Land Administration Act 1997

Crest Western Australia

Western Australia

Land Administration Act 1997

CONTENTS

Part 1 — Preliminary

1. Short title 2

2. Commencement 2

3. Terms used in this Act 2

4. Crown bound 9

5. Act not to apply to registration of rights in respect of minerals, petroleum, geothermal energy or geothermal energy resource10

5A. Position on the Earth’s surface 10

6. Divisions of State 10

6B. Avoidance of doubt in relation to certain rights of way 11

Part 2 — General administration

Division 1 — General role of Minister

7. Minister for Lands to remain body corporate 12

8. International Program Trust Account 12

9. Delegation by Minister generally 14

10. General powers of Minister in relation to land 15

11. Minister may acquire land in public interest 16

12. Powers and duties of Minister restricted in relation to managed reserves and mall reserves17

13. Ministerial orders 17

14. Minister to consult local governments before exercising certain powers in relation to Crown land18

Division 2 — Covenants and conditions and their enforcement

15. Covenants in favour of Minister and others in respect of use and alienation of land 18

16. Registration of memorials to secure performance of conditions 22

Division 3 — General

17. Warnings of hazards etc. on certificates of title and certificates of Crown land title 24

18. Various transactions relating to Crown land to be approved by Minister 25

18A. Minister’s powers as to carbon rights and carbon covenants affecting Crown land 26

19. Dealings or caveats in respect of Crown land not effective until registered or recorded 27

19A. Encumbrances in respect of fee simple in Crown land 27

20. Caveats may be lodged in respect of interests in Crown land27

21. Minister may lodge caveats on behalf of State or of persons under disabilities 28

22. Continuation of interests and caveats after changes in status of Crown land 29

23. Subdivision etc. of Crown land subject to continuing interests etc. 29

24. Minerals and petroleum reserved to Crown 30

25. Mortgages 31

26. Constitution etc. of land districts and townsites 31

26A. Names of roads and areas in new subdivisions 31

27. Subdivision and development of Crown land 33

28. Dedication of roads when Crown land surveyed into locations or lots 34

29. Creation and registration of certificates of Crown land title, qualified certificates of Crown land title and subsidiary certificates of Crown land title34

30. Authorised land officers 35

31. Restrictions on certain public service officers acquiring Crown land 36

32. Approval of plans of survey and sketch plans 36

33. Evidentiary status of approved plans of survey and sketch plans 37

34. Power to enter Crown land for examination, inspection or survey 37

35. Forfeiture of interests in Crown land or certain freehold land37

36. Action which may be taken by Minister by agreement with holders of interests or freehold on breach of certain conditions or covenants41

Part 3 — Appeals to Governor

37. Lodging of appeals with Minister 42

38. Role of Minister on receipt of notices of appeal 42

39. Governor to determine appeals 42

40. Minister to notify appellants of outcomes of appeals 42

Part 4 — Reserves

41. Minister may reserve Crown land 43

42. Class A reserves 43

43. Special procedure in relation to certain changes to class A reserves and conservation reserves44

44. Easements in class A reserves 46

45. Relationship between this Part and the Conservation and Land Management Act 1984 and the Swan and Canning Rivers Management Act 200646

46. Placing of care, control and management of reserves 48

47. Minister may lease Crown land in unmanaged reserves for certain purposes 51

48. Minister may grant leases, licences or profits à prendre in respect of Crown land in unmanaged reserves for other purposes52

49. Management plans 52

50. Revocation of management orders 53

51. Cancellation etc. of reserves generally 54

51A. Certain land to be regarded as having been reserved under s. 41 54

52. Local government may request acquisition as Crown land of certain land no longer required55

Part 5 — Roads

Division 1 — Conventional roads

53. Status of Main Roads Act 1930 in respect of highways and main roads 58

54. Configuration and situation of roads 58

55. Property in roads etc. 58

56. Dedication of roads 59

57. Leases in relation to roads 61

58. Closure of roads 62

Division 2 — Mall reserves

59. Crown land reserved as mall reserves 63

60. Consultation with suppliers of public utility services concerning access to public utility services65

61. By‑laws to be made by management bodies of mall reserves65

62. Cancellation of mall reserves and revocation of management orders 66

Division 3 — Public access routes

63. Terms used in this Division 67

64. Declaration etc. of public access routes through Crown land67

65. Nature, signposting and routes of public access routes 68

66. Restrictions on liability of Minister and others in respect of public access routes 69

67. Temporary closure of public access routes 69

68. Provision of means of passage through or over fences 70

69. Right to use public access routes 70

70. Certain effects of public access routes 70

71. Offences 71

Part 6 — Sales, leases, licences, etc. of Crown land

Division 1 — General

72. Terms used in this Part 72

73. Advisory panel 72

Division 2 — Sale of Crown land

74. General powers of Minister in relation to sale of Crown land72

75. Minister may transfer Crown land in fee simple subject to conditions 73

76. Obligations of mortgagees of land transferred in fee simple subject to conditions concerning its use75

77. Application of purchase moneys arising from mortgagee sales 76

78. Minister may enter into joint ventures for development and sale of Crown land 76

Division 3 — Leasing of Crown land

79. Minister may lease Crown land for any purpose 77

80. Conditional purchase leases 78

81. Surrender of leases of Crown land 79

Division 4 — Provisions not restricted to either sale or leasing of Crown land

82. Revesting of land held by Crown in fee simple as Crown land 80

83. Minister may transfer Crown land in fee simple and grant leases of Crown land to or for benefit of Aboriginal persons80

84. Sale or lease of Crown land by public auction 81

85. Sale, or lease with option to purchase, of Crown land for subsequent subdivision 81

86. Minister may sell by private treaty, or lease, Crown land to Commonwealth etc. 82

87. Minister may convey in fee simple or lease Crown land for subsequent amalgamation with adjoining land82

88. Minister may grant options to purchase or lease Crown land85

89. Certain lessees of Crown land may purchase, or purchase options to purchase, Crown land85

90. Overlapping between leases or easements and mining tenements 86

91. Licences and profits à prendre in respect of Crown land 86

92. Improvements to vest in Crown 87

Part 7 — Pastoral leases

Division 1 — Introductory

93. Terms used in this Part 88

Division 2 — The Pastoral Lands Board

94. Pastoral Lands Board established 88

95. Functions of the Board 89

96. Minister may give directions 89

97. Constitution of the Board 90

98. Procedure of the Board 91

99. Particular duties of members 92

100. Protection from liability 93

Division 3 — Grant of a pastoral lease

101. Minister may grant pastoral lease over Crown lands 93

102. Public offers of pastoral leases 94

Division 4 — Conditions of a pastoral lease

103. Terms and conditions of individual leases 94

104. Reservation in favour of Aboriginal persons 95

105. Term of a pastoral lease 95

106. Pastoral land not to be used other than for pastoral purposes without a permit 95

107. Development and maintenance of improvements 96

108. Management of land under a pastoral lease 96

109. Clearing of pastoral land 97

110. Pastoral land not to be sown with non‑indigenous pastures without permit 98

111. Stocking of a pastoral lease 98

112. Effect of soil conservation notices on obligations of pastoral lessee 100

113. Annual returns 100

114. Compensation for improvements on the expiry of certain pastoral leases 101

Division 5 — Permits

115. Fees for permits 103

116. Provisions of a lease do not limit issue of permits 103

117. Permits not to be issued unless environmental conservation requirements satisfied 103

118. Permits to clear land 104

119. Permits to sow non‑indigenous pastures 104

120. Permits for agricultural uses of land under a lease 104

121. Permits for use of land under a lease for tourism 105

122. Permits for non‑pastoral use of enclosed or improved land105

122A. Permits to keep or sell prohibited stock 106

Division 6 — Rent for a pastoral lease

123. Assessment of rent 106

124. Rent may be varied if a permit is issued 107

125. Payment of rent 108

126. Objections and review 108

127. Rate of rent for amalgamated leases 108

128. Postponement or reduction of rent payments due to disaster109

Division 7 — Defaults, offences, forfeiture and abandoned leases

129. Issue of default notice 110

130. Offence of failure to comply with a default notice 111

131. Minister may issue forfeiture notice 111

132. Criminal liability not affected by forfeiture 111

133. Abandonment of a pastoral lease 112

Division 8 — Transfers of pastoral holdings or shares

134. Minister’s approval required for transfer, mortgage or charge 113

135. Restrictions on transfer of shares in companies with pastoral interests 115

136. Maximum area 116

Division 9 — Relations between the Pastoral Board and the Commissioner

137. Commissioner and Board to exchange information 117

138. Commissioner to notify Board of certain soil conservation notices 118

Division 10 — Miscellaneous and transitional

139. Investigation of compliance with conditions of lease 118

140. Request for renewal of a pastoral lease 118

141. Adjustment and rationalisation of boundaries 119

142. Amalgamation of leases 119

142A. Creation of pastoral business unit 120

143. Existing pastoral leases — transitional 122

Part 8 — Easements

144. Minister may grant easements 126

145. Cancellation of easements 127

146. Easements to subsist 127

147. Easements in gross in respect of Crown land 128

148. Easements over conditional tenure land 128

149. Easements in anticipation of acquisition of fee simple 128

150. Cancellation of easements no longer serving any purpose 128

Part 9 — Compulsory acquisition of interests in land

Division 1 — Preliminary

Subdivision 1 — Interpretation

151. Terms used in this Part and Part 10 130

Subdivision 2 — Provisions relating to native title

152. Objective 132

153. Giving notice to native title holders where no determination of native title 133

154. Giving notice to native title holders if Part 2, Division 3, Subdivision P of NTA applies 134

155. Effect of taking on native title rights and interests 135

156. Compensation for native title holders 135

157. Compensation claimants 135

158. Refund of compensation if purpose of taking is cancelled 135

Subdivision 3 — Delegation

159. Delegation of powers or duties to certain other Ministers 136

160. Subdelegation of delegated power or duty 137

Division 2 — Taking interests in land

Subdivision 1 — Land required for a public work

161. Interests in land may be taken for public work 139

162. Taking interests in underground land 140

163. Certain materials and interests in land not to be taken without consent of Minister or principal proprietor 141

164. Mines and minerals may be excluded when interests in land are taken 141

Subdivision 2 — Land required for the purpose of conferring interests

165. Interests in land may be taken to confer interests under written law 142

166. Taking to be effected as if for public work 143

167. Compensation may be payable by person receiving interest in land taken under this Subdivision143

Division 3 — Procedure for taking interests in land and designating for a public work

Subdivision 1 — Procedure for taking interests in land by agreement

168. Agreements may be made to purchase interests in land 144

169. Purchase price 144

Subdivision 2 — Procedure for taking interests in land without agreement

170. Notice of intention to take interest in land 145

171. Content of notice of intention 146

172. No transactions to affect land under notice without Minister’s approval 147

173. No improvements to be made to land under notice without Minister’s approval 149

174. Evidence of Minister’s approval may be required for registration of transaction affecting land under notice149

175. Objections to a proposal to take interests in land 150

176. Proprietor may require small parcel of land severed to be taken 151

177. Making a taking order 152

178. Content of a taking order 153

Subdivision 3 — Effect of taking order

179. Effect of registration of taking order 155

180. Taking order may be annulled or amended 156

181. Compensation on annulment or amendment of taking order157

Division 4 — Entry on to land

182. Land may be entered for a feasibility study 157

183. Land to be taken for railway may be entered and occupied158

184. Land included in notice of intention may be entered for inspection or assessment of compensation, or for surveys 158

185. Land may be occupied temporarily for the purpose of public works 159

186. Work may be commenced without a taking order in certain circumstances 160

Division 5 — Use and disposal of land designated for a public work

187. Interest in land not required for a public work may have designation changed or cancelled 161

188. Proceeds from transactions affecting designated interests in land 162

189. Option to purchase if interest less than fee simple not required for public work 162

190. Option to purchase if fee simple not required for public work163

191. Person who would be entitled to option to purchase may require determination of whether the interest is required165

192. Lands not wanted for immediate use may be leased 165

193. Easements over lands designated for public works 166

194. Management body may sell stone etc. 166

Division 6 — General provisions

195. Easements in gross may be made generally in favour of the State etc. 167

196. Creation of public access easements 167

197. Proceeding in case of refusal to give up land 168

198. Protection of adjacent lands before removal of fences 169

199. Offence of obstructing workmen or destroying fences, works etc. 169

200. Transitional provisions for taking in progress and for certain uncompleted procedures 169

201. Preservation of existing delegations 171

Part 10 — Compensation

Division 1 — Persons entitled to compensation

202. Owners of interests in land taken entitled to compensation172

203. Persons who suffer damage from entry on to land entitled to compensation 173

204. Management bodies may be entitled to compensation for structures and improvements 173

205. Compensation as to mines 174

206. Limitation on compensation if an act done under Part 9 could have been done under another Act 174

Division 2 — The claim

207. Time limit for making claim for compensation 174

208. By whom compensation may be claimed 175

209. Principal Registrar to be guardian etc. in certain cases 175

210. Procedure in unrepresented absentee claims 175

211. Making a claim 176

212. Requests for non‑monetary compensation 177

213. Service of claim and other documents 177

214. Acquiring authority may require further particulars 178

215. Time for acquiring authority to serve notice disputing title 178

216. Claimant may apply to Supreme Court to direct issue or give opinion on question of law 178

Division 3 — Dealing with the claim

217. If title not disputed claim to be examined within 90 days and offer made 179

218. Claim and offer may be amended 180

219. If offer not rejected by claimant, equivalent to acceptance180

220. Method of determining compensation when offer rejected 181

221. If offer not made within 120 days of service of claim claimant may commence proceedings181

222. Claimant failing to proceed after serving notice of rejection of offer on acquiring authority 182

223. Commencing an action for compensation in an ordinary court183

224. Commencing an action in the State Administrative Tribunal184

225. Consent of assessor to act 186

Division 4 — The State Administrative Tribunal

226. State Administrative Tribunal 186

227. Assessors 187

229. State Administrative Tribunal may hear other claims by consent 187

230. Assessors may be objected to 188

231. Case of assessor member dying or unable to act 188

Division 5 — Assessing compensation

241. How compensation to be assessed for interest in land taken189

242. Apportionment of rates and taxes 193

243. Anything done by claimant to make land less suitable for the execution of work to be taken into account194

244. Gross sum or separate sums may be awarded and conditions attached 194

Division 6 — Payment of compensation

248. Payments pending settlement of a claim 195

249. When title doubtful, compensation or purchase‑money to be paid into the Supreme Court 195

250. Investment of compensation money by Principal Registrar196

251. Compensation for mortgaged lands 196

252. Land being sold on payment by instalments 197

253. Case of lands subject to rent‑charge 197

254. Reducing rent for lands when part is taken 198

255. Minister may agree to grant easements in lieu of compensation or purchase‑money 198

256. Court may award easements in lieu of compensation 198

257. Minister may grant surplus interests in land in lieu of compensation 199

258. Out of what funds compensation to be paid 199

Part 11 — General

259. General protection from liability for wrongdoing 200

260. Minister to be satisfied of purpose of improvements to be valued 200

261. Interests in Crown land of insolvents available for benefit of creditors 200

262. If death or mental incapacity occurs before completion of improvements 202

263. Fee simple may be transferred to executor or administrator of estate of deceased holder of interest in Crown land202

