Crown Land Management Act 2016 (NSW)

Crown Land Management Act 2016 No 58 An Act to make provision for the ownership, use and management of the Crown land of New South Wales; to repeal certain legislation consequentially; and for other purposes. Part 1 Preliminary Introductory note— This Part sets out the objects of this Act, defines terms and expressions used in this Act and explains what is (or is not) Crown land. It also provides for the application of this Act and its inter-relationship with other legislation. Division 1.1 Introduction 1.1 Name of Act This Act is the Crown Land Management Act 2016. 1.2 Commencement (1) This Act commences on a day or days to be appointed by proclamation, except as provided by subsection (2). (2) The following provisions commence on the date of assent to this Act— (a) Division 4.2 (Vesting of Crown land in local councils), (b) section 13.5 (Regulations), (c) Schedule 7 (Savings, transitional and other provisions). 1.3 Objects of Act The objects of this Act are— (a) to provide for the ownership, use and management of the Crown land of New South Wales, and (b) to provide clarity concerning the law applicable to Crown land, and (c) to require environmental, social, cultural heritage and economic considerations to be taken into account in decision-making about Crown land, and (d) to provide for the consistent, efficient, fair and transparent management of Crown land for the benefit of the people of New South Wales, and (e) to facilitate the use of Crown land by the Aboriginal people of New South Wales because of the spiritual, social, cultural and economic importance of land to Aboriginal people and, where appropriate, to enable the co-management of dedicated or reserved Crown land, and (f) to provide for the management of Crown land having regard to the principles of Crown land management. 1.4 Principles of Crown land management For the purposes of this Act, the principles of Crown land management are— (a) that environmental protection principles be observed in relation to the management and administration of Crown land, and (b) that the natural resources of Crown land (including water, soil, flora, fauna and scenic quality) be conserved wherever possible, and (c) that public use and enjoyment of appropriate Crown land be encouraged, and (d) that, where appropriate, multiple use of Crown land be encouraged, and (e) that, where appropriate, Crown land should be used and managed in such a way that both the land and its resources are sustained in perpetuity, and (f) that Crown land be occupied, used, sold, leased, licensed or otherwise dealt with in the best interests of the State consistent with the above principles. Division 1.2 Interpretation 1.5 General definitions (1) In this Act— appointment instrument, in relation to a Crown land manager, means the appointment instrument referred to in section 3.3 (as varied from time to time) for the manager. asset means any legal or equitable estate or interest (whether present or future, whether vested or contingent and whether personal or assignable) in real or personal property of any description (including money), and includes securities, choses in action and documents. authorised officer means a person appointed as an authorised officer under Division 10.3. community engagement strategy means a community engagement strategy approved under Division 5.3. compensation includes damages or any other form of monetary compensation. conduct includes any act or omission. Consumer Price Index means the Consumer Price Index (All Groups Index) for Sydney published by the Australian Statistician. Consumer Price Index number, in relation to a quarter, means the number for that quarter appearing in the Consumer Price Index. contaminate has the same meaning as in the Contaminated Land Management Act 1997. continued holding means each of the following— (a) a continued tenure (as defined in Schedule 1), (b) a continued irrigation tenure (as defined in Schedule 2), (c) a continued Western lands tenure (as defined in Schedule 3). council manager is defined in section 3.20. court attendance notice means— (a) in relation to proceedings for an offence commenced in the Local Court—a court attendance notice (within the meaning of the Criminal Procedure Act 1986) issued in respect of the person alleged to have committed the offence, and (b) in relation to proceedings for an offence commenced in the Land and Environment Court in its summary jurisdiction—an application for an order under section 246 of the Criminal Procedure Act 1986 in respect of the person alleged to have committed the offence. Crown land is defined in Division 1.3. Crown Land Acts means the following— (a) each of the Acts, or provisions of Acts, that were defined to be the Crown Lands Acts in section 3 (1) of the Crown Lands Act 1989 immediately before the repeal of the Crown Lands Act 1989, (b) each of the following Acts repealed by this Act— (i) the Hay Irrigation Act 1902, (ii) the Public Reserves Management