New South Wales Consolidated Acts New South Wales Consolidated ActsIntroductory note--: The Crown Lands (Continued Tenures) Act 1989 continued in force certain leases that enabled its holders to purchase the land under the lease. It also continued in force certain incomplete purchases of land under leases of these kinds. The Hay Irrigation Act 1902 , Wentworth Irrigation Act 1890 and Western Lands Act 1901 also permitted certain leaseholders to purchase land under a lease. Schedules 1-3 to this Act continue these leases in force under this Act.
This Schedule makes special provision for the purchase of land under these leases, including by continuing to apply some of the provisions of the former Acts. It also allows for the purchase of certain land under both continued and new perpetual leases in the Western Division. 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.
This Schedule applies to each of the following kinds of leases--
(a) Western lands perpetual leases,
(b) continued tenure perpetual leases,
(c) continued term leases.
Note--: Clause 3 (2) provides that the holder of a Western lands perpetual lease or continued Western lands term lease can apply to purchase the land only--(a) if the Minister is permitted to sell the land under section 5.9, or(b) in any other circumstances prescribed by the regulations.
In this Schedule--
"continued tenure perpetual lease" means a perpetual lease continued in force
by Schedule 1 or 2.
"continued tenure term lease" means a term lease continued in force by
Schedule 1 or 2.
"continued term lease" means--
(a) a continued tenure term lease, or
(b) a continued Western lands term lease.
(a) in relation to a right under the Western Lands Act 1901 --immediately before the repeal of section 28BB of, and Schedule 4 to, that Act, and
(b) in relation to a right under any other repealed holding Act--immediately before the Act's repeal.
(a) in relation to a right under the Western Lands Act 1901 --immediately before the repeal of section 28BB of, and Schedule 4 to, that Act, and
(b) in relation to a right under any other repealed holding Act--immediately before the Act's repeal.
(a) a lease that is liable to forfeiture, or
(b) a lease that can no longer be purchased.
(a) the Crown Lands (Continued Tenures) Act 1989 ,
(b) the Hay Irrigation Act 1902 ,
(c) the Wentworth Irrigation Act 1890 ,
(d) the Western Lands Act 1901 .
(a) a continued Western lands perpetual lease, and
(b) a perpetual lease over Western Crown land granted under this Act.
(1) The holder of a purchasable lease may apply to the Minister to purchase the whole or part of the land under the lease.Note--: Part 3 of this Schedule provides for the circumstances in which the Minister may or must grant an application. Additional circumstances may also be prescribed under Part 6 of this Schedule.
(2) However, the holder of a Western lands perpetual lease or continued Western lands term lease can apply only--(a) if the Minister is permitted to sell it under section 5.9, or(b) in any other circumstances prescribed by the regulations.Note--: Section 5.9 provides for the circumstances in which the Minister can sell Western Crown land.
(3) A purchase application must be made in the form and manner approved by the Minister.
(4) A purchase application may be withdrawn by the lessee at any time before it is granted or refused.
(5) A purchase application can relate to lands under 2 or more perpetual leases held by the same holder, but only if the lands are adjoining.
(1) An applicant who makes a purchase application is liable to pay to the Crown--(a) if a survey fee has not been paid in respect of the lease to which the application relates--the applicable survey fee, and(b) if a survey is necessary as a result of the purchase and the survey is carried out by the Crown--the cost of the survey as assessed by the Minister.
(2) The
"applicable survey fee" for subclause (1) (a) is any fee prescribed by the regulations for the Division of the State in which the land is located.
(3) The Minister may permit an applicant to have any necessary survey carried out (at the applicant's own expense) by a registered land surveyor within the meaning of the Surveying and Spatial Information Act 2002 in accordance with any special requirements of the Minister.
(4) If a survey is to be carried out by the Crown and not as provided by subclause (3), the Minister may require the applicant to pay the estimated cost before the survey is carried out and refuse the application if the estimated cost is not paid.
(5) To avoid doubt, the cost of a survey includes the cost of surveying all or any interests or rights of third parties on the land concerned that the Minister directs (for example, third party access rights, travelling stock rights and other rights that could be protected by the creation of an easement).
(6) The Minister may waive any fees or costs payable under this clause.