264. Liability of Crown and management bodies in relation to certain land 203

265. Prescription Act 1832 not applicable to Crown land 204

266. Land in reserves of discontinued or deviated railways to become Crown land 204

267. Offences on Crown land 204

268. Interference with survey marks and surveys 207

269. Contravention, etc. of conditions or covenants imposed in respect of Crown land penalised 207

270. Removal of unauthorised structures from Crown land 208

271. Applications by owners or occupiers of unauthorised structures for extension of time 210

272. Appeals by owners or occupiers of alleged unauthorised structures 211

273. Delegation of powers and duties in relation to unauthorised structures 211

274. Service of documents 212

275. Regulations generally 214

276. Regulations concerning fees 215

277. Regulations concerning advisory panel 216

278. Approval of forms 216

279. Review of Act 217

Part 12 — Repeals, transitional, savings and validation related to Land Act 1933

280. Interpretation Act 1984 not affected 218

281. Land Act 1933 repealed, and transitional, savings and validation 218

282. General saving 218

Part 13 — Transitional related to pre‑Land Act 1933 Crown grants, Crown reserves, and Crown leases

283. Term used in this Part 219

284. Pre‑1933 legislation transitional 219

Schedule 1 — Divisions of State

Schedule 2 — Transitional, savings and validation provisions related to Land Act 1933

1. Schedule 2 supplementary to Interpretation Act 1984, and terms used in this Schedule 222

2. Property etc. of Minister for Lands under repealed Act 222

3. Incomplete disposal of Crown land under repealed Act 222

4. Incomplete acquisition of land under repealed Act 222

5. Incomplete grants or leases to Aboriginal persons 222

6. Incomplete action in respect of districts or townsites 223

7. Resumption of land 223

8. Incomplete issue of Crown grants 223

9. Instruments awaiting signature 224

10. Reservations to continue to have effect 224

11. Applications and related matters 224

12. Forfeiture 224

13. Appeals to Governor 225

14. Reserves 225

15. Leases of reserves 226

16. Vesting etc. orders 226

17. Grants of land in fee simple subject to conditions 228

18. Management plans 229

19. Town and suburban lands being sold by auction 229

20. Conditions relating to town and suburban lands 229

21. Licences to occupy 230

22. Conditional purchase of town and suburban lands 230

23. Incomplete grants of land for purposes of Housing Act 1980 230

24. Power of Minister to dispense with requirements under Part IV of repealed Act in respect of certain sales231

25. Power to sell town and suburban land by advertisement 231

26. Conditional purchase of agricultural and grazing land 231

27. Special settlement lands 232

28. Existing conditions continue 232

29. Disposal of farm reconstruction areas to banks 232

30. Disposal of war service land no longer required 233

31. Leases under sections 116, 117 and 117A of repealed Act233

32. Alienation of closed roads 234

33. Deferment of rent payable by discharged soldiers 234

34. Easements 235

35. Priority of application 236

36. Rents payable in respect of leases continued by this Schedule 236

37. Leases of lessees who have served in H. M. Forces 236

38. Leases continued by this Schedule not to be renewed 237

39. Compliance with statutory requirements for Crown grants237

40. Ministerial approvals under repealed Act 237

41. Incomplete transfers of leases and licences under repealed Act 237

42. Mortgages of leases and licences under repealed Act 237

43. Incomplete procedures under sections 149A and 149B of repealed Act 238

44. Validation of Crown land records, and conversion to qualified certificates of Crown land title for transitional period238

45. Procedure for registration of interests, status orders and caveats granted, entered into, made or lodged under repealed Act or any other written law239

46. Dealings or caveats in respect of Crown land to be registered or recorded within transitional period241

47. Purported assignments of certain leases validated and registrable as transfers of leases 241

48. Licences caveatable under TLA 241

49. Caveats 241

50. Incomplete executions against land 242

51. Power of Minister to register transmission if no administration of deceased estate 242

52. If death or lunacy occurs before completion of fencing and improvements 242

53. Removal of unauthorised structures from public lands 242

54. Delegations in respect of unauthorised structures 242

55. Auctioneers may sell without licences 243

56. Validation of previous restriction of public access 243

Schedule 3 — Crown grants, Crown reserves, and Crown leases made or created before the Land Act 1933

1. Terms used in this Schedule 244

2. Crown grants made before the Land Act 1933 244

3. Crown reserves created before the Land Act 1933 245

4. Leases granted under the Land Act 1898 246

5. Other leases granted under pre‑1933 legislation 247

Notes

Compilation table 248

Provisions that have not come into operation 251

Defined Terms

Western Australia

Land Administration Act 1997

An Act to consolidate and reform the law about Crown land and the compulsory acquisition of land generally, to repeal the Land Act 1933 and to provide for related matters.

Part 1 — Preliminary

1. Short title

This Act may be cited as the Land Administration Act 1997 1.

2. Commencement

(1) Subject to subsection (2), this Act comes into operation on such day as is fixed by proclamation 1.

(2) Subject to section 22 of the Interpretation Act 1984, this Act is not to come into operation until all the provisions of the Transfer of Land Amendment Act 1996 have come into operation.

3. Terms used in this Act

(1) In this Act, unless the contrary intention appears —

adjoining, in relation to parcels of Crown land, includes only separated by —

(a) roads;

(b) railways;

(d) reserves or unallocated Crown land;

alienated land means land held in freehold;

appointed day means day fixed under section 2(1);

approved form means form for the time being approved under section 278;

authorised land officer means a person appointed under section 30 to be an authorised land officer;

carbon covenant and carbon right have the same respective meanings as they have in the Carbon Rights Act 2003;

caveat means caveat lodged under section 20 or 21, as the case requires;

certificate of Crown land title means certificate of Crown land title (being a certificate of the radical title of the Crown) referred to in section 29 and showing the interests, dealings or caveats granted, entered in to or lodged in respect of a parcel of Crown land, and, except in that section, includes any subsidiary certificate of Crown land title —

(a) created in relation to part of that parcel;

(b) referred to in that certificate of Crown land title; and

certificate of title has the same meaning as it has in the TLA;

class A reserve means reserve classified as a class A reserve under section 42;

Commissioner of Main Roads means Commissioner of Main Roads holding office under the Main Roads Act 1930;

condition includes limitation, restriction and, when used in the sense of a stipulation, term;

covenant means covenant referred to in section 15;

Crown land, subject to subsections (2), (3), (4) and (5), means all land, except for alienated land;

Crown lease has the same meaning as it has in the TLA;

dealing, when used as a noun, means —

(a) document that when registered creates, effects, cancels or alters interests in, or status orders in respect of, Crown land; or

(b) order;

Department means department principally assisting the Minister in the administration of this Act;

external Territory has the same meaning as it has in section 17 of the Acts Interpretation Act 1901 of the Commonwealth;

high water mark, in relation to tidal waters, means ordinary high water mark at spring tides;

instrument, except in relation to a delegation to, or the appointment of, a person, has the same meaning as it has in the TLA;

interest, in relation to Crown land, means, except in Parts 9 and 10, charge, Crown lease, easement, lease, mortgage, profit à prendre or other interest, including such interests as are lawfully granted or entered into by a management body, and their counterparts under the repealed Act, but does not include —

(a) care, control and management of a reserve, mall reserve or road;

(b) caveat;

(d) mining, petroleum or geothermal energy right;

inundated land means alienated land that, through the excavation of that land or other land, has become inundated by tidal waters;

land means —

(a) all land within the limits of the State;

(b) all marine and other waters within the limits of the State;

(c) all coastal waters of the State as defined by section 3(1) of the Coastal Waters (State Powers) Act 1980 of the Commonwealth; and

(d) the sea‑bed and subsoil beneath, and all islands and structures within, the waters referred to in paragraphs (b) and (c);

land administration expertise includes expertise and services in —

(a) the compilation, storage and use of land information;

(b) land surveying;

(d) land registration;

land district means land district constituted under section 26;

lease means lease of Crown land granted under this Act or under an order made under section 46(3) or 59(5)(b);

licence means licence granted under section 91(1);

location or lot means parcel of Crown land which is shown on a plan of survey or sketch plan approved by an authorised land officer;

mall reserve means land reserved under section 59(1) as read with section 59(4)(a)(i);

managed reserve means reserve the care, control and management of which are placed under section 46 or 59;

management body means person or persons with whom or which the care, control and management of a reserve or mall reserve are placed under section 46(1) or 59(4);

management order means order by which the care, control and management of a reserve are placed under section 46(1) or 59(4);

mining, petroleum or geothermal energy right means —

(a) mining tenement within the meaning of the Mining Act 1978; or

(b) drilling reservation, lease, licence, permit, pipeline licence, special prospecting authority, access authority or other right under the Petroleum and Geothermal Energy Resources Act 1967, the Petroleum Pipelines Act 1969 or the Petroleum (Submerged Lands) Act 1982;

Minister means Minister in his or her capacity as the body corporate continued under section 7(1);

order means order made by the Minister under this Act in an approved form;

pastoral lease means lease which is a pastoral lease of Crown land granted under section 101 or continued under section 143;

pastoral lessee means holder of a pastoral lease;

Planning Commission means Western Australian Planning Commission established under the Planning and Development Act 2005;

positive covenant, in relation to land, means positive covenant complying with any relevant scheme and registrable under section 15, or covenant which complies with any relevant scheme and which imposes obligations —

(a) concerning the matters referred to in section 15(4)(a) to (e);

(b) requiring the provision of public utility services or other services on or to the land or other land in its vicinity; or

or imposes any condition with respect to the performance of or failure to perform any such obligation;

private road means alley, court, lane, road, street, thoroughfare or yard on alienated land, or a right of way created under section 167A(1) of the TLA, which —

(a) is not dedicated, whether under a written law or at common law, to use as such by the public; and

(b) is shown on a plan or diagram deposited or in an instrument lodged with the Registrar,

and which —

(d) once formed or was part of a common access to land, or premises, separately occupied, but no longer does so;

(e) is accessible from an alley, court, lane, road, street, thoroughfare, yard or public place that is dedicated, whether under a written law or at common law, to use as such by the public; or

(f) once was, but is no longer, accessible from an alley, court, lane, road, street, thoroughfare, yard or public place that was dedicated, whether under a written law or at common law, to use as such by the public;

profit à prendre means profit à prendre granted under section 91(1);

public access route means public access route declared under section 64(1);

public service officer has the same meaning as it has in the Public Sector Management Act 1994;

public utility services means drainage, electricity, gas, sewerage, telephone or water services or such other services as are prescribed for the purposes of this definition;

qualified certificate of Crown land title means qualified certificate of Crown land title referred to in section 29 or clause 44(2) of Schedule 2 and showing the interests, dealings or caveats granted, entered into or lodged in respect of a parcel of Crown land, and, except in that section, includes any subsidiary certificate of Crown land title —

(a) created in relation to part of that parcel;

(b) referred to in that qualified certificate of Crown land title; and

recorded means recorded under Part IIIB of the TLA;

registered means registered under Part IIIB of the TLA;

Registrar or Registrar of Titles means Registrar of Titles referred to in section 7 of the TLA;

remuneration has the same meaning as it has in the Salaries and Allowances Act 1975;

repealed Act means Land Act 1933;

reservation means order retaining in the radical title of the Crown any right or interest in land as a condition of —

(a) a conveyance or transfer of Crown land in fee simple; or

(b) the grant or entering into of an interest in Crown land;

reserve means Crown land for the time being reserved under section 41;

road means, subject to section 54, land dedicated at common law or reserved, declared or otherwise dedicated under an Act as an alley, bridge, court, lane, road, street, thoroughfare or yard for the passage of pedestrians or vehicles or both;

scheme has the same meaning as it has in the Environmental Protection Act 1986;

State instrumentality includes organizations within the meaning of the Public Sector Management Act 1994 and any other bodies corporate established under written laws;

status order means order other than an order that creates an interest;

stock means birds, crustaceans, fish, mammals or reptiles or other animals of any kind whatsoever which are farmed, kept or managed;

subsidiary certificate of Crown land title means subsidiary certificate of Crown land title referred to in section 29;

TLA means Transfer of Land Act 1893;

townsite means townsite referred to in section 26(1);

transitional period means period of 5 years beginning on the appointed day;

unallocated Crown land means Crown land —

(a) in which no interest is known to exist, but in which native title within the meaning of the Native Title Act 1993 of the Commonwealth may or may not exist; and

(b) which is not reserved, declared or otherwise dedicated under this Act or any other written law;

unmanaged reserve means reserve the care, control and management of which are not placed with a management body.

