New South Wales Consolidated Acts New South Wales Consolidated ActsIntroductory note--: The former Hay Irrigation Act 1902 and Wentworth Irrigation Act 1890 enabled the Lands Administration Ministerial Corporation constituted by the Crown Lands Act 1989 to grant certain tenures (including leases and incomplete purchases) over land within areas specified in each of those former Acts. Schedule 7 to this Act provides for land in these areas to become Crown land.
This Schedule continues these tenures in force under this Act and makes special provision for them, including by continuing to apply some of the provisions of the former Acts.
In addition, section 1.13 provides that the provisions of this Schedule prevail over those of Parts 5-7 of this Act to the extent of any inconsistency.
(1) This Schedule applies in relation to continued irrigation tenures.
(2) This Schedule does not apply in relation to a lease or incomplete purchase that is a continued tenure (as defined in Schedule 1).Note--: Schedule 1 makes special provision for continued tenures.
(3) Also, this Schedule applies subject to Schedule 4 in relation to continued irrigation leases that are purchasable leases (except as provided by Division 2 of Part 2 of this Schedule).Note--: Schedule 4 enables land under certain leases over Crown land (including continued irrigation leases) to be purchased by leaseholders.
In this Schedule--
"continued incomplete irrigation lease purchase" is defined in Part 4 of this
Schedule.
"continued irrigation lease" means a lease in force under a repealed
irrigation Act immediately before the Act's repeal.
"continued irrigation tenure" means--
(a) a continued incomplete irrigation lease purchase, or
(b) a continued irrigation lease.
(a) the Hay Irrigation Act 1902 ,
(b) the Wentworth Irrigation Act 1890 .
(1) A continued irrigation tenure over land remains in force under this Act as--(a) for a continued irrigation lease--a lease under this Act over the same land, and(b) for a continued incomplete irrigation lease purchase--an incomplete purchase under this Act of the same land.
(2) A continued irrigation tenure for a term does not (except as provided by this Act) remain in force beyond the end of that term.
(3) A continued irrigation tenure for an indefinite term, or a term that exceeds the maximum term for a tenure of that kind under another provision of this Act, remains in force indefinitely or for the remainder of its term despite that provision.
(4) The terms and conditions of a continued irrigation tenure remain the same subject to any variations made by or under this Act.
(5) Any rent, royalty, deposit, fee, purchase price, instalment, interest or other amount payable for a continued irrigation tenure remains payable in the same way and the same amounts subject to any variations made by or under this Act.
(6) A continued irrigation tenure can be varied, forfeited, revoked, terminated, cancelled or dealt with in any other way under this Act as if it had been granted under this Act.
(7) To avoid doubt, any sublease or sublicence of a continued irrigation tenure also remains in force under this Act.
(8) A continued irrigation tenure does not cease to be a continued irrigation tenure just because it is renewed or extended.
(9) This clause has effect subject to the other provisions of this Schedule. In particular, any terms or conditions of a tenure preserved by this clause do not have effect to the extent of any inconsistency with those provisions or the provisions of Schedule 4.Note--: Clause 1 (3) also provides that this Schedule applies subject to Schedule 4 in relation to purchasable leases that are continued irrigation leases.
(10) In this clause--
"terms and conditions" includes covenants, reservations, exceptions, exemptions, provisions and prohibitions.
"variations" include--(a) for any terms and conditions--alterations, removals or omissions, and(b) for any amounts--waivers, reductions, remissions or postponements.
(1) This Schedule does not affect the continuation of any third party interest in land under a tenure that becomes a continued irrigation tenure because of the operation of this Schedule.
(2) A
"third party interest" in land under a tenure is a mortgage, easement, right of way or other interest in the land of a person except the holder of the tenure.
(1) In the folio of the Register relating to a continued irrigation tenure--(a) a reference to a repealed irrigation Act is to be read as being a reference to this Act, and(b) a reference to a provision of a repealed irrigation Act is to be read as being a reference to the corresponding provision (if any) of this Act.
(2) Subclause (1) extends to a reference in a folio of the Register that, because of a provision of a repealed irrigation Act, was required to be read as being a reference to a repealed irrigation Act (or a provision of a repealed irrigation Act).
