interests and involvement in the management of Crown Land. There is a specific provision under the CLM Act to facilitate compliance with the Native Title Act 1993 (Cth). The Act prescribes that all vesting of land in councils is subject to native title rights and interests in the land so that native title is not extinguished when land is vested.
There is also a provision under the CLM Act to enable the co-management of reserved Crown land by Aboriginal parties. Crown land managers, including Councils, are to employ or engage native title managers to provide advice on certain dealings with and other action affecting the land that may affect native title tights and interests.
Consistent approach to Crown land tenures
There will be uniform provisions under the CLM Act for tenures. The maximum term of leases over Crown land will be 100 years. Permissive occupancies under the Crown Lands (Continued Tenures) Act 1989 (NSW) will be converted to standard Crown land licences.
Protection of Crown land
The new CLM Act introduces updated and expanded enforcement and compliance provisions for Crown land. There will be broader powers and higher penalties. The Minister of Lands will have the power to:
- require the Department of Industry – Lands to audit compliance with the legislation, leases and licences, and
- appoint staff of the Department of Industry – Lands, Crown land manager or other government agency as an authorised officer.
Authorised officers will have broad powers. Authorised officers may issue:
- rectification and remediation notices to ensure that Crown land is restored to its former condition
- removal directions requiring removal of materials unlawfully on Crown land, and
- stop-activity orders to stop unlawful, unsafe, or dangerous activities being carried out on Crown land.
Prosecutions may be brought in either the Local Court or in the Land and Environment Court.
The future of Crown land in NSW
The CLM Act allows for greater local decision making and strengthens opportunities for community involvement. Importantly, the CLM Act for the first time will include provisions for Aboriginal management of Crown land. The CLM Act will ultimately result in a more streamlined and transparent approach to the management of Crown lands in NSW.
This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.