(2) All land below high water mark, including the beds and banks of tidal waters, is Crown land unless that land is inundated land or other alienated land.

(3) When tidal waters form the boundary of a parcel of land or a person holds the freehold of parcels of land adjoining tidal waters —

(a) the land below high water mark (except for land which was alienated land immediately before the appointed day) is Crown land; and

(b) if the line of the high water mark shifts over time by gradual and imperceptible degrees, the boundaries of the parcel or parcels of land shift with the high water mark.

(4) No act to occupy, use, build or carry out works or remove material, with or without lawful authority, is capable of causing land below high water mark to cease to be Crown land.

(5) Land that becomes raised above high water mark, whether gradually or imperceptibly or otherwise, because of the building or carrying out of works, is Crown land.

(6) A reference in this Act to the sale of Crown land is, unless the contrary intention appears, to be construed as a reference to the transfer of the Crown land in fee simple for consideration.

(7) A reference in this Act to the freehold in any land is a reference to the fee simple, whether absolute, conditional or otherwise, of that land.

[Section 3 amended by No. 59 of 2000 s. 4; No. 56 of 2003 s. 4; No. 38 of 2005 s. 6; No. 28 of 2006 s. 375; No. 60 of 2006 s. 139; No. 35 of 2007 s. 98(2) and (3).]

4. Crown bound

This Act binds the Crown.

5. Act not to apply to registration of rights in respect of minerals, petroleum, geothermal energy or geothermal energy resource

(1) This Act does not —

(a) apply to the registration of rights over Crown land in respect of minerals, petroleum, geothermal energy or geothermal energy resources; or

(b) prevent or otherwise affect the system of registration under other Acts of mining, petroleum or geothermal energy rights in respect of Crown land.

(2) In subsection (1) —

geothermal energy and geothermal energy resources have the same meanings as they have in the Petroleum and Geothermal Energy Resources Act 1967.

[Section 5 amended by No. 35 of 2007 s. 98(4).]

5A. Position on the Earth’s surface

(1) If for the purposes of this Act it is necessary to determine the position on the surface of the Earth of a point, line or area, that position is to be determined by reference to the prescribed Australian datum.

(2) Regulations that prescribe a datum for the purposes referred to in subsection (1), or amend that datum or prescribe another datum to replace that datum, may make any transitional or savings provisions that are necessary or convenient to be made.

(3) Regulations referred to in subsection (2) may modify or otherwise affect the operation of this Act.

[Section 5A inserted by No. 54 of 2000 s. 4.]

6. Divisions of State

For the purposes of this Act, the State is divided into the Divisions described in Schedule 1.

[6A. Has not come into operation 2, 3, 4.]

6B. Avoidance of doubt in relation to certain rights of way

To avoid doubt, it is declared that if —

(a) land was or is taken or resumed and vested in a local government for the purpose of a right of way or a right of way and recreation, and not a road; and

(b) the land comprising the right of way or right of way and recreation has not been or is not dedicated as a road under a written law,

the land —

(d) the common law relating to the creation of a public right of way by way of dedication and acceptance has never applied and does not apply to the land so as to dedicate the land as a public right of way.

[Section 6B inserted by No. 59 of 2000 s. 5.]

Part 2 — General administration

Division 1 — General role of Minister

7. Minister for Lands to remain body corporate

(1) The body corporate established under the repealed Act under the name of the Minister for Lands is continued as a body corporate under this Act under that name and consists of the Minister to whom the administration of this Act is from time to time committed by the Governor.

(2) The Minister has perpetual succession and a common seal.

(3) Proceedings may be taken by or against the Minister in his or her corporate name.

(4) The Minister is an agent of the Crown in right of the State and enjoys the status, immunities and privileges of the Crown.

8. International Program Trust Account

(1) In this section —

the Account means the International Program Trust Account established under subsection (3);

the Program means the International Program established to initiate and advance the provision and sale to the Commonwealth or an external Territory, or to any instrumentality of either, or to any country outside Australia, of land administration expertise.

(2) The Minister is to carry out the Program and may for that purpose —

(a) invite persons in the private sector within Australia or elsewhere to participate in the establishment, development and completion of international projects for the provision and sale to the Commonwealth or an external Territory, or to an instrumentality of either, or to any country outside Australia, of land administration expertise, and to negotiate and conclude agreements, including joint venture agreements, with those persons for the purpose of that participation; and

(b) raise such fees and charges in respect of that provision and sale, and under those agreements, as the Minister considers appropriate.

(3) The Minister may, with the prior approval of the Treasurer, establish under section 16 of the Financial Management Act 2006 an agency special purpose account called the International Program Trust Account for the purposes of the Program.

(4) There are to be placed to the credit of the Account —

(a) moneys generated by the carrying out of the Program, including fees and charges raised under subsection (2)(b);

(b) moneys appropriated by Parliament; and

(5) The funds standing to the credit of the Account are to be applied in payment of —

(a) expenditure incurred by the Minister in the carrying out of the Program; and

(b) any other expenditure lawfully incurred by the Minister in respect of the Program.

(6) The Account is to be operated solely for the purposes of the Program and is to be administered by the Minister.

(7) The provisions of the Financial Management Act 2006 and the Auditor General Act 2006 regulating the financial administration, audit and reporting of departments apply to and in relation to the Account.

(8) The administration of the Account is for the purposes of section 52 of the Financial Management Act 2006 to be regarded as a service under the control of the department of the Public Service principally assisting in the administration of the Program.

[Section 8 amended by No. 28 of 2006 s. 376; No. 77 of 2006 s. 17.]

9. Delegation by Minister generally

(1) Subject to subsections (2) and (3) and to Part 9 and section 273, the Minister may, either generally or as otherwise provided by the instrument of delegation, by writing signed by him or her delegate to —

(a) a public service officer of the Department, being a public service officer named;

(b) a person for the time being holding an office in the Department, being an office specified; or

in the instrument of delegation, any of his or her powers (other than this power of delegation) or duties under this Act.

(2) The Minister may, in accordance with the regulations, delegate under subsection (1) a power conferred or duty imposed by this Act to convey or transfer the fee simple in Crown land.

(3) When the Minister delegates a power or duty under subsection (1), that delegation is to be made by instrument published in the Gazette.

(4) A power or duty delegated under subsection (1) must, if exercised or performed by the delegate, be exercised or performed in accordance with the instrument of delegation.

(5) Nothing in this section prevents or limits the application of sections 58 and 59 of the Interpretation Act 1984 to a delegation made under subsection (1).

10. General powers of Minister in relation to land

(1) The Minister may, in the name and on behalf of the State —

(a) exercise powers and perform duties in relation to land in accordance with this Act; and

(b) provide land administration expertise to the private and public sectors within Australia and elsewhere, and raise such fees and charges in respect of that provision as the Minister considers appropriate.

(2) The Minister may, when exercising powers or performing duties in relation to land under subsection (1)(a), require the land to be used for such purposes and subject to such conditions, covenants, encumbrances or reservations as are specified in the relevant order or other instrument.

(3) The Minister may exercise powers or perform duties in relation to land under subsection (1)(a) despite the existence of interests in, or caveats in respect of, the land if the Minister does so —

(a) without adversely affecting any such interest or caveat; or

(b) with the consent of the holder of any such interest or of the relevant caveator,

and those interests or caveats continue to apply to the land despite any such exercise or performance.

(4) When a consent referred to in subsection (3)(b) is given, the Minister may in accordance with that consent by exercising a power conferred on him or her by another provision of this Act extinguish the interest or caveat in respect of which that consent was given.

(5) Subject to this Act and to section 60(2)(b)(i) of the Contaminated Sites Act 2003, any proceeds received by the Minister from exercising powers or performing duties in relation to land, or providing land administration expertise and services, under subsection (1) are —

(a) for the purposes of the Financial Management Act 2006, to be taken to be moneys lawfully received by the Department; and

(b) subject to section 23 of that Act, to be credited to the Consolidated Account.

[Section 10 amended by No. 60 of 2003 s. 100; No. 74 of 2003 s. 72(2); No. 77 of 2006 s. 4 and 17.]

11. Minister may acquire land in public interest

(1) Subject to subsection (2), the Minister may, in the name and on behalf of the State, acquire an estate, interest or other right in or to land in the public interest from any person —

(a) by purchase;

(b) by exchange, and may make or receive any payment that is necessary because of any difference in value between the pieces of land exchanged;

(d) by taking it in the manner provided by Part 9;

(e) by forfeiture to the State under section 35; or

(f) by acquiring it in any other manner provided for by this Act.

(2) The Minister may, in the name and on behalf of the State, acquire an estate, interest or other right in or to land in the public interest from the Commonwealth, another State, a Territory or another country —

(a) by purchase;

(b) by exchange, and may make or receive any payment that is necessary because of any difference in value between the pieces of land exchanged; or

(3) The Minister must, after consulting the Valuer‑General, determine the value of any estate, interest or other right in or to land —

(a) to be purchased under this section; or

(b) to be acquired by exchange under this section, and the value of the estate, interest or other right in or to land to be transferred in exchange for the estate, interest or other right to be so acquired.

12. Powers and duties of Minister restricted in relation to managed reserves and mall reserves

The Minister must not exercise a power (other than a power conferred by section 50(1) or (2)) or perform a duty under section 10(1) in respect of the care, control or management of Crown land in a managed reserve or mall reserve without the consent of the relevant management body.

13. Ministerial orders

(1) The Minister must, when he or she makes an order, lodge the order with the Registrar for registration.

(2) An order is not subsidiary legislation within the meaning of the Interpretation Act 1984.

(3) If a minor error or omission has occurred in respect of an order, the Minister may, if to do so will not prejudice any person affected by the order, by subsequent order amend the order.

(4) An order amended under subsection (3) is to be treated as having been made in its amended form.

(5) An order becomes effective on registration.

(6) An order revoked or replaced under section 165(4) ceases to have effect from the day the order revoking it or replacing it is registered.

(7) An order amended under section 165(4) is to be treated as having been made in its amended form from the day the order amending it is registered.

[Section 13 amended by No. 59 of 2000 s. 6.]

14. Minister to consult local governments before exercising certain powers in relation to Crown land

Before exercising in relation to Crown land any power conferred by this Act, the Minister must, unless it is impracticable to do so, consult the local government within the district of which the Crown land is situated concerning that exercise.

Division 2 — Covenants and conditions and their enforcement

15. Covenants in favour of Minister and others in respect of use and alienation of land

(1) This section applies to land which is —

(a) Crown land; or

(b) alienated land that is the subject of an agreement relating to the use of the alienated land and that is entered into between —

(i) the Minister; and

(ii) the person who is the holder of the freehold in the alienated land,

before the alienated land was transferred by the Minister in fee simple to that holder.

(2) In this section —

agreement land means alienated land referred to in subsection (1)(b);

registered, in relation to —

(a) Crown land, means registered under Part IIIB of the TLA; or

(b) agreement land, means registered under the TLA otherwise than under Part IIIB of the TLA,

and registrable has a corresponding meaning.

(3) Subject to subsection (5), a covenant described in subsection (4) in favour of the Minister as covenantee —

(a) may be registered —

(i) if that covenant relates to Crown land, by order against the relevant certificate of Crown land title or qualified certificate of Crown land title; or

(ii) if that covenant relates to agreement land, by instrument against the relevant certificate of title,

subject to that covenant;

(b) runs with that Crown land or agreement land, as the case requires; and

(c) is enforceable against the covenantor and his or her successors in title even if that covenant is not annexed to land in which the Minister has an estate or interest.

(4) A covenant registrable under subsection (3) may be a positive covenant or restrictive covenant and may, without limiting the generality of this subsection, include one or more of the following —

(a) provision in respect of the use of land subject to that covenant, the use of a building on or to be erected on that land or the payment of the purchase price of that land;

(b) the requirement that land —

(i) is to be built on in accordance with that covenant;

(ii) is not to be built on except in accordance with that covenant; or

(iii) is not to be built on;

(i) is not to be subdivided except in accordance with that covenant; or

(ii) is not to be subdivided;

(d) the requirement that parcels of that land designated in that covenant and registered under one or more titles are not to be sold or otherwise transferred separately;

(e) provision in respect of the conditions subject to which the fee simple of, or an interest in, Crown land is to be transferred, granted or entered into.

(5) The Minister must, before a positive covenant referred to in subsection (4) is registered in respect of —

(a) Crown land the subject of an interest, status order or caveat, obtain the consent of the holder of the interest, of the management body or other person affected by the status order or of the caveator; or

(b) agreement land, obtain the consent of the holder of the freehold in the agreement land,

to that registration.