(1) The Minister may grant a purchase application for Crown land under a Western lands perpetual lease if the Minister is satisfied that the applicant was entitled to make the application (as provided by clause 3 (2)).
(2) The regulations may make provision for or with respect to any other considerations that may or must be taken into account in determining whether to grant or refuse purchase applications (or kinds of purchase applications) under subclause (1), including (without limitation)--(a) considerations concerning environmental impacts, and(b) considerations concerning impacts on third parties (for example, impacts on access to land).
(1) The Minister may grant a purchase application for Crown land under a continued tenure perpetual lease--(a) if the Minister is satisfied that--(i) there was an existing application right in relation to the land, or(ii) the lessee would have had a right to have the application granted under subclause (2) if it had been made within the 2-year period referred to in that subclause, or(b) in any other circumstances prescribed by the regulations.
(2) However, the Minister must grant a purchase application for Crown land under a continued tenure perpetual lease--(a) if there was an existing purchase right in relation to the land and the application is made within 2 years after the repeal of the repealed holding Act under which the right arose, or(b) in any other circumstances prescribed by the regulations.Note--: An applicant may still make an application under subclause (1) after the expiry of the 2-year period. However, the Minister is not required to grant applications under subclause (1).
(3) The regulations may make provision for or with respect to any other considerations that may or must be taken into account in determining whether to grant or refuse purchase applications (or kinds of purchase applications) under subclause (1).
(1) The Minister may grant a purchase application for land under a continued term lease--(a) if there was an existing application right in relation to the land under the term lease and the application is made within the application period, or(b) in any other circumstances prescribed by the regulations.
(2) However, the Minister must grant a purchase application for land under a continued term lease--(a) if there was an existing purchase right in relation to the land and the application is made within the application period, or(b) in any other circumstances prescribed by the regulations.
(3) The
"application period" for the purposes of this clause is--(a) for a continued term lease for which there is an existing application right or existing purchase right arising under the Western Lands Act 1901 --5 years after the day on which section 28BB of, and Schedule 4 to, that Act are repealed, or(b) for a continued term lease for which there is an existing application right or existing purchase right arising under any other repealed holding Act--5 years after the day on which that Act is repealed.
(4) The regulations may make provision for or with respect to the considerations that may or must be taken into account in determining whether to grant or refuse purchase applications (or kinds of purchase applications) under subclause (1).
(5) A continued term lease that expires during the application period is taken to be extended until the end of the application period, unless it is revoked, surrendered or forfeited sooner under this Act.
The Minister is to determine the purchase price for land to which a successful purchase application relates in accordance with this Division.
(1) The purchase price for land to which a successful purchase application relates is to be one of the following--(a) the market value of the land determined by the Minister as at the date of the application,(b) if the Minister elects--the latest land value of the land determined in accordance with the Valuation of Land Act 1916 as at the date of the application.
(2) The Minister may make an election under subclause (1) (b) by a written notice given to the applicant.
(3) Any improvements on the land that were made by the lessee, or are owned or in the course of being purchased from the Crown by the lessee, must be disregarded in determining a purchase price based on the market value of the land.Note--: Section 6A of the Valuation of Land Act 1916 already provides that land value determined under that Act is not to take into account improvements made by the owner (which includes a lessee because the lessee holds an interest in the land).
(4) If it appears to the Minister that the purchase value of the land has been reduced by any act, default or neglect of the holder, the Minister must determine the purchase price as if the reduction in value had not taken place.
(1) Despite clause 9, the purchase price for land to which a successful purchase application relates is to be--(a) for land under a Western lands perpetual lease or continued Western lands term lease that the Minister is satisfied is predominantly used for primary production (including for grazing, agricultural, pastoral or mixed farming purposes)--3 percent of the market value, or 3 percent of the land value of the land determined in accordance with the Valuation of Land Act 1916 , as determined by the Minister at the date of the application, or(b) for land to which a transferred pending purchase relates--a purchase price determined in accordance with the provisions of the relevant repealed holding Act, or(c) for land under a continued tenure perpetual lease--a purchase price determined in accordance with the provisions of the relevant repealed holding Act.