(3) For the purposes of this clause, a provision of this Act is a
"corresponding provision" in relation to a provision of a repealed irrigation Act if the provision of this Act corresponds (or substantially corresponds) to the provision of the repealed irrigation Act.
(4) The regulations may, for the purposes of subclause (3), declare a provision of this Act to be a corresponding provision of a repealed irrigation Act. The regulations may do so even if the provision of this Act is not substantially the same as that of the repealed irrigation Act.
(1) This Division applies in relation to pending irrigation lease purchases.
(2) A
"pending irrigation lease purchase" is a proposed purchase of land under a lease that becomes a continued irrigation lease when this Schedule commences if--(a) the holder of the lease is the proposed purchaser, and(b) for land under a mortgage--each mortgagee has given written consent to the purchase, and(c) a contract of sale for the land has not yet been entered (including because the purchase price has not been finalised).
(3) The provisions of this Division prevail over the provisions of Schedule 4 to the extent of any inconsistency.
(1) A pending irrigation lease purchase is to be treated by the Minister as if it were an application for the purchase of the land under Schedule 4.
(2) For this purpose, the purchase application is to be treated as if it were--(a) for an application of a kind that the Minister was required to grant under a repealed irrigation Act if it was duly made--an application based on an existing purchase right in relation to the land (as defined in Schedule 4), or(b) for an application of a kind that the Minister had a discretion to grant under a repealed irrigation Act if it was duly made--an application based on an existing application right in relation to the land (as defined in Schedule 4).
Note--: See clause 10 of Schedule 4 for provisions about how the purchase price will be determined.
(1) This clause applies to an objection or appeal against the purchase price for land to which a pending irrigation lease purchase relates that was made under an existing review provision, but not finally determined, before the commencement of this Schedule.
(2) An existing review provision continues to apply to the determination of the objection or appeal made under it as if--(a) a reference to the Lands Administration Ministerial Corporation constituted by the Crown Lands Act 1989 were a reference to the Minister, and(b) the provision (as modified by paragraph (a)) formed part of this Division.
(3) In this clause--
"existing review provision" means--(a) section 19B of the Hay Irrigation Act 1902 , or(b) section 22C of the Wentworth Irrigation Act 1890 .
(1) The Minister must, on determining a purchase price for land to which a pending irrigation lease purchase relates, give notice of the determination to the applicant.
(2) The notice must include information to the effect that the applicant may object to the purchase price determined by the Minister.
(3) The Minister must consider any objection lodged and by notice inform the objector--(a) whether the determination of the purchase price is to stand or be varied, and(b) that the objector, if dissatisfied with the Minister's decision, may appeal as provided by subclause (4).
(4) An applicant may appeal against the Minister's decision--(a) if the purchase price determined does not exceed $150,000 or any greater amount that may be prescribed by the regulations--to the Civil and Administrative Tribunal, or(b) in any other case--to the Land and Environment Court.Note--: An appeal to the Civil and Administrative Tribunal under this clause is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013 . A decision of the Tribunal on such an external appeal may be appealed to the Land and Environment Court under Schedule 1 to that Act.
(5) The Civil and Administrative Tribunal, or the Land and Environment Court, on hearing the appeal, may affirm the Minister's determination or substitute its own.
(1) To avoid doubt, the Minister has a discretion as to whether to grant consent to a transfer or other dealing for the purposes of a provision of this Schedule.
(2) The Minister may grant a waiver under clause 12 instead of granting consent for the purposes of a provision of this Schedule even if an application for the waiver has not been made.
(1) The Minister may, by notice published in the Gazette, declare that the Minister's consent is not required under this Schedule to a transfer of a continued irrigation lease over specified land (or a class of land).
(2) The declaration has effect despite the provision of this Schedule that requires the consent.
(3) If any land to which a declaration relates is land under the Real Property Act 1900 , the Registrar-General must make an appropriate recording in respect of that land in the Register.
(1) The holder of a continued irrigation lease or the mortgagee in possession of land under the lease may apply to the Minister for a waiver of any requirement under this Schedule for the Minister to give consent to a transfer.
(2) The application must--(a) be made before any agreement or other arrangement for the transfer is made by the holder, and(b) specify the land to which the transfer relates.
(3) The Minister may, by written notice given to the applicant, grant the waiver for the period (if any) specified and subject to any conditions that the Minister decides to impose.