(6) A covenant described in subsection (7) —

(a) may impose an obligation on the covenantor to be performed to the satisfaction of —

(i) the Minister, a State instrumentality or a local government; or

(ii) such other person as is prescribed,

as covenantee;

(b) may be registered —

(i) if that covenant relates to Crown land, by order against the relevant certificate of Crown land title or qualified certificate of Crown land title; or

(ii) if that covenant relates to agreement land, by instrument against the relevant certificate of title,

subject to that covenant;

(d) is enforceable against the covenantor and his or her successors in title even if that covenant is not annexed to land in which the covenantee has an estate or interest.

(7) A covenant registrable under subsection (6) may be a positive covenant or restrictive covenant and may include one or more of the following —

(a) any provision or requirement referred to in subsection (4)(a), (b), (c), (d) or (e);

(b) the requirement that land or a specified amenity in relation to it be protected, preserved, conserved, maintained, enhanced, restored or kept in its natural or existing state in accordance with, and to the extent provided in, that covenant.

(8) For the purposes of subsection (7) —

amenity includes natural, historical, heritage, cultural, scientific, architectural, environmental, wildlife or plant life value relating to the land that is subject to the relevant covenant.

(9) A covenant registered under this section —

(a) indemnifies the covenantee against any matter agreed to by the covenantor and covenantee and provides for the due performance of the obligations under that covenant by the holders of interests, or the holder of the freehold, in the relevant land; and

(b) constitutes a charge on the relevant land.

(10) Section 110 of the TLA does not apply to a charge referred to in subsection (9)(b).

(11) If an order or other instrument contains a covenant registrable under this section, that covenant, while registered, is binding on the covenantor and his or her successors in title.

(12) A person who enters into a covenant under this section is not liable for a breach of the covenant which occurs after that person ceases to hold —

(a) an interest in the relevant Crown land; or

(b) the freehold in the relevant agreement land,

as the case requires.

(13) A covenant referred to in subsection (9) may be —

(a) modified by agreement between the covenantor or his or her successor in title and the covenantee; or

(b) discharged by the covenantee.

(14) In relation to Crown land, the Minister may be the covenantor of a covenant registered under subsection (3) or (6).

(15) If a covenant is registered under subsection (3) or (6) against Crown land by an instrument against the relevant certificate of Crown land title or qualified certificate of Crown land title, the covenant is by operation of this subsection transferred to, and applies to, the fee simple when the Crown land is transferred in fee simple in all respects as if the fee simple had been referred to in the covenant.

[Section 15 amended by No. 59 of 2000 s. 7.]

16. Registration of memorials to secure performance of conditions

(1) If the Minister transfers Crown land in fee simple under section 75(1) subject to the condition that the due performance of other conditions by the holder of the freehold in the relevant land is to be secured by a charge on that land registered under this section, the Minister may lodge a memorial in an approved form with the Registrar.

(2) When the Registrar has registered a memorial and noted the Register accordingly, the due performance of conditions referred to in subsection (1) is a charge on the subject land for the benefit of the Minister.

(3) If a registered memorial referred to in subsection (2) —

(a) states that no dealings or other instruments are to be registered in respect of the subject land while that memorial remains registered under this section, that memorial has effect accordingly; or

(b) does not so state, that memorial is merely notice of its contents to those concerned with the subject land.

(4) If any default is made in respect of the performance referred to in subsection (2) while the relevant memorial remains registered, the Minister has the same powers of sale over the subject land as are given by the TLA to a mortgagee under a mortgage in respect of which default has been made in the payment of principal.

(5) If the Minister determines that a charge in respect of which a memorial referred to in subsection (2) is registered is no longer required, the Minister may request the Registrar to cancel that memorial.

(6) On receiving a request made under subsection (5), the Registrar must cancel the relevant memorial and by doing so remove the charge from the subject land.

(7) In this section —

the subject land means land referred to in subsection (1).

Division 3 — General

17. Warnings of hazards etc. on certificates of title and certificates of Crown land title

(1) When the Minister wishes the certificate of title of land the fee simple of which has been transferred under this Act to be endorsed with a statement warning of hazards or other factors affecting, or likely to affect, the use or enjoyment of that land, the Minister may, with the consent of the holder of that fee simple, lodge with the Registrar a memorial in an approved form containing that statement.

(2) When the Minister wishes the certificate of Crown land title of a parcel of Crown land an interest in which has been or is to be granted or entered into under this Act to be endorsed with a statement warning of hazards or other factors affecting, or likely to affect, the use or enjoyment of that parcel, the Minister may lodge with the Registrar a memorial in an approved form containing that statement.

(3) On the lodging of a memorial under subsection (1) or (2), the Registrar must —

(a) endorse on the relevant certificate of title or certificate of Crown land title; and

(b) note on the Register,

a memorandum of the memorial.

(4) The Minister may, at any time after the lodging of a memorial under subsection (1) or (2), request the Registrar to remove —

(a) the relevant endorsement from the certificate of title or certificate of Crown land title; and

(b) the relevant note from the Register,

and the Registrar must comply with that request.

18. Various transactions relating to Crown land to be approved by Minister

(1) A person must not without authorisation under subsection (7) assign, sell, transfer or otherwise deal with interests in Crown land or create or grant an interest in Crown land.

(2) A person must not without authorisation under subsection (7) —

(a) grant a lease or licence under this Act, or a licence under the Local Government Act 1995, in respect of Crown land in a managed reserve; or

(b) being the holder of such a lease or licence, grant a sublease or sublicence in respect of the whole or any part of that Crown land.

(3) A person must not without authorisation under subsection (7) mortgage a lease of Crown land.

(4) A lessee of Crown land must not without authorisation under subsection (7) sell, transfer or otherwise dispose of the lease in whole or in part.

(5) The Minister may, before giving approval under this section, in writing require —

(a) an applicant for that approval to furnish the Minister with such information concerning the transaction for which that approval is sought as the Minister specifies in that requirement; and

(b) information furnished in compliance with a requirement under paragraph (a) to be verified by statutory declaration.

(6) An act done in contravention of subsection (1), (2), (3) or (4) is void.

(7) A person or lessee may make a transaction under subsection (1), (2), (3) or (4) —

(a) with the prior approval in writing of the Minister; or

(b) if the transaction is made in circumstances, and in accordance with any condition, prescribed for the purposes of this paragraph.

(8) This section does not apply to a transaction relating to an interest in Crown land if —

(a) that land is set aside under, dedicated or vested for the purposes of an Act other than this Act, and the transaction is authorised under that Act;

(b) that interest may be created, granted, transferred or otherwise dealt with under an Act other than —

(i) this Act; or

(ii) a prescribed Act;

(c) an agreement, ratified or approved by another Act, has the effect that consent to the transaction was not required under section 143 of the repealed Act; or

(d) the transaction is a lease, sublease or licence and the approval of the Minister is not required under section 46(3b).

[Section 18 amended by No. 59 of 2000 s. 8(1)‑(5) 5.]

18A. Minister’s powers as to carbon rights and carbon covenants affecting Crown land

The Minister may —

(a) apply for the State to be registered as the proprietor of a carbon right in respect of Crown land;

(b) enter into a carbon covenant —

(i) that benefits a carbon right in respect of Crown land; or

(ii) that burdens Crown land;

(i) a carbon right in respect of Crown land; or

(ii) a carbon covenant referred to in paragraph (b)(i) or (ii).

[Section 18A inserted by No. 56 of 2003 s. 5.]

19. Dealings or caveats in respect of Crown land not effective until registered or recorded

Subject to section 68 of the TLA, a dealing or caveat in respect of Crown land created or lodged under this Act or the TLA does not become effective until that dealing is registered or that caveat is recorded, as the case requires.

19A. Encumbrances in respect of fee simple in Crown land

To avoid doubt, if the fee simple in Crown land is transferred under this Act subject to encumbrances, it is declared that sections 81Q, 81R, and 81RA (in respect of a transfer effected on or after the coming into operation of the Land Administration Act 1997) of the TLA apply to that land whether or not there is a specific provision in the TLA or this Act that provides for encumbrances to be transferred to, and applied to, the fee simple when transferred in all respects as if the fee simple had been referred to in the encumbrance.

[Section 19A inserted by No. 59 of 2000 s. 9.]

20. Caveats may be lodged in respect of interests in Crown land

(1) Subject to subsection (2), a person claiming an interest in land the subject of a certificate of Crown land title or a qualified certificate of Crown land title may lodge a caveat with the Registrar under Part V of the TLA.

(2) A caveat can only be lodged under subsection (1) in respect of —

(a) a registered interest;

(b) an interest approved by the Minister under section 18, but not registered; or

[Section 20 amended by No. 59 of 2000 s. 10.]

21. Minister may lodge caveats on behalf of State or of persons under disabilities

(1) Part V of the TLA does not apply to or in relation to this section.

(2) The Minister may lodge with the Registrar, and direct the Registrar to record against the relevant certificate of Crown land title, a caveat on behalf of —

(a) the State; or

(b) any person who is a minor, is suffering from a mental disorder or mental illness, or is an intellectually handicapped person, within the meaning of the Mental Health Act 1962 6, is absent from the State or is otherwise under a disability,

to forbid absolutely the registration of —

(c) any transfer in fee simple of, or any disposal of an interest in, or other dealing with, Crown land in which the State claims, or that person appears to have a claim to, an interest; or

(d) any grant of or entry into, or other dealing with, an interest in Crown land —

(i) in any case in which it appears that an error has been made by misdescription or otherwise in any order or other instrument; or

(ii) for the purpose of preventing any fraud or improper dealing.

(3) The Minister may —

(a) lodge with the Registrar a caveat on behalf of the State or a person to protect an interest in Crown land and direct the Registrar to endorse a memorandum of the caveat on the Register accordingly; or

(b) direct the Registrar to remove, wholly or in part, a caveat lodged under this subsection and amend or delete the relevant memorandum accordingly.

(4) The Registrar must comply with a direction given under subsection (2) or (3).

22. Continuation of interests and caveats after changes in status of Crown land

(1) When any Crown land is subject to an interest or caveat and ceases to be —

(a) reserved under Part 4;

(b) dedicated, reserved, set apart or vested under another written law; or

that interest or caveat continues.

(2) If a lease is continued under subsection (1), the Minister may, with the consent of the lessee, vary the terms of the lease and must, if he or she does so, lodge that variation with the Registrar.

23. Subdivision etc. of Crown land subject to continuing interests etc.

(1) If the Minister proposes to survey or resurvey the internal or external boundaries (or both) of, or to subdivide under section 27, Crown land the subject of any interests or caveats, the Minister may, with or without the consent of the holders of the interests, or of the relevant caveators, by order incorporating a plan of survey or sketch plan or revised plan of survey or sketch plan make such adjustments to those boundaries as —

(a) the Minister considers necessary; and

(b) accord with any proposed plan of subdivision approved under the Planning and Development Act 2005,

without any obligation to make or pay compensation.

(2) On the approval by an authorised land officer of a plan of survey or sketch plan or revised plan of survey or sketch plan referred to in subsection (1) and the registration of the order with reference to that plan of survey or sketch plan or revised plan of survey or sketch plan, the internal or external boundaries (or both) of the relevant Crown land are adjusted accordingly —

(a) despite the existence of any interests registered or caveats lodged in respect of that Crown land; and

(b) with or without the consent of the holders of those interests or of the relevant caveators.

(3) The Minister must ensure that an adjustment made under subsection (2) is made in conformity with sound planning and land management principles so as to cause as little detriment as possible to any interest or caveat affected by that adjustment.

(4) On the adjustment under subsection (2) of the internal or external boundaries (or both) of Crown land subject to interests or caveats, the interests or caveats apply to the relevant locations or lots within those boundaries and not to the Crown land referred to in the instruments which created those interests or caveats.

[Section 23 amended by No. 38 of 2005 s. 7.]

24. Minerals and petroleum reserved to Crown

Minerals within the meaning of the Mining Act 1978 and petroleum within the meaning of the Petroleum and Geothermal Energy Resources Act 1967 or the Petroleum (Submerged Lands) Act 1982 and geothermal energy resources and geothermal energy within the meaning of the Petroleum and Geothermal Energy Resources Act 1967 in Crown land are reserved to the Crown and remain so reserved after the Crown land is transferred in fee simple under this Act.

[Section 24 amended by No. 35 of 2007 s. 98(5).]

25. Mortgages

Subject to sections 76 and 77, a mortgage of an interest in Crown land has the same effect in relation to that interest as a mortgage has under Division 3 of Part IV of the TLA in relation to land referred to in that Division.

26. Constitution etc. of land districts and townsites

(1) In this section —

townsite —

(a) means townsite constituted under subsection (2); and

(b) except in subsection (2)(a), includes land referred to in clause 37 of Schedule 9.3 to the Local Government Act 1995.

(2) Subject to section 26A, the Minister may by order —

(a) constitute land districts and townsites;

(b) define and redefine the boundaries of, name, rename and cancel the names of, and, subject to this section, abolish land districts and townsites; and

(3) An order made under subsection (2) may include such matters enabled to be effected under an order made under another provision of this Act as the Minister thinks fit.

[Section 26 amended by No. 38 of 2005 s. 8.]

26A. Names of roads and areas in new subdivisions

(1) If a person delivers a diagram or plan of survey of a subdivision of land approved by the Planning Commission to a local government, and the proposed subdivision includes the provision of a road for use by the public, that person must also deliver to the local government the name proposed to be given to the road.

(2) The local government may require the person so subdividing the land —

(a) to propose a name for the proposed road or, if a name has already been proposed, to alter that name; and

(b) to propose a name for the area the subject of the proposed subdivision, or if a name has already been proposed, to alter that name.