Fund Act 1987, (iii) the Trustees of Schools of Arts Enabling Act 1902, (iv) the Wentworth Irrigation Act 1890, (v) the Western Lands Act 1901, (c) this Act. Crown land commissioner means a person appointed as a Crown land commissioner under section 12.2. Crown land management rules is defined in section 3.15. Crown land manager, in relation to Crown land, means a person appointed as a Crown land manager of the land under Division 3.2. Crown managed land means— (a) dedicated or reserved Crown land, and (b) any other land that is required or permitted to be managed under this Act as if it were dedicated or reserved Crown land. Note— For example, clause 7 (4) of Schedule 7, when read with clause 9B of that Schedule, provides for certain land that is not vested in the Crown or the State to be managed as if it were reserved Crown land. Crown Reserves Improvement Fund means the Crown Reserves Improvement Fund established by Division 12.5. Crown road has the same meaning as in the Roads Act 1993. dedicated Crown land means Crown land dedicated for use for one or more purposes under Part 2. Department means the Department of Industry. development and development application, in relation to land, have the same meanings as in the Environmental Planning and Assessment Act 1979. Eastern and Central Division is defined in section 1.6. enclosure permit is defined in section 5.34. filming project has the same meaning as in the Local Government Act 1993. forestry right has the same meaning as in section 87A of the Conveyancing Act 1919. function includes a power, authority or duty, and exercise a function includes perform a duty. General Register of Deeds means the General Register of Deeds kept under Division 1 of Part 23 of the Conveyancing Act 1919. government agency means any public authority, and includes— (a) a State owned corporation, and (b) Local Land Services, but does not include a local council or a Crown land manager. government sector agency has the same meaning as in the Government Sector Employment Act 2013. government sector employee means an employee of a government sector agency. holding means each of the following— (a) any lease or licence under this Act (including one that is a continued holding), (b) any incomplete purchase, (c) any other continued holding (except a permit or permission). Note— Schedules 1–3 provide for continued holdings that are leases and licences to continue in force as leases or licences under this Act. incomplete purchase means each of the following— (a) a continued incomplete tenure purchase (as defined in Schedule 1) that remains incomplete, (b) a continued incomplete irrigation lease purchase (as defined in Schedule 2) that remains incomplete, (c) a continued incomplete Western lands lease purchase (as defined in Schedule 3) that remains incomplete, (d) a new incomplete purchase that remains incomplete. land includes any waters on or under the surface of the land. land of the Crown includes, but is not limited to, Crown land. lawful authority for conduct or an activity is defined in subsection (2). liabilities means any liabilities, debts or obligations (whether present or future, whether vested or contingent and whether personal or assignable). local government area, in relation to a local council, has the same meaning as area in the Local Government Act 1993 in relation to the council. Lord Howe Island has the same meaning as Island in the Lord Howe Island Act 1953. mineral, in relation to a provision of this Act, means— (a) a mineral (as defined in the Mining Act 1992), and (b) any other substance prescribed by the regulations for the purposes of the provision. Ministerial Corporation means the Lands Administration Ministerial Corporation constituted by this Act, as provided by section 12.5. modification includes addition, exception, omission or substitution. motor vehicle has the same meaning as in the Road Transport Act 2013. native title certificate is defined in section 8.4. native title legislation means the Native Title Act 1993 of the Commonwealth and the Native Title (New South Wales) Act 1994 (and any regulations or other statutory instruments in force under either Act). native title rights and interests has the same meaning as in the Native Title Act 1993 of the Commonwealth. new incomplete purchase is defined in Part 5 of Schedule 4. non-council manager is defined in section 3.24. perpetual lease means a lease under this Act for which no term is specified. pollution has the same meaning as in the Protection of the Environment Operations Act 1997. public authority means any of the following— (a) a Minister, (b) a government sector agency, (c) a statutory body representing the Crown, (d) a local council or a county council (as defined in the Local Government Act 1993). public purpose, in relation to a provision of this Act, means any purpose declared to be a public purpose for the purposes of the provision by— (a) the Minister in a notice published in the Gazette, or (b) the regulations. Note— See