(2) Subclause (1) (c) ceases to apply to purchase applications made more than 2 years after the day on which the relevant repealed holding Act is repealed.
(3) In this clause--
"transferred pending purchase" means--(a) a pending tenure purchase (as defined in Schedule 1), or(b) a pending irrigation lease purchase (as defined in Schedule 2), or(c) a pending Western lands lease purchase (as defined in Schedule 3).
(1) The Minister may determine that the purchase price for land to which a successful purchase application relates is to be paid by annual instalments.
(2) The minimum annual instalment is to be $2,500 or any other amount that may be prescribed by the regulations.
(3) The Minister may allow annual instalments to be paid over a period determined by the Minister (provided the period does not exceed 20 years).
(4) However, the Minister must allow the payment of the purchase price to be paid over a period of 20 years if--(a) the land purchased is land referred to in clause 10 (1) (a) under a perpetual lease, or(b) the land purchased is under a continued tenure perpetual lease, or(c) the land purchased is Western or irrigation land under a continued term lease.
(5) The Minister may require interest to be paid with respect to a purchase price that is payable by instalments. The regulations may make provision for or with respect to the determination or calculation of the interest payable for instalment purchases.
(6) In this clause--
"Western or irrigation land" means--(a) Western Crown land, or(b) any land that was in the
"Area" as defined in the Hay Irrigation Act 1902 immediately before the Act's repeal, or(c) any land that was in the
"Area" as defined in the Wentworth Irrigation Act 1890 immediately before the Act's repeal.
(1) An applicant who has made a purchase application and considers that a purchase price based on the market value determined by the Minister is greater than the actual market value of the land may lodge an objection with the Minister in the form and manner approved by the Secretary. However, only one objection can be lodged under this subclause and it must be lodged within 60 days of the determination.
(2) The applicant must provide the Minister with any evidence and particulars that the Minister may reasonably require in support of the objection.
(3) The Minister must consider an objection that is duly made under subclause (1) (including any relevant information provided with it) and, if the Minister considers that the market value is lower than the Minister originally determined, must adjust the purchase price accordingly.
(4) An applicant who has made a purchase application and is dissatisfied with a purchase price based on the land value of the land as determined in accordance with the Valuation of Land Act 1916 may object to the Valuer-General against the land valuation under Part 3 of that Act. However, Part 4 of that Act does not apply in relation to the Valuer-General's determination of the objection.
(5) The provisions of Part 3 of the Valuation of Land Act 1916 apply for the purposes of subclause (4) as if the period of 60 days referred to in section 35 (1) of that Act ran from the day on which the Minister gave the applicant written notice under clause 9 of the election to use the land value.
(6) A decision of the Valuer-General under this clause is final and binding on the applicant and the Minister.
(1) The Minister may, when granting a purchase application, do any one or more of the following in relation to the land to which the application relates--(a) exclude any areas required for roadways or other public purposes from the land,(b) modify in any other way the boundaries of the land,(c) create easements for public access over the land.
(2) Any areas excluded from the land for roadways or other public purposes or because of modification of boundaries are surrendered to the Crown.
(3) The applicant may appeal to the Civil and Administrative Tribunal against any decision under this clause--(a) to exclude land, or(b) to create an easement for public access.Note--: An appeal to the Civil and Administrative Tribunal under this subclause 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.
(4) Sections 5.51 and 5.52 (except section 5.51 (1)) apply to and in respect of the creation of an easement under this clause in the same way as they apply to and in respect of the creation of easements under section 5.51.
(5) The Civil and Administrative Tribunal may hear and determine an appeal under subclause (3) and may make any order or decision that it considers appropriate.
(6) The order or decision of the Civil and Administrative Tribunal may include either or both of the following--(a) an order requiring the creation of an easement for public access under subclause (1) (c) instead of the exclusion of land under subclause (1) (a),(b) a redetermination of the purchase price (or a requirement that the Minister redetermine the purchase price) having regard to any variation in the area of land to be purchased.
(1) The Minister may limit the granting of a purchase application to the surface of the land or to the surface and a stated depth below the surface.
(2) Any land that is excluded by the limitation is surrendered to the Crown.
(1) This clause applies if only part of the land to which a lease applies is purchased under a successful purchase application.