(3) If the local government approves a name proposed under subsection (1) or (2), the local government is to forward the proposal to the Minister.

(4) The Minister may —

(a) approve the proposed name;

(b) direct the local government to reconsider the proposed name, having regard to such matters as the Minister may mention in the direction; or

(5) A person must not —

(a) assign a name to the area or road unless the name is first approved by the Minister;

(b) alter or change a name that has been so assigned, whether initially or from time to time, to the area or road unless the Minister first approves of the alteration or change of that name.

Penalty: $1 000 and a daily penalty of $100.

[Section 26A inserted by No. 38 of 2005 s. 9.]

27. Subdivision and development of Crown land

(1) The Minister may, subject to this section —

(a) subdivide, in accordance with the whole or any part of a plan of survey or sketch plan, and develop Crown land; and

(b) cause funds to be expended on that development and on marketing, planning, surveying and related activities for the purposes of any such subdivision and development.

(2) Without limiting the generality of subsection (1)(a), the Minister may for the purposes of that subsection —

(a) cause any parcel of Crown land to be surveyed into locations or lots; and

(b) decide on the shape and size of those locations or lots and on the width and direction of each road within that parcel.

(3) The Minister may, with the consent of each person having any interest or other right, or a power, in or over Crown land affected by any proposed subdivision shown in a plan of survey or sketch plan referred to in subsection (1) to the extinguishment of that interest, right or power, by order to which that plan of survey or sketch plan is annexed subdivide that land in accordance with the whole or any part of that plan of survey or sketch plan.

(4) When a consent referred to in subsection (3) is given, the Minister may by exercising a power conferred on him or her by another provision of this Act extinguish the interest, right or power in respect of which that consent was given.

[(5) deleted]

(6) For the purposes of this section, the boundaries of Crown land adjoining tidal waters or other waters are to be limited whenever practicable by straight lines as near to high water mark as an authorised land officer decides.

[Section 27 amended by No. 38 of 2005 s. 10.]

28. Dedication of roads when Crown land surveyed into locations or lots

(1) When the Minister causes a parcel of Crown land within the district of a local government to be surveyed into locations or lots under section 27 and the plan of that survey is approved by an authorised land officer, any land delineated and shown on that plan as a new road, or an extension or widening of a road, is, subject to subsection (2) —

(a) by force of this subsection dedicated as a road; and

(b) placed under the care, control and management of the local government.

(2) To be dedicated under subsection (1), land must at the time of dedication be —

(a) unallocated Crown land; and

(b) designated on the relevant plan of survey as having the purpose of a road.

29. Creation and registration of certificates of Crown land title, qualified certificates of Crown land title and subsidiary certificates of Crown land title

(1) Subject to this section, the Minister may apply to the Registrar for the creation and registration of a certificate of Crown land title or qualified certificate of Crown land title in an approved form in relation to a parcel of Crown land or part of such a parcel, as the case requires, shown on —

(a) the relevant plan of survey or sketch plan referred to in section 27(1) on the registration of that plan of survey or sketch plan; or

(b) a plan of survey or sketch plan used by the department of the Public Service through which the repealed Act was administered.

(2) The Minister may apply to the Registrar for the creation and registration of a subsidiary certificate of Crown land title in an approved form in relation to one or more interests in a reserve or lease (the additional interests) when the number of existing interests in the reserve or lease is such that it would be impracticable to record the additional interests on the certificate of Crown land title or qualified certificate of Crown land title created in respect of the reserve or lease.

(3) A subsidiary certificate of Crown land title referred to in subsection (2) must be cross‑referenced to the relevant certificate of Crown land title or qualified certificate of Crown land title.

(4) An application made under subsection (2) is to be accompanied by a sketch plan of internal interests, that is to say, a sketch plan showing each interest to which the subsidiary certificate of Crown land title is to relate and each area of Crown land the subject of such an interest.

(5) A certificate of Crown land title, a qualified certificate of Crown land title and a subsidiary certificate of Crown land title are to be created in the name of the State of Western Australia and to evidence interests, reserves or other dealings, or caveats, in respect of the parcel of Crown land or part of such a parcel, as the case requires, to which they relate.

(6) Subject to subsection (2), a certificate of Crown land title, qualified certificate of Crown land title or subsidiary certificate of Crown land title may be created and registered in respect of unsurveyed Crown land as a result of an application under subsection (1) or (2) if the certificate of Crown land title, qualified certificate of Crown land title or subsidiary certificate of Crown land title is endorsed with the words “Subject to survey”.

30. Authorised land officers

(1) The Minister may by notice published in the Gazette —

(a) appoint a person employed in or by a public authority who is a licensed surveyor within the meaning of the Licensed Surveyors Act 1909 to be an authorised land officer and to perform such functions as are conferred or imposed on an authorised land officer by this Act or any other Act; and

(b) exercise in relation to such an appointment any power conferred by section 52(1) of the Interpretation Act 1984.

(2) In this section —

public authority means —

(a) a department of the Public Service; or

(b) a body, whether corporate or unincorporate, established for a public purpose under a written law.

[Section 30 amended by No. 28 of 2006 s. 377.]

31. Restrictions on certain public service officers acquiring Crown land

(1) Subject to subsection (2), a public service officer of the Department must not, without the permission of the Minister, acquire an interest in Crown land.

(2) Subsection (1) does not apply to an acquisition of an interest in Crown land if that acquisition is made by the relevant public service officer —

(a) through public auction; or

(b) on behalf of the Minister.

32. Approval of plans of survey and sketch plans

A plan of survey or sketch plan produced for the purposes of this Act must be approved, in whole or in part, by an authorised land officer.

33. Evidentiary status of approved plans of survey and sketch plans

A plan of survey or sketch plan approved under section 32 is evidence in any court or before any person acting judicially of the boundaries shown on that plan of survey or sketch plan.

34. Power to enter Crown land for examination, inspection or survey

(1) Subject to subsection (2), the Minister, or a person authorised in writing by the Minister for the purpose, may enter any Crown land in order to make any examination, inspection or survey of that Crown land for the purposes of this Act.

(2) Nothing in subsection (1) empowers the Minister or a person referred to in that subsection to enter a dwelling house on Crown land without the prior agreement of the occupier of the dwelling house.

(3) This section does not apply to Crown land —

(a) which is dedicated, reserved, set apart or leased under another written law; and

(b) the care, control or management of which is placed with a State instrumentality.

35. Forfeiture of interests in Crown land or certain freehold land

(1) If in the opinion of the Minister there has been a breach of any condition or covenant subject to which —

(a) an interest in Crown land is held, the Minister must, if the Minister intends to cause the forfeiture of that interest under this section, give to the holder of that interest; or

(b) the freehold of any land transferred in fee simple under section 75(1) is held, the Minister must, if the Minister intends to cause the forfeiture of that freehold under this section, give to the holder of that freehold,

(the respondent) notice of the nature of that breach and of that intention.

(2) A respondent may, within the period of 30 days after the giving to him or her of notice under subsection (1) or such longer period as the Minister in special circumstances allows, lodge an appeal against the proposed forfeiture with the Minister under Part 3.

(3) If no appeal is lodged within the period referred to in subsection (2) or an appeal is lodged within that period but subsequently lapses, is withdrawn or is dismissed, the Minister may by order cause the relevant interest or freehold to be forfeited.

(4) On the registration of an order made under subsection (3) —

(a) the interest or freehold to which that order relates is forfeited to the State and the relevant land —

(i) becomes unallocated Crown land; or

(ii) if a sublease or caveat continues to have effect under an exemption granted under subsection (5)(a)(i), becomes or remains Crown land;

(b) any moneys paid to the Minister in respect of that interest or freehold cannot be recovered by the respondent; and

(c) any improvements made by the respondent on the land to which that interest or freehold relates become the property of the Crown.

(5) Despite the forfeiture of an interest or freehold under this section —

(a) the Minister may —

(i) by order exempt from that forfeiture any existing sublease or caveat relating to the land the subject of the interest or freehold, and a sublease or caveat so exempted continues to have effect; and

(ii) cause any improvements made by the former holder of the interest or freehold to be valued by agreement with the former holder or, failing any such agreement, by arbitration under the Commercial Arbitration Act 1985 to enable the value of improvements, less any moneys owing to the Minister by that holder, to be paid to that former holder if the Minister thinks fit;

and

(b) the respondent remains liable to pay any moneys payable to the Minister in respect of the interest or freehold before the date of that forfeiture.

(6) A sublease which —

(a) continues to have effect under an exemption granted under subsection (5)(a)(i); and

(b) is not already registered,

must be registered against the parcel of Crown land concerned as soon as practicable after the granting of that exemption.

(7) Despite the terms of the exemption under subsection (5)(a)(i) under which a sublease continues to have effect, the Minister may, with the consent of the sublessee, by order vary the terms of the sublease.

(8) The Minister may —

(a) charge the respondent interest at the same rate as the rate prescribed under section 8(1)(a) of the Civil Judgments Enforcement Act 2004 at the date of the forfeiture under subsection (4)(a) of the relevant interest or freehold, compounded in respect of each completed period of 6 months during which any of the moneys concerned remain unpaid, on any moneys payable to the Minister in respect of that interest or freehold before the date of that forfeiture but remaining unpaid; and

(b) recover from the respondent as a debt due to the Minister by action in a court of competent jurisdiction the amount of any unpaid interest charged under this subsection.

(9) The acceptance or demand by the Minister of an amount less than the total amount of any unpaid moneys referred to in subsection (8)(a) does not constitute a waiver by the Minister of his or her right —

(a) to receive payment of the balance of those unpaid moneys; or

(b) to enforce the observance of any condition or covenant subject to which the relevant interest or freehold was held before it was forfeited under this section.

(10) If the land the subject of an interest or freehold forfeited under this section is not required for any public purpose, that land may, unless any sublease or caveat continues to have effect under an exemption granted under subsection (5)(a)(i), be dealt with under this Act in the same way that any other unallocated Crown land may be dealt with.

(11) If there are any improvements on land referred to in subsection (10), the Minister may ascertain the value of those improvements and add that value to the price payable for an interest in, or the freehold of, that land.

(12) An order —

(a) made under subsection (3) in respect of an interest in Crown land; and

(b) registered,

is equivalent to a re‑entry and recovery of possession by or on behalf of the Crown within the meaning of any provision for re‑entry expressed in, or implied by, the relevant lease or other instrument.

[Section 36 amended by No. 8 of 2009 s. 83(2).]

36. Action which may be taken by Minister by agreement with holders of interests or freehold on breach of certain conditions or covenants

If in the opinion of the Minister there has been a breach of any condition or covenant subject to which —

(a) an interest in any Crown land the subject of a contract for sale; or

(b) the freehold in any land transferred in fee simple under section 75(1),

is held, the Minister may —

(i) the holder of that interest notice under section 35(1), by agreement with that holder terminate the contract for sale and arrange for that holder to remove any caveat registered against the relevant Crown land title; or

(ii) the holder of that freehold notice under section 35(1), by agreement with that holder arrange for the removal of any encumbrances to which that freehold is subject and the conveyance of that freehold to the State,

and

(d) if the Minister thinks fit in the case of a contract for sale referred to in paragraph (a), cause to be refunded to the purchaser the amount already paid towards the purchase price of the land, less an amount which represents 10% of that purchase price.

Part 3 — Appeals to Governor

37. Lodging of appeals with Minister

(1) A person to whom this subsection applies and who wishes to lodge an appeal with the Minister under this Part must do so by serving on the Minister notice in writing of the appeal setting out the grounds of the appeal.

(2) Subsection (1) applies to a person empowered to lodge an appeal under section 35(2), 133(2), 145(2), 190(10) or 272(1).

38. Role of Minister on receipt of notices of appeal

On receiving notice of an appeal, the Minister must cause a document setting out —

(a) the background relating to the appeal, including the grounds set out in the notice of appeal and the comments of the Minister on those grounds; and

(b) the recommended determination of the appeal,

to be delivered to the Governor.

39. Governor to determine appeals

(1) On receiving a document delivered under section 38, the Governor may dismiss or uphold the appeal and must notify the Minister in writing accordingly.

(2) In considering whether to dismiss or uphold an appeal under subsection (1), the Governor may receive advice from such persons as he or she chooses.

40. Minister to notify appellants of outcomes of appeals

The Minister must, on receiving notification under section 39(1), notify the appellant in writing of the outcome of the appeal and take such action as is necessary to give effect to that outcome.

Part 4 — Reserves

41. Minister may reserve Crown land

Subject to section 45(6), the Minister may by order reserve Crown land to the Crown for one or more purposes in the public interest.

42. Class A reserves

(1) The Minister may by order classify a reserve as a class A reserve.

(2) A class A reserve retains a purpose specified in the relevant order made under section 41 until that purpose is changed under this section.

(3) Subject to subsection (5), the Minister may by order —

(a) add Crown land to a class A reserve;

(b) amend a class A reserve for the purpose of correcting one or more unsurveyed boundaries of the class A reserve in such a manner that the area of the class A reserve, if reduced at all, is reduced by not more than 5%;

(c) excise 5% or one hectare, whichever is the less, of the area of a class A reserve for the purpose of public utility services;

(d) redescribe locations or lots, or adjust the areas of locations or lots, in a class A reserve if the external boundaries of the class A reserve remain unchanged; or

(e) amalgamate 2 or more class A reserves which have similar purposes and the same management body.

(4) Subject to subsection (5) and section 45, if the Minister proposes —

(a) to reduce the area of, or excise an area from, a class A reserve for a purpose other than a purpose referred to in subsection (3)(b) or (c);

(b) to excise an area from a class A reserve for the purpose of creating a road; or

the Minister must cause that proposal to be laid before each House of Parliament and section 43(1) then applies.