also clause 33 (Existing declarations of public purposes) of Schedule 7. purchasable lease is defined in Schedule 4. Register means the Register kept under the Real Property Act 1900. registered proprietor, in relation to land, has the same meaning as in the Real Property Act 1900. reserved Crown land means Crown land reserved for use for one or more purposes under Part 2. rights means any rights, powers, privileges or immunities (whether present or future, whether vested or contingent and whether personal or assignable). Secretary means the Secretary of the Department. special purpose holding is defined in Division 5.7. State strategic plan for Crown land means a State strategic plan for Crown land that complies with Division 12.4. statutory land manager means a statutory land manager constituted under Schedule 5. structure includes any of the following— (a) any building, (b) any post, pile, stake, pipe, chain, wire or any other thing fixed to the soil or to anything fixed to the soil, (c) any roadwork, pathway or paving, (d) any works for the reclamation of land that are or are liable to be, or would, but for the reclamation, be or be liable to be, covered wholly or partly by water, (e) any excavation works, drain, canal, sump or foundation, whether lined or unlined. temporary structure means a temporary structure (as defined in the Environmental Planning and Assessment Act 1979), but only if that structure remains in place for less than 30 days. term lease means a lease under this Act for which a term is specified. travelling stock reserve has the same meaning as in the Local Land Services Act 2013. vacant Crown land means Crown land that is not held under a holding. vehicle includes— (a) any motor vehicle or other thing capable of transporting a person (including any aircraft, vessel, bicycle, bus, car, horse, train or tram), and (b) any trailer or caravan whether or not attached to any thing of that kind. vehicle offence means— (a) an offence against section 9.6, or (b) an offence against the regulations involving a vehicle being used, parked or moored in contravention of the regulations. waters includes a stream, creek, river, estuary, dam, lake or reservoir. Western Division is defined in section 1.6. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) There is lawful authority for a person's conduct or an activity for the purposes of this Act if it— (a) is authorised or required by or under this Act or another Act, or (b) is authorised or required by or under a holding of the person, or (c) occurs in any other circumstances prescribed by the regulations. (3) A reference in this Act to a repealed Act or repealed statutory rule is a reference to the repealed Act or repealed statutory rule as in force immediately before its repeal unless the context or subject-matter indicates or requires differently. (4) If this Act (or an instrument made under this Act) provides for an event or other thing to occur on a particular day, that event or thing is taken to occur at the beginning of that day unless the context or subject-matter indicates or requires differently. (5) Introductory and other notes included in this Act do not form part of this Act. 1.6 Divisions of State (1) For the purposes of this Act, the State is divided into the following 2 geographical areas— (a) the Eastern and Central Division, (b) the Western Division. (2) Subject to subsection (4), the Eastern and Central Division is comprised of the following— (a) those parts of the State remaining after both Lord Howe Island and the Western Division are excluded, (b) the coastal waters of the State as defined in Part 10 of the Interpretation Act 1987 (including the seabed and subsoil beneath, and the airspace above, those waters). (3) Subject to subsection (4), the Western Division is comprised by that part of the State recorded in the Register as Lot 1901, Deposited Plan 1133899. (4) The boundary between the Eastern and Central Division and the Western Division may be altered or redefined by the regulations. (5) The Minister is not to recommend the making of a regulation for the purposes of subsection (4) unless the Minister certifies that— (a) a notice describing the alteration or redefinition proposed to be made by the regulation has been published in the manner prescribed by the regulations, and (b) the notice stated that written objections and submissions relating to the proposed alteration or redefinition could be lodged with the Department not later than 28 days after publication of the notice, and (c) the Minister has considered the objections and submissions that were duly made. Division 1.3 Crown land 1.7 Definition of "Crown land" Subject to this Division, each of the following is Crown land for the purposes of this Act— (a) land that was Crown land as defined in the Crown Lands Act 1989 immediately before the Act's repeal, (b) land that becomes Crown land because of the operation of a provision of this Act or a declaration made under section 4.4, (c) land vested, on and from the repeal of the Crown Lands Act 1989, in the Crown (including when it is vested in the name of the State). Note— Clause 6 of Schedule 7 provides for certain land under Acts repealed by Schedule 8 to become Crown land under this Act. Section 1.10 then provides for this land to be vested in the Crown. Land that will become Crown land under this Act includes land vested in the Crown that is dedicated for a public purpose. This land was previously excluded from the definition of Crown land in the Crown Lands Act 1989. See also section 1.8 (2). 