Lord Howe Island Act 1953 (NSW)

Lord Howe Island Act 1953 No 39 An Act to make provision for the care, control and management of Lord Howe Island; to constitute a Lord Howe Island Board and an Island Committee and to define their respective powers, authorities, duties and functions; to make provision relating to the tenure of land upon the said Island; to validate certain matters; and for purposes connected therewith. Part 1 Preliminary 1 Name of Act and commencement (1) This Act may be cited as the Lord Howe Island Act 1953. (2) This Act shall commence upon a day to be appointed by the Governor and notified by proclamation published in the Gazette. 2 (Repealed) 3 Definitions (1) In this Act, unless the context or subject matter otherwise indicates or requires— Board means the Lord Howe Island Board. Crown lands means lands of the Island which are vested in the Crown and not permanently dedicated to any public purpose. Island means the island known as Lord Howe Island and all adjacent islands and coral reefs situated within one marine league measured from low-water mark on the coast of Lord Howe Island together with the islands known as Ball's Pyramid, Wheatsheaf Island, Observatory Rock and South-East Rock and the unnamed islands in the vicinity thereof. Islander means, subject to subsection (2), a person who— (a) resided on the Island immediately before the commencement of Schedule 1 (2) (c) to the Lord Howe Island (Amendment) Act 1981, and was an Islander within the meaning of this Act as in force immediately before that commencement, (b) has resided on the Island continuously since that commencement and for the period of 5 years that immediately preceded that commencement, (c) resides on the Island and has so resided continuously during the immediately preceding period of 10 years, or (d) is, on the recommendation of the Board made in special circumstances, declared by the Minister, by order published in the Gazette and for the time being in force, to have retained or acquired the status of an Islander. Member means member of the Board. Prescribed means prescribed by this Act or by the regulations. Regulations means regulations made under this Act. Reside and residence mean a residing by the person referred to in the context continuously and in good faith on the land indicated by the context as his or her usual home, without any other habitual residence. Vacant Crown lands means Crown lands not reserved or dedicated or held under any lease from the Crown. (2) In determining for the purposes of this Act whether a person resided or resides on the Island at any time or resided continuously on the Island during any period, an absence from the Island— (a) to attend a school, college, university or other educational institution, (b) at any time when a school, college, university or other educational institution attended by that person is closed for a holiday or during a vacation, (c) during any period not exceeding 10 years or during periods totalling not more than 10 years, for the purpose of gaining experience in a trade, profession or other gainful employment, by a person who, immediately before the commencement of the person's first such absence, resided on the Island shall be deemed not to interrupt residence on the Island. (3) Notes included in this Act do not form part of this Act. Part 2 Lord Howe Island Board Division 1 Constitution of the Board 4 Lord Howe Island Board (1) There is constituted a corporation under the name of the "Lord Howe Island Board". (2) The Board is charged with the responsibility of administering the affairs of the Island. (3) The Board is to consist of 7 members, of whom— (a) four are to be Islanders, and (b) one is to be a person appointed to represent the interests of business and tourism, and (c) one is to be a person appointed to represent the interests of conservation, and (d) one is to be a person employed in the Department of Planning, Industry and Environment. (4) The members referred to in subsection (3) (a) are to be appointed by the Minister following an election conducted in accordance with Division 3. (5) The members referred to in subsection (3) (b), (c) and (d) are to be appointed by the Minister, and are not to be Islanders. (6) For the purposes of any Act, the Board is taken to be a statutory body representing the Crown. (7) Schedule 1A has effect with respect to the constitution and procedure of the Board. 5 Board's charter (1) The Board has the following charter— (a) to provide directly or on behalf of other levels of government, after due consultation, adequate, equitable and appropriate services and facilities for the Island community and to ensure that those services and facilities are managed efficiently and effectively, (b) to exercise community leadership, (c) to exercise its powers, authorities, duties and functions in a manner that is consistent with and actively promotes the multicultural principles, (d) to promote and to provide and plan for the needs of children, (e) to manage, protect, restore, enhance and conserve the Island's environment in a manner that is consistent with and promotes the principles of ecologically sustainable development set out in section 6 (2) of the Protection of the Environment Administration Act 1991, (f) to manage, protect, restore, enhance and conserve— (i) vacant Crown lands, and (ii) lands reserved or dedicated under section 19 or 19A (including, in particular, the Lord Howe