(5) The Minister must, not less than 30 days before acting under subsection (3) or (4) in relation to a class A reserve, advertise his or her intention so to act in a newspaper circulating throughout the State.

43. Special procedure in relation to certain changes to class A reserves and conservation reserves

(1) If, after a proposal is laid before each House of Parliament under section 42(4), 44(1) or 45(4) notice of a resolution disallowing the proposal —

(a) is not given in either House of Parliament within 14 sitting days of that House after the proposal was laid before it, the proposed reduction, excision, cancellation, change, grant or permission may be implemented by order after the last day of the later of those periods of 14 sitting days;

(b) is given in either or both of the Houses of Parliament within 14 sitting days of that House, or each of those Houses, after the proposal was laid before it, but that resolution is not lost in that House or each of those Houses within 30 sitting days after the proposal was laid before it, the proposed reduction, excision, cancellation, change, grant or permission lapses; or

(c) is given in either or both of the Houses of Parliament within 14 sitting days of that House, or each of those Houses, after the proposal was laid before it, but that resolution is lost in that House or each of those Houses within 30 sitting days after the proposal was laid before it, the proposed reduction, excision, cancellation, change, grant or permission may be implemented by order after that loss or after the later of those losses, as the case requires.

(2) It does not matter whether or not the period of 14 sitting days referred to in subsection (1) or some of them occur during —

(a) the same session of Parliament; or

(b) the same Parliament,

as that in which the relevant proposal is laid before the House of Parliament concerned.

(3) If the notice of a resolution referred to in subsection (1) is given to a House and that resolution is not lost but, before the period of 30 sitting days mentioned in subsection (1)(b) and (c) expires, Parliament is prorogued or that House is dissolved or expires —

(a) the relevant proposal does not lapse but, subject to paragraph (b)(iii), it cannot be implemented; and

(b) on the commencement of the next session of Parliament —

(i) the Minister may cause the proposal to be laid before that House again;

(ii) notice of a resolution disallowing the proposal may be given again in that House; and

(iii) subsection (1) applies again but as if the references in subsection (1)(b) and (c) to the period of 30 sitting days after the proposal was laid were references to the remaining sitting days after notice of a resolution disallowing the proposal is given under subparagraph (ii).

(4) In subsection (3)(b)(iii) —

remaining sitting days means the number of sitting days equal to the portion of the period of 30 sitting days mentioned in subsection (1)(b) and (c) that remained unexpired when Parliament was prorogued, or the relevant House was dissolved or expired, as referred to in subsection (3).

[Section 43 amended by No. 59 of 2000 s. 11.]

44. Easements in class A reserves

(1) Subject to subsection (2), if the Minister proposes —

(a) to grant an easement under section 144; or

(b) to permit the creation of an easement for the purposes of section 148,

in, on, over, through or under Crown land which is classified under section 42 as a class A reserve, the Minister must cause that proposal to be laid before each House of Parliament and section 43(1) then applies.

(2) The Minister must, not less than 30 days before acting under subsection (1) in relation to a class A reserve, advertise his or her intention so to act in a newspaper circulating throughout the State.

45. Relationship between this Part and the Conservation and Land Management Act 1984 and the Swan and Canning Rivers Management Act 2006

(1) In this section —

class A nature reserve means nature reserve which is a class A reserve;

conservation park, national park and nature reserve have the same respective meanings as they have in the Conservation and Land Management Act 1984.

(2) If land is reserved under section 41 for the purpose of a conservation park, national park or class A nature reserve, the Minister may, with the consent of the Minister to whom the administration of the Conservation and Land Management Act 1984 is for the time being committed by the Governor, by order —

(a) add Crown land to such a reserve;

(b) amend such a reserve for the purpose of correcting one or more unsurveyed boundaries of that reserve in such a manner that the area of that reserve, if reduced at all, is reduced by not more than 5%;

(c) excise 5% or one hectare, whichever is the less, of the area of such a reserve for the purpose of public utility services;

(d) redescribe locations or lots, or adjust the areas of locations or lots, in such a reserve if the external boundaries of that reserve remain unchanged; or

(e) amalgamate 2 or more such reserves which have similar purposes and the same management body.

(3) Subject to subsection (2), land that is reserved under section 41 for the purpose of a conservation park, national park or class A nature reserve remains so reserved for that purpose until, by an Act in which that land is specified, it is otherwise enacted.

(4) Subject to subsection (5), if the Minister proposes to excise an area from a reserve referred to in subsection (2) for the purpose of creating a road, the Minister must cause that proposal to be laid before each House of Parliament and section 43(1) then applies.

(5) The Minister must, not less than 30 days before acting under subsection (2) or (4) in relation to a reserve referred to in that subsection, advertise his or her intention so to act in a newspaper circulating throughout the State.

(6) In respect of land in the development control area or Riverpark as defined in the Swan and Canning Rivers Management Act 2006, the Minister must consult the Swan River Trust before —

(a) any such land is reserved under section 41; or

(b) the purpose of any such land that is a reserve is cancelled or changed, or the area of that land is altered otherwise than by addition thereto, under this Part.

[Section 45 amended by No. 52 of 2006 s. 6.]

46. Placing of care, control and management of reserves

(1) The Minister may by order place with any one person or jointly with any 2 or more persons the care, control and management of a reserve for the same purpose as that for which the relevant Crown land is reserved under section 41 and for purposes ancillary or beneficial to that purpose and may in that order subject that care, control and management to such conditions as the Minister specifies.

(2) The Minister may, with the consent of the management body of a reserve and of the holders of any interests within the reserve, by order vary any condition to which the care, control and management of the reserve is subject.

(3) The Minister may —

(a) by order confer on a management body power, subject to section 18, to grant a lease or sublease or licence over the whole or any part of the Crown land within the reserve in question for the purposes referred to in subsection (1); and

(b) approve a mortgage of any such lease.

(3a) The Minister may by order —

(a) without the consent of the management body of a reserve, vary —

(i) an order made under subsection (3)(a); or

(ii) an order made under section 33 of the repealed Act or section 42 or 43 of the Land Act 1898 7 that subsists as an order made under subsection (3)(a),

in relation to whether or not prior approval in writing of the Minister is required to a grant of a lease, sublease, or licence; or

(b) with the consent of the management body of a reserve, vary any other condition to which —

(i) an order made under subsection (3)(a); or

(ii) an order made under section 33 of the repealed Act or section 42 or 43 of the Land Act 1898 7 that subsists as an order made under subsection (3)(a),

is subject.

(3b) The Minister’s approval under section 18 is not required for the exercise of a power conferred under subsection (3)(a) unless —

(a) the person on whom the power is conferred is —

(i) a body corporate that is constituted for a public purpose under an enactment and is an agency of the Crown in right of the State; or

(ii) a person referred to in subsection (10)(b),

and the order provides that the Minister’s approval under section 18 is required; or

(b) the person on whom the power is conferred is a person other than a person referred to in paragraph (a).

(4) If an unmanaged reserve is the subject of —

(a) a lease granted under section 47; or

(b) a licence, or a lease or profit à prendre, granted under section 48,

or of any other interest in the unmanaged reserve, the Minister may under subsection (1) place the care, control and management of that reserve with a management body subject to that licence, lease or profit à prendre or other interest, the term of which continues unbroken by that placing.

(5) An order made under subsection (1), (2), (3) or (3a) does not create any interest in Crown land in the relevant reserve in favour of the management body of that reserve.

(6) If Crown land reserved under section 41 for the purpose of recreation is leased or subleased under a power conferred under subsection (3), the lessee or sublessee may, unless the terms of the management order or the lease or sublease otherwise provide, restrict public access to the area leased.

(7) A person with whom the care, control and management of a reserve is placed by order under subsection (1) has, by virtue of this subsection, the capacity, functions and powers to hold and deal with the reserve in a manner consistent with the order, any order conferring power on that person under subsection (3)(a) and this Act to the extent that the person does not already have that capacity or those functions and powers.

(8) Subsection (7) does not authorise a management body to perform a function or exercise a power if another enactment expressly prevents the person from performing that function or exercising that power, or expressly authorises another person to perform that function or exercise that power.

(9) Any instrument in relation to the care, control and management of a reserve entered into or given by a person holding an office referred to in subsection (10)(b)(i) or (iii) is taken to have been entered into or given by the person for the time being holding that office.

(10) In subsection (1), a reference to a person is a reference to —

(a) a person having perpetual succession;

(b) a person not having perpetual succession who is —

(i) a Minister to whom the Act specified in the relevant order is for the time being committed by the Governor;

(ii) the Marine Parks and Reserves Authority established under section 26A of the Conservation and Land Management Act 1984; or

(iii) a person holding a prescribed office.

(11) If an order made under section 33 of the repealed Act subsists under clause 16(1) of Schedule 2 as if it were a management order under section 46(1), the Minister may by order vary that order to place the care, control and management of the reserve the subject of the order with a person referred to in subsection (10).

(12) An order made under section 46(1) before the coming into operation of section 12 of the Land Administration Amendment Act 2000 1 may be varied by the Minister by order to place the care, control and management of the reserve the subject of the order with a person referred to in subsection (10).

[Section 46 amended by No. 59 of 2000 s. 12(1)‑(3) 8.]

47. Minister may lease Crown land in unmanaged reserves for certain purposes

(1) The Minister may grant a lease in respect of Crown land in an unmanaged reserve for a purpose which is in accordance with the purpose of the unmanaged reserve.

(2) A lease granted under subsection (1) may be mortgaged.

48. Minister may grant leases, licences or profits à prendre in respect of Crown land in unmanaged reserves for other purposes

(1) The Minister may grant leases, licences or profits à prendre in respect of Crown land in an unmanaged reserve for a purpose which is different from that or those of the unmanaged reserve but which is compatible with or ancillary to the current use or intended future use of that Crown land for the purpose or purposes of the unmanaged reserve.

(2) A lease granted under subsection (1) cannot be mortgaged.

49. Management plans

(1) A management body may submit to the Minister for his or her approval a plan for the development, management and use of the Crown land in its managed reserve for the purpose of that managed reserve.

(2) The Minister may request a management body or proposed management body to submit to the Minister in an approved form, within such period as is specified in that request, for his or her approval a plan for the development, management and use of the Crown land in the managed reserve of the management body for the purpose of that managed reserve.

(3) A management body must, before submitting a plan to the Minister under subsection (1) or in response to a request under subsection (2) —

(a) consider any conservation, environmental or heritage issues relevant to the development, management or use of the Crown land in its managed reserve for the purpose of that managed reserve; and

(b) incorporate in the plan a statement that it has considered those issues in drawing up the plan.

(4) If a management body submits a plan to the Minister under subsection (1) or in response to a request under subsection (2) and the Minister approves that plan and notifies the management body of that fact, the management body may develop, manage and use the Crown land concerned —

(a) in accordance with the plan; or

(b) if the Minister approves a variation of the plan, in accordance with the plan as varied.

50. Revocation of management orders

(1) When a management body —

(a) agrees that its management order should be revoked; or

(b) does not comply with its management order or with a management plan which applies to its managed reserve or does not submit a management plan in compliance with a request made under section 49(2),

the Minister may by order revoke that management order.

(2) If, in the absence of agreement or non‑compliance referred to in subsection (1), the Minister considers that it is in the public interest to revoke a management order, the Minister may by order revoke the management order.

(3) On the revocation of a management order or an order made under section 33 of the repealed Act or section 42 or 43 of the Land Act 1898 7 that subsists as if it were a management order under subsection (2), the former management body may claim compensation under Part 10 for any improvement made on the relevant reserve in accordance with the management order or an order made under section 33 of the repealed Act or section 42 or 43 of the Land Act 1898 7 that subsists as if it were a management order as if that revocation were a taking under Part 9.

(4) Despite the revocation of a management order —

(a) under subsection (1), if the Minister so specifies in the revocation order; or

(b) under subsection (2),

an interest (including an interest under Part 9 or under the Public Works Act 1902) which existed in, or any caveat which existed in respect of, the relevant land immediately before that revocation continues, irrespective of any subsequent creation of interests in or use of that land but subject to this Act, so to exist.

(5) Despite anything in an order revoking a management order, the Minister may, with the consent of the management lessee, vary the terms of a management lease continued in existence by subsection (4).

(6) In subsection (5) —

management lease means lease granted or a lease that subsists as if it were a lease granted under a power conferred under section 46(3);

management lessee means person to whom a management lease is granted.

(7) In subsections (1), (2), (4) and (5) —

management order includes an order made under section 46(3)(a) or an order made under section 33 of the repealed Act or section 42 or 43 of the Land Act 1898 7 that subsists as if it were a management order or an order made under section 46(3)(a).

[Section 50 amended by No. 59 of 2000 s. 13.]

51. Cancellation etc. of reserves generally

Subject to sections 42, 43 and 45, the Minister may by order cancel, change the purpose of or amend the boundaries of, or the locations or lots comprising, a reserve.

51A. Certain land to be regarded as having been reserved under s. 41

(1) The regulations may prescribe land that has been reserved to the Crown for one or more purposes in the public interest —

(a) by or under a written law other than section 41; and

(b) before 30 March 1998.

(2) Land prescribed by regulations referred to in subsection (1) is, by virtue of this subsection, to be regarded as having been reserved to the Crown under section 41 —

(a) for the purpose or purposes for which it was reserved by or under the other written law; and

(b) with the classification, if any, given by or under the other written law.