1.8 When land is vested in Crown (1) Land is not Crown land if it is vested in a Minister, or a statutory body representing the Crown, with express power under an Act (except the Interpretation Act 1987) to hold land in the exercise of the Minister's or body's functions. (2) Land may be Crown land even though it is dedicated for a public purpose under this Act or another Act or law. 1.9 When land ceases to be or is not Crown land (1) Land ceases to be Crown land if— (a) the land is sold, or lawfully contracted to be sold, and the purchase price or other consideration for the sale has been received by the Crown (or by a person on behalf of the Crown) regardless of whether the purchaser is recorded in the Register as the registered proprietor of the land, or (b) contracts for the sale of the land have been exchanged and the deposit has been received by the Crown (or by a person on behalf of the Crown). (2) Land to which subsection (1) (b) applies becomes Crown land again if the purchaser fails to complete the purchase following the exchange of contracts. Note— See section 1.10 (When land becomes Crown land because of this Act). (3) To avoid doubt, subsection (1) does not prevent the Minister (or any other person acting on behalf of the Crown) from completing a sale of land that has ceased to be Crown land because of that subsection. (4) Crown land does not include land under an incomplete purchase. (5) Land does not cease to be Crown land just because of the creation in respect of it of a folio of the Register in the name of the State. 1.10 When land becomes Crown land because of this Act (1) This section applies to land that becomes Crown land because of the operation of a provision of this Act or a declaration made under section 4.4. (2) Any land to which this section applies is vested in the Crown when it becomes Crown land as an estate in fee simple, freed and discharged from all estates, interests, trusts or obligations, except as provided by subsections (3), (4) and (6). (3) The vesting of land in the Crown does not operate to— (a) extinguish any mortgage over the land, or (b) revoke any lease, licence, easement or right of way in relation to the land, or (c) revoke or alter any dedication or reservation of the land, or (d) extinguish, revoke or alter any estate, interest, trust or obligation to the extent that it is continued over the land by the provision or declaration under which the land becomes Crown land, or (e) have any other kind of effect prescribed by the regulations. (4) A regulation for the purposes of subsection (3) (e) may provide that it extends to a vesting of land under this section occurring before the regulation was made. (5) Subsection (3) does not prevent a declaration under section 4.4 from including provisions that discontinue an interest of a kind referred to in that subsection. (6) A vesting of land under this section takes effect subject to any native title rights and interests existing in relation to the land immediately before the vesting. (7) To avoid doubt, a vesting of land under this section operates to change the ownership of the land even if the registered proprietor for the land specified in the Register remains unchanged. Note— The Registrar-General must alter the Register to reflect the change in ownership if the Minister requests it under section 1.11. (8) The operation of this section is not to be regarded as— (a) a breach of contract or confidence or otherwise as a civil wrong, or (b) a breach of any contractual provision prohibiting, restricting or regulating the assignment or transfer of the land, or (c) giving rise to any remedy by a party to an instrument, or as causing or permitting the termination of any instrument, because of a change in the beneficial or legal ownership of the land, or (d) an event of default under any contract or other instrument. (9) No attornment to the Crown by a lessee of the previous owner of the land is required. (10) No compensation is payable for the extinguishment of any estates, interests, trusts or obligations (or the abolition or loss of any office or other position) because of the operation of this section. (11) This section has effect subject to any different provision that is made by this Act. (12) In this section— instrument means an instrument (other than this Act) that creates, modifies or extinguishes rights or liabilities (or would do so if lodged, filed or registered in accordance with any law), and includes any judgment, order or process of a court. 