Island Permanent Park Preserve), in a manner that recognises the World Heritage values in respect of which the Island is inscribed on the World Heritage List referred to in the United Nations Convention Concerning the Protection of the World Cultural and Natural Heritage, (g) subject to paragraphs (e) and (f), to promote the Island as a tourist destination, (h) to have regard to the long term and cumulative effects of its decisions, (i) to bear in mind that it is the custodian and trustee of public assets and to effectively account for and manage the assets for which it is responsible, (j) to facilitate the involvement of members of the Board, members of the public, users of facilities and services and the Board's staff in the development, improvement and co-ordination of the Board's powers, authorities, duties and functions, (k) to raise funds for Island community purposes by the fair imposition of charges and fees, by income earned from investments and, when appropriate, by borrowings and grants, (l) to keep the Island community and the State government (and through it, the wider community) informed about its activities, (m) to ensure that, in the exercise of its regulatory powers, authorities, duties and functions, it acts consistently and without bias, particularly where an activity of the Board is affected, (n) to be a responsible employer. (2) The Board, in the exercise of its powers, authorities, duties and functions, must pursue its charter but nothing in the charter or this section gives rise to, or can be taken into account in, any civil cause of action. 6 Staff Persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable the Board to exercise its functions. Note— Section 59 of the Government Sector Employment Act 2013 provides that the persons so employed (or whose services the Board makes use of) may be referred to as officers or employees, or members of staff, of the Board. Section 47A of the Constitution Act 1902 precludes the Board from employing staff. Division 2 7–9 (Repealed) Division 3 Elections 9A Elections The Electoral Commissioner for New South Wales shall— (a) as soon as practicable after the commencement of this Division—conduct an election for the purpose of determining the Islanders to be appointed to the Board pursuant to section 4 (3) (a), (b) not later than 3 years after that election and in every third year thereafter—conduct an election for the same purpose, and (c) as the occasion requires—conduct an election for the purpose of determining the Islander to be appointed to fill a vacancy in the office of a member of the Board. 9B Electors A person enrolled on the State electoral roll for the electorate in which the Island is situated is entitled to be enrolled as an elector for an election under this Division if the person is resident on the Island and the person's address on that electoral roll is an address on the Island. 9C Elections The enrolment of electors, the nomination of persons as candidates at an election under this Division, the time for holding such an election, the appointment of electoral officers, the system of election, the method of voting, the conduct of the election, the declaration of the poll and all matters associated with the election shall be as prescribed. Part 3 Powers, authorities, duties and functions of the Board 10 Ministerial control In the exercise and discharge of its powers, authorities, duties and functions the Board shall be subject in all respects (except in so far as it makes a report or recommendation) to the direction and control of the Minister. 11 General functions of Board (1) The Board shall be charged with the care, control and management of the Island and of the affairs and trade of the Island. It may adopt any measures and may examine and explore proposals and devise initiate and execute schemes for the improvement of the conditions and for the welfare of the Island and of the residents thereof. (2) The Board may arrange or provide for the gathering, collection and sale of any produce of the Island. (3) The Board shall, subject to any other Act in force relating to the protection or conservation of fisheries, fauna or flora, take all practicable measures to protect and conserve the fisheries, fauna and flora of the Island. (4) (a) The Board shall, subject to any other Act in force relating to the prevention, control or suppression of fire, take all practicable measures to protect the Island from fire. (b) For the purposes of this subsection the Board shall have and may exercise the powers, authorities and functions conferred upon councils under the Rural Fires Act 1997. 12 Powers, authorities, duties and functions of Board (1) The Board may— (a) provide, construct, improve, maintain, protect, repair, drain and cleanse roads upon the Island, (b) do all things necessary from time to time for the promotion and preservation of public health, safety and convenience upon the Island, (c) control and regulate the erection and use of buildings and structures upon the Island, (d) provide, control and manage upon the Island grounds for public health, recreation, convenience, enjoyment or other public purpose of the like nature including parks, children's playgrounds, sports grounds and gardens, (e) construct, extend, protect, maintain, control and manage upon the Island works of water supply or sewerage or drainage and any works incidental thereto and works in connection therewith or separate therefrom