(3) A reference in section 42(2) to the relevant order made under section 41 is, in relation to land prescribed by regulations referred to in subsection (1), a reference to the written law, or to the instrument under the written law, by which the land was reserved, as is relevant to the case.

[Section 51A inserted by No. 76 of 2003 s. 4.]

52. Local government may request acquisition as Crown land of certain land no longer required

(1) Subject to this section, a local government may request the Minister to acquire as Crown land —

(a) any alienated land designated for a public purpose on a plan of survey or sketch plan lodged with the Registrar;

(b) any private road; or

within the district of the local government (in this section called the subject land).

(2) A request made under subsection (1) is to be accompanied by —

(a) a plan of survey or sketch plan —

(i) showing the subject land; and

(ii) approved by the Planning Commission;

and

(b) copies of all objections lodged with the local government during the period referred to in subsection (3)(b)(i) or (ii), as the case requires.

(3) Before making a request under subsection (1), a local government must —

(a) take all reasonable steps to give notice of that request to —

(i) the holder of the freehold in the subject land unless the local government holds that freehold;

(ii) the holders of the freehold in land adjoining the subject land unless the local government holds that freehold; and

(iii) all suppliers of public utility services to the subject land;

and

(b) in the case of —

(i) alienated land referred to in subsection (1)(a) or a private road referred to in subsection (1)(b), state in the notice a period of not less than 30 days from the day of that notice during which period persons may lodge objections with it against the making of that request; or

(ii) any land referred to in subsection (1)(c), advertise or take such steps as may be prescribed to notify interested persons of an intention to make the request and state in the notification a period of not less than 30 days from the day of that notification during which period persons may lodge objections with it against the making of that request.

(4) The Minister may, on receiving a request made under subsection (1), the accompanying plan of survey or sketch plan referred to in subsection (2)(a) and copies of all objections referred to in subsection (2)(b) —

(a) by order grant that request;

(b) direct the local government to reconsider that request, having regard to such matters as he or she thinks fit to mention in that direction; or

(5) On the registration of an order made under subsection (4)(a), the subject land —

(a) ceases to belong to the holder of its freehold;

(b) is freed from all encumbrances; and

(6) Subject to subsection (7), compensation is payable under Part 10 to any holder of the freehold in the subject land who suffers loss on the registration of an order referred to in subsection (5) as if that loss resulted from a taking under Part 9.

(7) A person with an interest in land that is a private road (including a person who has the benefit of an easement created under section 167A of the TLA) the subject of an order under subsection (4)(a) who suffers loss on the registration of the order is not entitled to compensation under Part 10.

(8) Sections 188, 189, 190 and 191 do not apply to a private road or an interest in land that is a private road if the land is the subject of an order under subsection (4)(a) and the land was taken or resumed or purportedly taken or resumed under a written law for the purpose of a right of way or a right of way and recreation.

[Section 52 amended by No. 59 of 2000 s. 14.]

Part 5 — Roads

Division 1 — Conventional roads

53. Status of Main Roads Act 1930 in respect of highways and main roads

To the extent that there is in the case of a road which is a highway or main road within the meaning of the Main Roads Act 1930 an inconsistency between this Act and that Act, that Act prevails.

54. Configuration and situation of roads

A road may have —

(a) a 2 dimensional configuration consisting of —

(i) length; and

(ii) width;

(b) a 3 dimensional configuration consisting of —

(i) length;

(ii) width; and

(iii) height or depth or both,

as specified in the relevant plan of survey or sketch plan lodged with the Registrar and may be situated in airspace or waters or on the surface of or below the ground (including the bed of waters) or in any combination of 2 or more of these situations.

55. Property in roads etc.

(1) Subject to this section and to section 57, the absolute property in land comprising a road is by this subsection —

(a) revested in the Crown; and

(b) in the case of land under the operation of the TLA or the Registration of Deeds Act 1856, removed from that operation and so revested.

(2) Subject to the Main Roads Act 1930 and the Public Works Act 1902, the local government within the district of which a road is situated has the care, control and management of the road.

(3) The operation of subsection (1) —

(a) suspends, until the relevant road is closed under section 58, any rights to mine for minerals within the meaning of the Mining Act 1978 excepted from the acquisition of the land reserved, declared or dedicated as that road; but

(b) does not affect the functions of a local government in respect of a road of which it has the care, control and management.

(4) If land comprising a private road is revested in the Crown under this section, a person with an interest in that land (including a person who has the benefit of an easement created under section 167A of the TLA) is not entitled to compensation because of that revesting.

[Section 55 amended by No. 59 of 2000 s. 15.]

56. Dedication of roads

(1) If in the district of a local government —

(a) land is reserved or acquired for use by the public, or is used by the public, as a road under the care, control and management of the local government;

(b) in the case of land comprising a private road constructed and maintained to the satisfaction of the local government —

(i) the holder of the freehold in that land applies to the local government, requesting it to do so; or

(ii) those holders of the freehold in rateable land abutting the private road, the aggregate of the rateable value of whose land is greater than one half of the rateable value of all the rateable land abutting the private road, apply to the local government, requesting it to do so;

and that land is described in a plan of survey, sketch plan or document, the local government may request the Minister to dedicate that land as a road.

(2) If a local government resolves to make a request under subsection (1), it must —

(a) in accordance with the regulations prepare and deliver the request to the Minister; and

(b) provide the Minister with sufficient information in a plan of survey, sketch plan or document to describe the dimensions of the proposed road.

(3) On receiving a request delivered to him or her under subsection (2), the Minister must consider the request and may then —

(a) subject to subsection (5), by order grant the request;

(b) direct the relevant local government to reconsider the request, having regard to such matters as he or she thinks fit to mention in that direction; or

(4) On the Minister granting a request under subsection (3), the relevant local government is liable to indemnify the Minister against any claim for compensation (not being a claim for compensation in respect of land referred to in subsection (6)) in an amount equal to the amount of all costs and expenses reasonably incurred by the Minister in considering and granting the request.

(5) To be dedicated under subsection (3)(a), land must immediately before the time of dedication be —

(a) unallocated Crown land or, in the case of a private road, alienated land; and

(b) designated in the relevant plan of survey, sketch plan or document as having the purpose of a road.

(6) If land referred to in subsection (1)(b) or (c) is dedicated under subsection (3)(a), a person with an interest in that land (including a person who has the benefit of an easement created under section 167A of the TLA) is not entitled to compensation because of that dedication.

[Section 56 amended by No. 59 of 2000 s. 16.]

57. Leases in relation to roads

(1) The Minister may —

(a) grant a lease in respect of land above or below a road; or

(b) with the consent of the relevant local government, the Commissioner of Main Roads, or the Minister responsible for the administration of the Public Works Act 1902, as the case requires, grant a lease in respect of land comprising a road, if —

(i) there are structures above the road; or

(ii) the purpose of that lease is consistent with the use of the road by the public.

(2) When a lease is granted under subsection (1)(b) in respect of land comprising a road and the road is closed under section 58 during the subsistence of the lease, the lease continues to subsist as an interest in Crown land until it terminates in accordance with law.

[Section 57 amended by No. 59 of 2000 s. 17.]

58. Closure of roads

(1) When a local government wishes a road in its district to be closed permanently, the local government may, subject to subsection (3), request the Minister to close the road.

(2) When a local government resolves to make a request under subsection (1), the local government must in accordance with the regulations prepare and deliver the request to the Minister.

(3) A local government must not resolve to make a request under subsection (1) until a period of 35 days has elapsed from the publication in a newspaper circulating in its district of notice of motion for that resolution, and the local government has considered any objections made to it within that period concerning the proposals set out in that notice.

(4) On receiving a request delivered to him or her under subsection (2), the Minister may, if he or she is satisfied that the relevant local government has complied with the requirements of subsections (2) and (3) —

(a) by order grant the request;

(b) direct the relevant local government to reconsider the request, having regard to such matters as he or she thinks fit to mention in that direction; or

(5) If the Minister grants a request under subsection (4) —

(a) the road concerned is closed on and from the day on which the relevant order is registered; and

(b) any rights suspended under section 55(3)(a) cease to be so suspended.

(6) When a road is closed under this section, the land comprising the former road —

(a) becomes unallocated Crown land; or

(b) if a lease continues to subsist in that land by virtue of section 57(2), remains Crown land.

[Section 58 amended by No. 59 of 2000 s. 18(1) 9.]

Division 2 — Mall reserves

59. Crown land reserved as mall reserves

(1) Subject to this section, a local government may request the Minister to reserve under section 41 any Crown land within its district described in a plan of survey or sketch plan for the purpose of passage through that land by —

(a) pedestrians;

(b) vehicles used by the holders of the freehold in, and occupiers of, land adjoining that land; and

and for any other compatible purpose.

(2) Before making a request under subsection (1), a local government must —

(a) advertise the purpose and details of the request in the prescribed manner; and

(b) send copies of that advertisement to the holders of the freehold in, and occupiers of, land adjoining the land in question, to suppliers of public utility services on the land in question and to the Planning Commission,

and specify in that advertisement a period of not less than 35 days from the day of that advertisement during which submissions relating to the request may be lodged with the local government.

(3) After the expiry of the period referred to in subsection (2), the local government must send to the Minister its request, together with copies of any submissions lodged with it during that period and its comments on those submissions.

(4) The Minister may, after receiving and considering a request and any accompanying submissions and comments sent to the Minister under subsection (3) —

(a) by order —

(i) grant the request; and

(ii) place the care, control and management of the mall reserve with the relevant local government or a State instrumentality;

(b) direct the relevant local government to reconsider the request, having regard to such matters as he or she thinks fit to mention in that direction; or

(5) On the registration of an order made under subsection (4)(a) —

(a) any road within the mall reserve is closed and section 58(6) applies to any such road as if that road had been closed under section 58; and

(b) the Minister may by order confer on the management body of the relevant mall reserve power to grant a lease or licence over, or to mortgage, the whole or any part of that mall reserve for the purpose referred to in subsection (1), and a person leasing land from a management body on which that power has been conferred may, if that lease so provides, sublease the whole or any part of the land so leased for that purpose.

(6) An order made under subsection (4)(a) or (5)(b) does not create any interest in Crown land in the relevant mall reserve in favour of the management body of that mall reserve.

(7) For the purposes of —

(a) obtaining access to land adjoining a mall reserve; or

(b) installing, maintaining or removing public utility services within a mall reserve,

the land within the mall reserve is to be treated as if it were a road.

60. Consultation with suppliers of public utility services concerning access to public utility services

If a supplier of public utility services has public utility services in a mall reserve, and the management body of the mall reserve proposes to create, place or erect any landscape improvement or structure in such a position that access to those public utility services may be affected, that management body must consult that supplier before that creation, placement or erection occurs.

61. By‑laws to be made by management bodies of mall reserves

(1) The management body of a mall reserve may, after consulting —

(a) the holders of the freehold in, and occupiers of, land who use or depend on the mall reserve for access to that land; and

(b) any supplier of public utility services having public utility services on that land,

make, subject to subsection (3), by‑laws for the care, control and management of the mall reserve.

(2) Without limiting the generality of subsection (1), by‑laws referred to in that subsection may —

(a) adopt, with or without modification, such provisions of the Road Traffic Act 1974 as may facilitate the control and management of traffic within the relevant mall reserve as if that mall reserve were a road within the meaning of that Act; and

(b) provide for conditions subject to which the relevant management body may, if it is empowered by an order made under section 59(5) to grant leases or licences in respect of land in that mall reserve, grant leases or licences that are capable of affecting the interests of the holders of the freehold in, or occupiers of, land adjoining that mall reserve.

(3) If a management body referred to in subsection (1) is a local government, the power to make by‑laws conferred on that management body by that subsection is to be construed as a power to make local laws under the Local Government Act 1995 for the purposes for which by‑laws may be made under this section.

62. Cancellation of mall reserves and revocation of management orders

(1) Subject to this section, the management body of a mall reserve may request the Minister to cancel the mall reserve.

(2) Section 59(2) and (3) applies, with any necessary modifications, to a request made under subsection (1) as if that request were a request made under section 59(1) and the requesting management body were a local government.

(3) The Minister may, after receiving and considering a request and any accompanying submissions and comments sent to the Minister under section 59(3) as read with subsection (2) —

(a) by order grant the request;

(b) direct the management body to reconsider the request, having regard to such matters as the Minister thinks fit to mention in that direction; or

(4) On the registration of an order made under subsection (3)(a) in respect of a mall reserve —

(a) the relevant local government or State instrumentality ceases to be the management body of the mall reserve;

(b) the mall reserve is cancelled and the land the subject of the mall reserve is by virtue of this subsection dedicated as a road; and

Division 3 — Public access routes

63. Terms used in this Division

In this Division —

relevant local government, in relation to any subject Crown land, means local government within the district of which the subject Crown land is situated;

subject Crown land means Crown land through which the route of a public access route passes or is intended to pass.

64. Declaration etc. of public access routes through Crown land

(1) Subject to this section, the Minister may, for the purpose of providing members of the public with access through Crown land to an area of recreational or tourist interest, by order delivered after all necessary consents have been obtained under subsection (3)(a) or after the expiry of the period referred to in subsection (3)(b), whichever is the later, to —

(a) the Registrar;

(b) each holder of an interest in the subject Crown land; and

declare a route —

(d) shown on a diagram or plan incorporated in that order and indicating the width of that route; and

(e) giving access through the subject Crown land to that area,

to be a public access route, and may by order delivered to the persons referred to in paragraphs (a), (b) and (c) vary or cancel a declaration made under this subsection.