1.11 Updating Crown land entries in Register (1) If the Minister requests it, the Registrar-General must alter the Register to state that the Crown is the registered proprietor of land under the Real Property Act 1900 if it has become Crown land because of the operation of a provision of this Act or a declaration made under section 4.4. (2) This section does not limit any power of the Registrar-General under Part 2 or 3 of the Real Property Act 1900 to alter the Register. 1.12 Relationship of Division with Real Property Act 1900 This Division has effect despite anything contained in section 42 of the Real Property Act 1900. Division 1.4 Application of Act 1.13 Relationship between Schedules 1–4 and Parts 5–7 (1) The provisions of Schedules 1–4 prevail over the provisions of Parts 5–7 of this Act to the extent of any inconsistency. Note— Schedules 1–4 contain provisions relating to continued holdings, land in the Western Division and purchasable leases for which special provision was made under the former Crown Lands (Continued Tenures) Act 1989, Hay Irrigation Act 1902, Wentworth Irrigation Act 1890 and Western Lands Act 1901. (2) Subsection (1) does not apply to the extent that its application is— (a) expressly excluded or modified by a provision of this Act, or (b) excluded by the regulations. 1.14 Application of Act (1) This Act applies in relation to both the Eastern and Central Division and the Western Division. (2) This Act does not apply in relation to Lord Howe Island. 1.15 Dealings with Crown land generally subject to Act (1) Crown land must not be occupied, used, sold, leased, licensed, dedicated, reserved or dealt with in any other way unless it is authorised by this Act. (2) However, this Act does not affect the operation of another Act to the extent that it— (a) makes special provision for particular Crown land or any particular kind of Crown land, or (b) authorises Crown land to be dealt with in any manner inconsistent with this Act. Part 2 Dedicated or reserved Crown land Introductory note— This Part provides for the dedication or reservation of Crown land by the Minister. It includes provisions dealing with— (a) the circumstances in which the Minister may dedicate or reserve Crown land, and (b) the alteration, addition and purposes of dedicated or reserved Crown land, and (c) the circumstances in which a dedication or reservation may be revoked, and (d) the permitted uses of dedicated or reserved Crown land, and (e) the kinds of dealings with dedicated or reserved Crown land that are permitted (including certain special powers of the Minister over dealings). Part 3 enables the Minister to appoint Crown land managers for dedicated or reserved Crown land. Division 5.3 also requires the Minister to approve community engagement strategies for proposed alterations or removals of the purposes for which dedicated or reserved Crown land is dedicated or reserved. Division 2.1 Introduction 2.1 Crown land to which Part applies This Part applies to all Crown land except Crown land excluded under this Division. 2.2 Exclusion of Crown land from Part The Minister may, by order published in the Gazette, exclude specified Crown land (or specified kinds of Crown land) from the application of this Part. Division 2.2 Dedicated Crown land 2.3 Minister may dedicate Crown land (1) The Minister may, by notice published in the Gazette, dedicate Crown land for use for one or more purposes specified in the notice. (2) Before doing so, the Minister must be satisfied that the use of the land for each purpose is— (a) consistent with one or more objects of this Act, or (b) in the public interest. 2.4 Adding other Crown land to existing dedicated Crown land (1) The Minister may, by notice published in the Gazette, add other Crown land to any dedicated Crown land. (2) When the notice takes effect, the additional land becomes part of the dedicated Crown land and is to be managed, used and dealt with accordingly. 2.5 Proposed dedication or addition must be tabled in Parliament (1) A notice dedicating Crown land (or adding Crown land to dedicated Crown land) cannot be published in the Gazette unless the proposed notice is tabled in both Houses of Parliament. (2) The proposed notice must be tabled in the House concerned at least 10 sitting days before the notice is published in the Gazette. 2.6 Existing dedicated or reserved Crown land can be dedicated (1) Crown land may be dedicated (or added to dedicated Crown land) even if it is already dedicated or reserved Crown land or part of dedicated or reserved Crown land. (2) However, the dedication or reservation of Crown land that is already dedicated or reserved Crown land (or already part of dedicated or reserved Crown land) ceases to have effect when its new dedication, or its addition to other dedicated Crown land, takes effect. 