(4) The waiver has effect despite the provision of this Schedule that requires the consent.
(5) The Registrar-General may rely on the notice when accepting or registering any transfer or other dealing to which the waiver relates if the transfer or dealing is lodged while the waiver is in effect.
(1) A provision of this Schedule requiring the Minister's consent to a transfer or other dealing involving land does not prevent--(a) the creation, transfer or extinguishment of a sublease or mortgage, or(b) the creation, transfer or extinguishment of an easement over land if it is under a perpetual lease.
(2) However, the following provisions apply to the subleasing of land held under a lease (the
"head lease" )--(a) the sublease must--(i) specify the purpose for which the land may be used under the sublease and that purpose must be consistent with the purpose for which the land may be used under the head lease or with a purpose prescribed by the regulations, and(ii) provide that it terminates when the head lease terminates,(b) the holder of the head lease must notify the Minister of the granting of the sublease within 28 days after it is granted,(c) the holder of the head lease must take all reasonable steps to ensure that the holder of the sublease complies with the requirements of this Act and the conditions of the head lease with respect to the land.
Note--: See also Part 2 of this Schedule. In particular, clause 3 provides that (subject to this Schedule) any rent, royalty, deposit, fee, purchase price, instalment, interest or other amount payable for a continued irrigation tenure remains payable in the same way and the same amounts subject to any variations made by or under this Act.
(1) A continued irrigation lease cannot be transferred without the Minister's written consent.
(2) To avoid doubt, the Minister has a discretion as to whether to grant consent.
In this
Division--
"initial period" means the 2-year period beginning on the day that this
Schedule commences.
(1) Subject to this Division, rent for a continued irrigation lease remains payable during the initial period in the same way and the same amounts as it was payable under the repealed irrigation Act under which it was granted.
(2) For this purpose, any rent shown as payable in the records of the Department remains, until the contrary is proved, payable in the amounts and manner, and at the time, indicated in those records.
(3) Section 12.12 (Interest on arrears) applies to rent in arrears during the initial period.
(4) The following provisions apply during the initial period for a continued irrigation lease that was granted under the Hay Irrigation Act 1902 --(a) the rent remains payable annually and in advance,(b) section 6.4 (Annual rent cannot generally be less than minimum rent) applies to the annual rent for a continued irrigation lease.
(5) This clause does not limit the application of section 12.15 (Waiver, reduction, remission, postponement or rebate of certain amounts) to rents for continued irrigation leases.
(1) The Secretary may, by notice given to the holder of a continued irrigation lease, redetermine the rent for the lease. The Secretary may do so at any time (whether during or after the expiry of the initial period).
(2) A notice for the redetermination of rent for a continued irrigation lease made during the initial period must provide that the redetermination takes effect only when the initial period ends.
(3) If rent is not redetermined during the initial period, the Secretary must redetermine it as soon as reasonably practicable after the initial period ends.
(4) Where there is a rent redetermination under this clause (the
"initial rent redetermination" ) for a continued irrigation lease that does not provide for rent redeterminations, the rent for the lease is to be varied for inflation on the date of each anniversary of the initial rent redetermination (the
"CPI adjustment date" ) in accordance with the following formula--
"R" is the rent adjusted for inflation.
"C" is the rent payable immediately before the CPI adjustment date.
"P2" is the Consumer Price Index number for the last quarter for which a number was published before the CPI adjustment date.
"P1" is the Consumer Price Index number for the last quarter for which a number was published before the initial rent redetermination or last CPI adjustment date (as the case requires).
(5) Any redetermination of rent under this clause must be in accordance with Part 6 of this Act. For this purpose, that Part applies as if the continued irrigation lease made no provision for how rent is to be redetermined.Note--: Division 6.3 of this Act will require the rent to be redetermined by reference to the market rent for the land.
(6) This clause applies despite any other provision of this Schedule or the terms and conditions of the continued irrigation lease.
To avoid doubt, Part 6 of this Act applies in relation to rent for a continued irrigation lease after the initial period ends, subject to clause 17.
Note--: Section 6.7 (2) provides that the following provisions apply if the Secretary is required or permitted to redetermine the rent for a holding in circumstances other than those set out in section 6.7 (1)--(a) subject to paragraphs (b) and (c), the Secretary may redetermine the rent as often as the Secretary considers appropriate or as required by the regulations unless the holding's provisions provide differently,(b) the rent must be redetermined at least once every 5 calendar years,(c) the rent for a holding cannot be redetermined more than once in each calendar year unless the redetermination is required because of a change in the area of the holding.