for the supply of electricity, and make and levy rates and charges for the maintenance and management thereof or for the payment of instalments of capital debts and interest thereon, (f) construct, maintain, control, manage and lease wharves and anchorages, (g) provide public buildings and offices, residences for members of staff of the Board, and shops, offices and other buildings for lease to the public, (h) exercise and discharge any powers, authorities, duties and functions which the Board may be authorised or required to exercise and discharge by the regulations. (2) For the purpose of enabling the Board to exercise and discharge any powers, authorities, duties and functions conferred or imposed upon it by this Act the Governor may grant to the Board any vacant Crown lands and impose in such grant such terms and conditions as the Governor may deem desirable. (3) (Repealed) 12A Advances by Board on mortgage (1) The Board may, on the application of an Islander, advance moneys to the Islander— (a) for the whole or part of the consideration for the transfer of a lease under this Act to the Islander pursuant to section 23, or (b) for the effecting of improvements on land the subject of a lease under section 21 held by the Islander, on the security of a mortgage of that lease in favour of the Board. (2) The Treasurer may from time to time make moneys available to the Board for advances under this section. 13 Powers of Board as to tourists and licensing business (1) The Board may— (a) control and regulate the tourist trade to and upon the Island, (b) require persons carrying on such businesses or trades as the Board may determine to be licensed. Any such licence shall be subject to the payment of such fee and may include such terms and conditions as may be prescribed or as the Board may determine. (2) In relation to persons associated with tourist accommodation or other commercial undertakings, the Board's power under subsection (1) (b) to require persons to be licensed is subject to the regulations. 14 Power to delegate (1) The Board may with the approval of the Minister authorise any person to exercise or perform on behalf of the Board any power, authority, duty or function of the Board other than a power, authority, duty or function relating to— (a) the granting of leases, (b) any other matter which may be prescribed. (2) (a) Any such authority may, if the Board so resolves, be unlimited as to the period during which it may be exercised, or may be exercisable only during such period as may be specified in the resolution. (b) The exercise of any such authority shall be subject to such limitations and conditions as may be specified by the Board by resolution, or as may be prescribed. (3) Any person when acting in the exercise of any such authority and within its scope, shall be deemed to be the Board. (4) Any authority conferred by the Board under this section may be withdrawn by the Board by subsequent resolution, either wholly or in part. (5) No act of any person done within the scope of any such authority during the period in which such authority was in force shall be invalidated by reason of a withdrawal of the authority. 14A Personal liability A matter or thing done or omitted to be done by— (a) the Board or a committee of the Board, or (b) a member of the Board, a member of a committee of the Board, a member of staff of the Board or any person acting under the direction of the Board or a committee of the Board, does not, if the matter or thing was done or omitted to be done in good faith for the purposes of executing this Act, subject the member or a person so acting personally to any action, liability, claim or demand. 15 Charges and fees Where the Board— (a) supplies any service, product or commodity, (b) gives any permission, (c) receives any application for its approval, the Board may make, demand, levy and recover such charges and fees as may be prescribed or where no charge or fee is prescribed such charges and fees as may be fixed by the Board subject to the maximum (if any) prescribed. Part 3A Environmental planning and assessment 15A Application of EPA Act (1) Parts 4, 4A and 5A and Division 2A of Part 6 of the Environmental Planning and Assessment Act 1979 apply to the Island as if a reference to the consent authority were a reference to the Board. (2) For the purposes of that Act— (a) the Island is taken to be a region within the meaning of that Act, and (b) the Board is taken to be the council of an area situated in that region. 15B Application of Act No 80, 1974 Part 5 of the National Parks and Wildlife Act 1974 applies to and in respect of land dedicated under section 19A as if it were a national park except that— (a) a reference in that Part to the Minister administering that Act shall be construed as a reference to the Minister administering this Act, and (b) a plan of management for that land in force under that Part shall be carried out and given effect to by the Board instead of as provided by section 81 (1) of that Act. Part 4 Land tenure Division 1 Vesting of Island in Crown 16 Island vested in the Crown The Island is hereby vested in the Crown freed and discharged from any estate of any person (other than any estate conferred by or arising out of any lease entered into between the Governor-General of the Commonwealth and the Governor of the State of New South Wales) and any reservation affecting the Island immediately before the commencement of this Act is hereby revoked. 