2.7 Revocation of dedication (1) The Minister may, by notice published in the Gazette, revoke the dedication (or part of the dedication) of dedicated Crown land. (2) However, a notice revoking a dedication must not be published unless— (a) the Minister has caused a proposal to revoke the dedication to be published in the Gazette (the revocation proposal), and (b) a copy of the revocation proposal is tabled in each House of Parliament within 10 sitting days after its publication, and (c) notice of a resolution disallowing the revocation proposal is not duly given under subsections (3) and (4) or, if it is, the resolution is not passed or the notice of the resolution is withdrawn or lapses. (3) Either House of Parliament may pass a resolution disallowing the revocation proposal after the copy of the proposal is tabled in that House. (4) Notice of a disallowance resolution must be given within 14 sitting days after the revocation proposal is tabled in the House. (5) A dedication of land may be revoked even if— (a) after dedication, a Crown grant has issued or a folio of the Register has been or is created, or (b) before dedication, the land had been alienated by the Crown and subsequently resumed, purchased or acquired in any other way by the Crown. (6) This section extends to land that has ceased to be Crown land but remains subject to a dedication. Division 2.3 Reserved Crown land 2.8 Minister may reserve Crown land (1) The Minister may, by notice published in the Gazette, reserve Crown land for use for one or more purposes specified in the notice. (2) Before doing so, the Minister must be satisfied that the use of the land for each purpose is— (a) consistent with one or more objects of this Act, or (b) in the public interest. 2.9 Adding other Crown land to existing reserved Crown land (1) The Minister may, by notice published in the Gazette, add other Crown land to any reserved Crown land. (2) When the notice takes effect, the additional land becomes part of the reserved Crown land and is to be managed, used and dealt with accordingly. 2.10 Reserved Crown land can be reserved again (1) Crown land may be reserved (or added to reserved Crown land) even if it is already reserved Crown land or part of other reserved Crown land. (2) However, if Crown land is already reserved Crown land (or part of other reserved Crown land) when it is reserved (or added to reserved Crown land) by a notice under this Division— (a) the existing reservation ceases to have effect in relation to the land unless the notice provides differently, and (b) for land that already forms part of other reserved Crown land—the reservation of the rest of the other Crown land remains unaffected. 2.11 Revocation of reservation (1) The Minister may, by notice published in the Gazette, revoke the reservation (or part of the reservation) of reserved Crown land. (2) This section extends to land that has ceased to be Crown land but remains subject to a reservation. Division 2.4 Use of dedicated or reserved Crown land 2.12 Dedicated or reserved Crown land to be used for limited purposes Dedicated or reserved Crown land may be used only for the following purposes— (a) the purposes for which it is dedicated or reserved, (b) any purpose incidental or ancillary to a purpose for which it is dedicated or reserved, (c) any other purposes authorised by or under this Act or another Act. Note— Section 3.38 authorises dedicated or reserved Crown land to be used for a purpose specified in a plan of management for the land. See also sections 2.18 and 2.19. 2.13 Use of dedicated or reserved Crown land with multiple purposes Dedicated or reserved Crown land that is dedicated or reserved for use for more than one purpose may be used for any one or more of those purposes. 2.14 Additional purposes for dedicated or reserved Crown land (1) The Minister may, by notice published in the Gazette, authorise dedicated or reserved Crown land to be used for one or more additional purposes. (2) Before doing so, the Minister must be satisfied that the use of the dedicated or reserved Crown land for each additional purpose— (a) would be in the public interest, and (b) would not be likely to materially harm the use of the land for any of the purposes (an existing purpose) for which it is dedicated or reserved. (3) Without limitation, the following considerations are relevant to the question of whether the use of dedicated or reserved Crown land for an additional purpose would not be likely to materially harm its use for an existing purpose— (a) the proportion of the area of the land that may be affected by the additional purpose, (b) if the activities to be conducted for the additional purpose will be intermittent, the frequency and duration of the impacts of those activities, (c) the degree of permanence of likely harm and in particular whether that harm is irreversible, (d) the current condition of the land, (e) the geographical, environmental and social context of the land, (f) any other considerations that may be prescribed by the regulations. (4) An additional purpose does not limit any existing purpose. 2.1