(2) The Secretary must redetermine the annual rent for the remaining part of the lease in accordance with Part 6 of this Act for the remainder of the current rent redetermination period applicable to the lease.
(3) The Minister may make any consequential alterations to the purposes and conditions of a lease as the Minister considers to be necessary because of the purchase of part of the land to which the lease relates.
(1) This clause applies if there is a mortgage over the lease of land to which a successful purchase application relates when the application is granted.
(2) The mortgagee under the mortgage--(a) retains the rights, powers and remedies that are expressly or impliedly given to the mortgagee against the mortgagor by the mortgage, and(b) has, in respect of the land and to the extent that they are relevant, the same rights, powers and remedies as the mortgagee had in respect of the lease.
The granting of a purchase application does not affect any easement that is appurtenant to, or a burden on, the land to which the application relates.
This Part applies to a purchase of land under a purchasable lease on or
after the commencement of this Schedule if the payment of the purchase price
or any other amount due to the Crown in respect of the purchase is not
complete (a
"new incomplete purchase" ).
(1) The holder of a new incomplete purchase has an estate in fee simple in the land comprised in the purchase subject to--(a) any recordings in the folio of the Register created in respect of it and to the provisions of this Act (including, in particular, this Schedule), and(b) any conditions that applied to the lease over the land purchased that the Minister may specify at the time of granting the purchase application.
(2) The title to a new incomplete purchase commences from a date determined by the Minister, except as provided by subclause (3).
(3) If the Minister, when granting the purchase application, imposes a restriction on use or public positive covenant in accordance with Division 5.10 of this Act, the land remains vested in the Crown, or held on behalf of the Crown, until the time that the restriction on use or public positive covenant has been recorded on the relevant folio of the Register.
(4) Clause 5 of Schedule 1 to the Forestry Act 2012 extends to land under a new incomplete purchase, on and from its commencement, in the same way as it applies to purchase-tenure land (as defined in that Schedule).Note--: Clause 5 of Schedule 1 to the Forestry Act 2012 creates a profit à prendre reserved to the Crown to enable the Forestry Corporation under that Act to take timber and other forest products from land under certain incomplete purchases called purchase-tenure land. The profit à prendre expires at the end of a period of 10 years from the date on which the land became purchase-tenure land.
(5) In any folio of the Register created in respect of land purchased or being purchased under a new incomplete purchase the Registrar-General must, if the land is affected by a profit à prendre reserved to the Crown under clause 5 of Schedule 1 to the Forestry Act 2012 , record a statement to the effect that the land is affected by it.
(6) The recording has effect as if the reservation of the profit à prendre had been included in an instrument of conveyance or transfer from the Crown.
(1) The holder of a new incomplete purchase must--(a) comply with any provisions, conditions or covenants recorded in the folio of the Register created for the holding, and(b) comply with any conditions imposed by the Minister (as referred to in clause 19 (1) (b)), and(c) comply with the requirements of any law relating to the use or management of the land being purchased, and(d) if there are any improvements on the land being purchased from the Crown--(i) maintain those improvements in good order and repair, and(ii) if required by the Minister to do so--keep the improvements insured against fire and any other risks prescribed by the regulations with an insurer approved by the Minister, and(e) pay the balance of the purchase price in the instalments and at the times required by the Minister for the purchase.
(2) Also, the holder of a new incomplete purchase must not do (or permit or allow another person to do) anything that will materially degrade the land being purchased.
(1) When the title to a new incomplete purchase commences, the following amounts are payable to the Crown--(a) any duty payable under the Duties Act 1997 in respect of the purchase,(b) any rent (including rent for Crown improvements) payable on the lease up to the commencement of title to the incomplete purchase,(c) any outstanding postponed or funded debts in respect of the lease (whether or not due for payment) together with interest up to the commencement of title to the incomplete purchase,(d) the cost of any necessary survey carried out by the Crown,(e) any other amounts determined by the Minister as payable on the commencement of the title.
(2) If any of those amounts have not been paid within 3 months of being demanded, the Minister may declare that the new incomplete purchase is forfeited and any money paid in connection with the purchase may (by the declaration) be forfeited to the Crown.