(2) A declaration, or a variation or cancellation of a declaration, made under subsection (1) comes into operation on the day on which the relevant order is registered.

(3) Before making, or varying or cancelling, a declaration under subsection (1), the Minister must —

(a) consult each holder of an interest in the subject Crown land concerning, and obtain his or her consent in writing to, the proposed declaration, variation or cancellation; and

(b) cause to be published once in a newspaper circulating generally in the State a copy of the proposed declaration, variation or cancellation, together with an invitation to members of the public to comment in writing to the Minister on that declaration, variation or cancellation within such period of not less than 3 months after that publication as is specified in that invitation.

65. Nature, signposting and routes of public access routes

(1) A public access route is, subject to this Division, to be treated as an easement granted by the Minister under section 144 in favour of members of the public generally.

(2) The Minister may cause the route of each public access route to be signposted so as —

(a) to enable members of the public using that public access route to follow it; and

(b) to inform those members of the public in general terms of the contents of section 66 and that they use that public access route entirely at their own risk.

(3) If the actual route of a public access route differs from the route of the public access route as shown on the diagram or plan incorporated in the relevant order delivered under section 64(1), that actual route is to be taken to be the route of the public access route.

66. Restrictions on liability of Minister and others in respect of public access routes

(1) This section applies to a person who is or at the relevant time was the Minister, the relevant local government, any holder of an interest in the subject Crown land or any other person acting under the authority or direction of the Minister, the relevant local government or that holder.

(2) Subject to this Division, a person to whom this section applies is neither —

(a) obliged to perform any construction or maintenance in respect of a public access route; nor

(b) an occupier of premises in respect of a public access route for the purposes of the Occupiers’ Liability Act 1985.

(3) An action in tort does not lie against a person to whom this section applies for anything that that person has in good faith done in the performance or purported performance of a function under this Division.

(4) The protection given by subsection (3) applies even though the thing done in the performance or purported performance of a function under this Division may have been capable of being done whether or not this Division had been enacted.

(5) In subsections (3) and (4), a reference to the doing of any thing includes a reference to the omission to do any thing.

(6) Members of the public use a public access route entirely at their own risk.

67. Temporary closure of public access routes

The Minister may, after consulting the relevant local government —

(a) by notice published once in a newspaper circulating generally in the State, close the whole or any part of a public access route for such period as is specified in that notice; and

(b) cause such signs and barriers to be placed on or near the public access route or part of the public access route closed under this subsection as are necessary to warn members of the public of that closure and of the duration of that closure.

68. Provision of means of passage through or over fences

If the route of a public access route intersects with the line of a fence, the Minister must provide, or arrange with the relevant holder of an interest in the subject Crown land at the expense of the Minister to provide, a grid or other means of passage through or over that fence at the point of that intersection.

69. Right to use public access routes

Subject to this Division, a person may travel by any means along the whole or part of a public access route which is not closed under section 67.

70. Certain effects of public access routes

(1) Subject to this Division —

(a) the rights and obligations of the holder of an interest in the subject Crown land under that interest continue to apply in respect of the subject Crown land despite the existence of the public access route; and

(b) the holder of an interest in the subject Crown land is not entitled to any compensation for any reduction in the value of that interest resulting from the declaration under section 64(1) of a public access route through the subject Crown land, but such a reduction may be taken into account by the Minister when determining or re‑determining any amount payable to the Minister in respect of the subject Crown land.

(2) Nothing in this Division affects or prevents the continuance of any mortgage, charge, security or other encumbrance with which the subject Crown land is burdened.

71. Offences

(1) A person must not without reasonable excuse create or place any obstruction across or on a public access route which, or the relevant part of which, is not closed under section 67.

Penalty: $2 000.

(2) A person using a public access route must not hinder or obstruct the proper care, control or management of the subject Crown land.

Penalty: $2 000.

(3) A person using a public access route must not camp —

(a) on the public access route; or

(b) without the consent of the holder of an interest in the subject Crown land, elsewhere on the subject Crown land.

Penalty: $1 000.

Part 6 — Sales, leases, licences, etc. of Crown land

Division 1 — General

72. Terms used in this Part

In this Part —

conditional tenure land means land transferred in fee simple subject to conditions referred to in section 75(1), which land remains subject to those conditions;

employee has the same meaning as it has in the Public Sector Management Act 1994.

73. Advisory panel

The Minister may appoint an advisory panel to advise him or her in respect of the exercise of the powers, and the performance of the duties, conferred or imposed on the Minister by this Part.

Division 2 — Sale of Crown land

74. General powers of Minister in relation to sale of Crown land

(1) The Minister may sell Crown land and may, without limiting the generality of that power —

(a) invite expressions of interest in Crown land;

(b) invite public tenders for the purchase of Crown land;

(d) withdraw Crown land from offer for sale at any time before acceptance of that offer;

(e) lodge positive covenants or restrictive covenants or memorials concerning the performance of conditions of sale of Crown land;

(f) sell Crown land by public auction, public tender or private treaty;

(g) sell Crown land subject to easements or reservations; and

(h) sell Crown land by way of terms contracts requiring instalment payments.

(2) Subject to this Part, the Minister may in relation to Crown land —

(a) determine, and alter at any time before sale, conditions and covenants on title, prices, reserve prices, terms, conditions, interest rates and penalty interest rates;

(b) require a performance bond in respect of any such sale;

(d) pay a commission to a person acting on behalf of the Minister in the sale of Crown land.

(3) The Minister is not obliged to disclose any reserve price determined in relation to Crown land under subsection (2).

75. Minister may transfer Crown land in fee simple subject to conditions

(1) The Minister may transfer Crown land in fee simple subject to such conditions concerning the use of the land (the specified use) as the Minister determines.

(2) For the purposes of this section and of section 76, the unimproved value of conditional tenure land must be calculated as if the use of the land were not subject to any conditions.

(3) The fee simple of conditional tenure land may be transferred under subsection (1) for a nominal price or a discounted price because of the community benefit to be provided by the proposed development of the conditional tenure land for the specified use.

(4) When conditional tenure land is used in breach of any condition concerning the specified use —

(a) the conditional tenure land is liable to be forfeited under section 35; and

(b) the Minister may recover from the holder of the freehold in the conditional tenure land —

(i) if the fee simple in the conditional tenure land was transferred under subsection (1) for a nominal price, an amount equal to the unimproved value of the conditional tenure land at the time of that recovery; or

(ii) if the fee simple in the conditional tenure land was transferred under subsection (1) for a discounted price, an amount calculated using the following formula —

where —

A is the amount the Minister may recover from the holder of the freehold in the conditional tenure land;

P is the unimproved value of the conditional tenure land at the time the discounted price was paid;

DP is the discounted price;

R is the unimproved value of the conditional tenure land at the time of the recovery,

by action in a court of competent jurisdiction as a debt due to the Crown.

(5) Neither the fee simple, nor any other estate or interest, in conditional tenure land can be transferred without the written permission of the Minister, which may be given subject to conditions.

(6) Conditional tenure land cannot become the subject of any licence, mortgage, charge, security or other encumbrance without the written permission of the Minister, which may be given subject to conditions.

(7) The Minister may by order, on the application of the holder of the freehold in conditional tenure land accompanied, subject to subsection (7a), by payment to the Minister of the relevant amount referred to in subsection (4)(b)(i) or (ii), cancel the conditions to which the use of the conditional tenure land is subject.

(7a) The Minister may in prescribed circumstances, with the prior approval of the Treasurer, waive in whole or part the payment of the relevant amount referred to in subsection (4)(b)(i) or (ii), subject to such conditions as the Minister determines.

(8) The rule against perpetuities does not apply to conditions referred to in subsection (1).

[Section 75 amended by No. 59 of 2000 s. 19.]

76. Obligations of mortgagees of land transferred in fee simple subject to conditions concerning its use

(1) If the holder of the freehold in conditional tenure land subject to a mortgage defaults under the mortgage, the mortgagee must give the Minister notice in writing not less than 28 days before the mortgagee exercises any power under the mortgage in respect of that default.

(2) Subject to subsection (3), the mortgagee must not exercise his or her power of sale under the mortgage until the Minister has been paid the relevant amount referred to in section 75(4)(b)(i) or (ii) in respect of the conditional tenure land.

(3) The Minister may allow the mortgagee to exercise the power of sale referred to in subsection (2) before payment of the relevant amount referred to in that subsection if the mortgagee gives the Minister security to the satisfaction of the Minister for the payment of that amount on completion of that exercise.

(4) When the fee simple of the conditional tenure land is sold by the mortgagee in accordance with this section, the land ceases to be subject to the conditions referred to in section 75(1).

77. Application of purchase moneys arising from mortgagee sales

The proceeds of a sale by a mortgagee in accordance with section 76 are to be applied —

(a) first, in payment of the amount referred to in section 75(4)(b)(i) or (ii) if payment of that amount has not already been made under section 76;

(b) second, in payment of any amount owed by the mortgagor under the mortgage;

(d) fourth, in payment of amounts outstanding in respect of all subsequent encumbrances in respect of the land concerned; and

(e) fifth, in payment of any remaining surplus to the beneficial holder of the freehold.

78. Minister may enter into joint ventures for development and sale of Crown land

(1) The Minister may in accordance with the regulations enter into a joint venture with another person for the purpose of developing and selling Crown land.

(2) The expenses and income of a joint venture entered into under subsection (1) may be shared between the Minister and the other joint venturer by agreement.

Division 3 — Leasing of Crown land

79. Minister may lease Crown land for any purpose

(1) Subject to Part 7, the Minister may grant leases of Crown land for any purpose and may, without limiting the generality of that power —

(a) grant leases of Crown land by public auction, public tender or private treaty;

(b) fix the duration of any such lease;

(d) require a performance bond in respect of any such lease.

(2) The Minister may pay a commission to a person acting on behalf of the Minister in the granting of leases of Crown land.

(3) Without limiting the generality of conditions referred to in subsection (1)(c), those conditions include —

(a) options for renewal of leases granted; and

(b) options to purchase the fee simple of the Crown land leased,

under subsection (1), and conditions for the variation of those conditions.

(4) The Minister may at any time extend the term of a lease, other than a pastoral lease, having effect under this Act or vary the provisions of such a lease.

(5) Any sublease or other interest granted under a lease —

(a) the term of which is extended; or

(b) the provisions of which are varied,

under subsection (4) continues to have effect insofar as it is permitted to do so by that extension or variation.

80. Conditional purchase leases

(1) In this section —

conditional purchase lease means conditional purchase lease granted under subsection (2).

(2) The Minister may grant to an applicant a conditional purchase lease of any Crown land.

(3) A conditional purchase lease may be granted —

(a) for such term and subject to the payment of such rental, instalments and interest as the Minister thinks fit;

(b) on condition that improvements specified in the conditional purchase lease are made within the period so specified; and

(c) on such other conditions and subject to such covenants, reservations or exemptions as the Minister thinks fit or as are prescribed.

(4) When the Minister is satisfied that the lessee under a conditional purchase lease —

(a) has made improvements specified in the conditional purchase lease under subsection (3)(b); and

(b) has complied with all conditions, covenants, reservations and exemptions to which the conditional purchase lease is subject,

the Minister must transfer that Crown land in fee simple to that lessee —

(c) if a purchase price was fixed when the conditional purchase lease was granted, on payment to him or her of the full purchase price, whether or not paid by rental that the conditional purchase lease provides or the Minister agrees may be offset against the purchase price, together with any other outstanding rental or outstanding interest as the Minister may require the lessee to pay before the Crown land is transferred to the lessee; or

(d) if a purchase price was not fixed when the conditional purchase lease was granted, on payment to him or her of the full purchase price, which price is to be fixed by the Minister or calculated in accordance with the terms of the conditional purchase lease, together with any other outstanding rental or outstanding interest as the Minister may require the lessee to pay before the Crown land is transferred to the lessee.

(5) In determining whether under subsection (4)(c) or (d) the full purchase price has been paid, the Minister is to offset against the price fixed by him or her or calculated in accordance with the terms of the conditional purchase lease any rental payment that the conditional purchase lease provides or the Minister agrees may be offset against the purchase price.

(6) If the lease is mortgaged, is affected by another interest or is subject to a caveat and the lessee, during the continuance of the mortgage, other interest or caveat, becomes entitled under subsection (4), the mortgage, other interest or caveat is by operation of this subsection transferred to the fee simple and applies to the fee simple when transferred in all respects as if the fee simple had been referred to in the mortgage, other interest or caveat and has the same effect in respect of the fee simple as if it were a mortgage, other interest or caveat under the TLA.

[Section 80 amended by No. 59 of 2000 s. 20.]

81. Surrender of leases of Crown land

(1) The Minister may accept the surrender of a lease from the lessee of the relevant Crown land in respect of the whole or any part of the area to which the lease applies.

(2) On the acceptance of the surrender of a lease of Crown land under subsection (1), any sublease under that lease, and any interest or caveat dependent on such a sublease, continue to subsist unless that sublease is forfeited under section 35 or otherwise terminates according to law.

(3) The Minister may by order, with the consent of the relevant sublessee, vary the conditions to which a sublease which continues to subsist by virtue of subsection (2) is subject.

Division 4 — Provisions not restricted to either sale or leasing of Crown land

82. Revesting of land held by Crown in fee simple as Crown land

(1) The Minister may by order revest in the Crown, with or without existing encumbrances, land held by the Crown in fee simple.

(2) Land revested under subsection (1) is Crown land and may be dealt with accordingly by the Minister under this Act.</