(1) This Part applies to incomplete irrigation lease purchases (but not to pending irrigation lease purchases).Note--: See also Part 2 of this Schedule. In particular, clause 3 provides that (subject to this Schedule) any rent, royalty, deposit, fee, purchase price, instalment, interest or other amount payable for a continued irrigation tenure remains payable in the same way and the same amounts subject to any variations made by or under this Act.
(2) A
"continued incomplete irrigation lease purchase" is a purchase of land that was formerly under a lease granted under a repealed irrigation Act if the payment of the purchase price or any other amount due in respect of the purchase was not complete immediately before the Act's repeal.
(1) Subject to this Part and the regulations, Part 5 of Schedule 4 applies in relation to continued incomplete irrigation lease purchases in the same way as it applies in relation to new incomplete purchases.
(2) The regulations may make provision for or with respect to the modification of Part 5 of Schedule 4 in its application to continued incomplete irrigation lease purchases.
(1) A continued incomplete irrigation lease purchase continues to be governed by the contract of sale for the land (including with respect to when title to the land purchased passes and the granting of mortgages), subject to this Part.
(2) Without limiting subclause (1), a continued incomplete irrigation lease purchase remains subject to any covenants required to be entered into by the former Ministerial Corporation.
(3) The contract of sale is taken to have been entered into by the Minister on behalf of the Crown without the need for any novation. Accordingly, any reference to the former Ministerial Corporation is taken to be a reference to the Minister, except as provided by subclause (4).
(4) Any mortgage over the land under a continued incomplete irrigation lease purchase granted by the former Ministerial Corporation continues to be held by the Ministerial Corporation under this Act on behalf of the Crown.
(5) In this clause--
"former Ministerial Corporation" means the Lands Administration Ministerial Corporation as it was constituted by the Crown Lands Act 1989 .
(1) The purchase price for a continued incomplete irrigation lease purchase--(a) for a purchase under the Hay Irrigation Act 1902 resulting from an application for purchase made on or after 1 July 2004--remains payable in full within the time that had been required by the former Lands Administration Ministerial Corporation constituted by the Crown Lands Act 1989 , and(b) for a purchase in any other case--remains payable by 74 equal half-yearly instalments along with the applicable annual interest rate (with the first instalment payable on the date of purchase).
(2) The
"applicable annual interest rate" is 4 percent or any other rate that may be prescribed by the regulations.
(1) This clause applies to a continued incomplete irrigation lease purchase resulting from the purchase of land formerly under a lease granted under the Hay Irrigation Act 1902 .
(2) A half-yearly instalment of the purchase price of land under a continued incomplete irrigation lease purchase to which this clause applies is not to be less than the minimum half-yearly instalment payable at the due date.
(3) If a half-yearly instalment of the purchase price of land (whether with or without interest added) is less than the minimum half-yearly instalment, the half-yearly instalment is increased to the minimum half-yearly instalment.
(4) For the purpose of this Part, the minimum half-yearly instalment at each due date is determined in accordance with the following formula--
"M" is the minimum half-yearly instalment.
"B" is the half-yearly instalment base.
"C" is the Consumer Price Index number for the last quarter for which such a number was published before the due date for the half-yearly instalment.
"D" is the Consumer Price Index number for the last quarter for which such a number was published before the half-yearly instalment base adjustment date.
(5) If the balance of purchase money and interest owing in respect of the continued incomplete irrigation lease purchase is at any time less than the amount of the minimum half-yearly instalment, the balance only is payable.
(6) In this clause--
"half-yearly instalment base" means $175 or any higher amount that may be prescribed by the regulations.
"half-yearly instalment base adjustment date" means 1 July 2004 or, if the half-yearly instalment base is prescribed by the regulations, the date prescribed by the regulations as the half-yearly instalment base adjustment date.
This Schedule does not limit Division 7.4 (Forfeiture of holdings) of this Act in its application to an incomplete irrigation lease purchase, except to the extent provided by Part 5 of Schedule 4 (as applied by clause 20 of this Schedule).