17 No compensation payable No compensation shall be payable to any person in respect of the vesting of the Island in the Crown under section 16. Division 2 How Crown lands may be dealt with 18 Crown lands not to be dealt with except under this Act Crown lands shall not be dealt with except under and subject to the provisions of this Act. 19 Reservation or dedication of Crown lands for public purposes (1) The Minister on the recommendation of the Board may by notification in the Gazette reserve or dedicate Crown lands in such manner as may seem best for the public interest for any purpose declared by the Minister by notification in the Gazette to be a public purpose under this section. (2) The Minister on a like recommendation and by a like notification may modify, alter or revoke any reservation or dedication under this section. 19A Lord Howe Island Permanent Park Preserve (1) The land from time to time described in Schedule 1 is hereby permanently dedicated as the "Lord Howe Island Permanent Park Preserve" for the public purpose of preserving native flora and fauna. (2) The Governor may, by notification published on the NSW legislation website, amend Schedule 1 to enlarge the area of land described therein. (3) The dedication effected by subsection (1), and any notification published under subsection (2), may not be revoked except by an Act. (4) Land dedicated under subsection (1) may not be leased. 19B Enforcement of plan of management (1) A person who uses any part of land the subject of a dedication in force under section 19A in a manner that contravenes the plan of management for the land is liable to a penalty not exceeding 50 penalty units. (2) Where a penalty is imposed on a person under subsection (1) for erecting, or causing to be erected, a building, work or structure, the Board may, by notice in writing specifying a reasonable time for compliance therewith, order that person to demolish the building, work or structure and to remove the materials from the dedicated land. (3) The provisions of section 678 (1), (2), (3), (4), (5), (6) and (8) of the Local Government Act 1993, apply to land in respect of which an order of the Board is in force under subsection (2) as if— (a) a reference in those provisions to a council were a reference to the Board, and (b) a reference in those provisions to an order were a reference to an order under subsection (2). 20 Appointment of trustees (1) The Minister may by notification in the Gazette appoint— (a) the Board, or (b) on the recommendation of the Board persons, not being in any case less than three nor more than seven in number, trustees to be charged with the care, control and management of lands reserved or dedicated under section 19 or 19A. (2) (a) A person who holds a particular office or position may be appointed as a trustee under this section by virtue of holding that office or position. (b) Where any such appointment is made, then in ascertaining the number of trustees for the purposes of subsection (1), the person so appointed shall not be counted. (c) A person appointed to be a trustee by virtue of holding a particular office or position shall cease to hold office as trustee on the day upon which the person ceases to hold that office or position. (3) (a) The number ascertained by dividing the total number of trustees by two and adding one to the quotient (any fractional remainder being disregarded) shall be the number of trustees necessary to form a quorum at any meeting of the trustees. (b) Any duly convened meeting of the trustees at which a quorum is present shall be competent to transact any business of the trustees. (c) A decision of the majority of trustees present at a meeting shall be the decision of the trustees. 20A Leases to Commonwealth The Minister may lease vacant Crown lands to the Commonwealth at such rent and on such terms and subject to such conditions, reservations and provisions as are agreed upon. 21 Leases in perpetuity for residence (1) Subject to this section the Minister may lease areas not exceeding in any case 2 hectares of vacant Crown lands for the purpose of residence. (2) A lease under this section shall be in or to the effect of the prescribed form, and may only be granted to an Islander of or above the age of 18 years or 2 or more such Islanders as joint tenants or tenants in common. (3) The title to a lease under this section shall be a lease in perpetuity. (4) An application for a lease under this section shall be made to the Board in the manner and in or to the effect of the prescribed form. (5) The Board shall report to the Minister as to whether there is any objection in the public interest or otherwise to the granting of the application either as to the whole or any part of the land the subject of the application and generally as to the merits thereof. If the Board deems it expedient to recommend the granting of the application either as to the whole or any part of the land the subject of the application it shall also report as to what conditions (if any) should attach to the lease. (6) After receipt of such report the Minister may grant a lease either as to the whole or any part of the land the subject of the application if the Board so recommends, or the Minister may at his or her discretion refuse the application. (7) Subject to this subsection and subsections (7A) and (7B), a condition of residence on the lease shall attach thereto in