(3) If there are any other debts outstanding in respect of the lease, they continue (subject to this clause and any increased rate of interest required by this Act) to be payable to the Crown in the same manner as they were payable before the commencement of title to the new incomplete purchase.
(4) If any amount payable to the Crown after the commencement of title to a new incomplete purchase is payable in equal annual instalments over a period without the interest added, the Minister may vary the manner of payment so that the amount is payable in equal annual instalments over the same or a longer period with the interest added.
This Schedule does not limit section 13.2, which excludes minerals from any sale of Crown land (including by means of a new incomplete purchase).
This Schedule does not limit Division 7.4 (Forfeiture of holdings) of this Act in its application to a new incomplete purchase, except as provided by clause 24 (4).
(1) On the recording in a folio of the Register of the first transfer of the whole or a part of a new incomplete purchase after the commencement of this clause, all money owing to the Crown in respect of the new incomplete purchase (whether or not payable by instalments which have not then become due) becomes due and payable.
(2) An amount due under this clause and unpaid is payable by the holder for the time being of the new incomplete purchase.
(3) An amount due under this clause bears interest at the following rates from the date the amount becomes due to the date of payment--(a) for the first 3 months--a rate which is the same as the rate for the time being applying to the payment of the purchase money for the new incomplete purchase,(b) after that--the rate that is prescribed by the regulations for the time being for the purposes of this paragraph.
(4) If any of these amounts has not been paid within 3 months of being demanded--(a) the Minister may declare that the new incomplete purchase is forfeited and any money paid in connection with the purchase may (by the declaration) be forfeited to the Crown, and(b) the transfer becomes voided on the forfeiture.
(5) In this clause--
"transfer" does not include a change of ownership that results from any of the following--(a) a devise under a will,(b) the taking of an interest under an intestacy,(c) survivorship of a joint tenant,(d) a discharge of mortgage,(e) a transfer to the Official Trustee in Bankruptcy,(f) a transfer by order of the Federal Circuit and Family Court of Australia (Division 1) or under a provision of the Family Law Act 1975 of the Commonwealth (except a transfer to a person who is not a party to, or a child of, the marriage),(g) a transfer by order of any other court (except a transfer effected under a writ of execution) if the Minister has directed that this clause is not to apply to the transfer.
(1) The holder of a new incomplete purchase cannot subdivide the land being purchased unless the Minister gives written approval for it.
(2) An application for approval must be made in the manner and form approved by the Minister.
(3) The applicant must meet all costs incurred in dealing with the application.
(4) The Minister may--(a) refuse the application, or(b) with the consent of the Water Administration Ministerial Corporation, approve the subdivision either unconditionally or conditionally.
(5) A condition of an approval also has effect as a condition attaching to any new incomplete purchase resulting from the subdivision.
(6) The Minister may make any consequential changes to the conditions or purpose of a subdivided new incomplete purchase as the Minister considers are necessary as a result of the subdivision.
(1) The Minister may exclude from a subdivision of land under a new incomplete purchase any areas of land required for roads of access to the subdivided portions.
(2) Excluded areas of land become Crown land when approval is given for the subdivision.Note--: See section 1.10 (When land becomes Crown land because of this Act).
(1) The Minister may apportion any purchase price, instalments of purchase money or other money payable in respect of a subdivided new incomplete purchase to each portion of the subdivided holding in a way that seems appropriate to the Minister.
(2) A part of a purchase price apportioned under subclause (1) to a portion of a subdivided new incomplete purchase is to be determined as if a successful purchase application had been made for the portion.
When approval is given to a subdivision of a new incomplete purchase, each portion of the subdivided new incomplete purchase is taken to be held (and to be transferable) as separate new incomplete purchases over each of the subdivided portions of land.
The regulations may make provision for or with respect to the following--
(a) additional circumstances to those in Part 3 of this Schedule in which the Minister may or must grant purchase applications,
(b) the determination of purchase prices (including interest repayments) and methods of payments for successful purchase applications in those additional circumstances,
(c) authorising the Minister to offer specified kinds of holders of leases to which this Schedule applies the opportunity to purchase land under their leases, including--(i) providing for how offers are to be made and accepted, and(ii) applying provisions of this Schedule concerning purchase applications to accepted offers (whether with or without modification).