perpetuity, and shall be performed by the holder or sublessee thereof for the time being, and residence shall commence within six months after the granting of the application or such further period as the Minister on the recommendation of the Board may approve. Where the holder or the owner (subject to mortgage) or sublessee of the lease has been or shall be prevented by sickness of himself or herself or family or other adverse circumstance from performing such condition, the Board may, upon application as prescribed, and on sufficient reason being shown, suspend such condition for such period and subject to such conditions as the Board may approve. (7A) The Minister may, in special circumstances, for such time and on such terms and conditions as the Minister thinks fit, suspend the condition of residence on a lease held or owned (subject to mortgage) by, or subleased to, an Islander who already (whether jointly or not) holds or owns (subject to mortgage) or subleases not more than one other lease. (7B) Where a lease is held or owned (subject to mortgage) by, or is subleased to, 2 or more persons jointly, subsections (7) and (7A) extend to authorising suspension of the condition of residence in respect of any of the joint holders, owners or sublessees in the same way as it does in respect of a sole holder, owner or sublessee. (8) The Minister may annex to any such lease such conditions reservations and provisions as the Minister may think fit. Any such condition reservation or provision annexed to such lease may on application by the lessee in the prescribed manner and on the recommendation of the Board be varied modified or revoked by the Minister. (9)–(11) (Repealed) 21A (Repealed) 22 Special leases (1) Subject to this section the Minister may lease Crown lands for cultivation or grazing or cultivation and grazing or for such other purpose as the Minister on the recommendation of the Board may approve. (2) The term of a lease under this section may be fixed for any period not exceeding ten years, but such term may, on the recommendation of the Board, be extended by the Minister for such period as the Board may recommend. (3) A lease may only be granted under this section to the holder of a lease under section 21. (4) An application for a lease under this section shall be made to the Board in the manner and in or to the effect of the prescribed form. (5) The Board shall report to the Minister as to whether there is any objection in the public interest or otherwise to the granting of the application either as to the whole or any part of the land the subject of the application and generally as to the merits thereof. If the Board deems it expedient to recommend the granting of the application either as to the whole or any part of the land the subject of the application it shall also report as to what conditions (if any) should attach to the lease and shall proceed to determine the rent of the land. (6) After receipt of such report the Minister may grant a lease either as to the whole or any part of the land the subject of the application if the Board so recommends, or the Minister may at his or her discretion refuse the application. (7) The Minister may annex to any such lease such conditions reservations and provisions as the Minister may think fit. Any such condition reservation or provision annexed to such lease or the purpose for which the lease has been granted may on application by the lessee in the prescribed manner and on the recommendation of the Board be varied modified or revoked by the Minister. (8) The Minister may, on the recommendation of the Board, withdraw from any lease under this section any land required for home sites or public purposes. (9) A lessee from whose lease land has been withdrawn under subsection (8) is entitled to compensation, as determined by the Valuer-General, for the loss of that land from the lease and for the loss of the improvements on that land. (10) The compensation payable under subsection (9), in so far as it relates to the loss of land, is to be calculated having regard to the unexpired period of the lease or, if the unexpired portion of the lease is less than 5 years, as if the unexpired portion of the lease were 5 years. (11) Without limiting any other ground on which the Minister may refuse to renew a lease under this section, the Minister may, on the recommendation of the Board, refuse to renew such a lease if the land concerned is required for home sites or public purposes. (12) A lessee in respect of whose lease the Minister— (a) has refused to grant a renewal, and (b) has notified the lessee that the reason for the refusal is that the land concerned is required for home sites or public purposes, is entitled to compensation, as determined by the Valuer-General, for the loss of his or her expectation that the lease would be renewed. (13) The compensation payable under subsection (12) is to be calculated on the basis that the period for which the lease would have been renewed, but for the refusal, would have been 5 years. (14) The regulations may make provision, not inconsistent with subsection (13), for or with respect to the making and notification of determinations under subsections (9) and (12). (15) A person who is dissatisfied with the Valuer-General's determination of compensation under subsection (9) or (12) may appeal to the Land and Environment Court against the determination. (16) An appeal under subsection (15) must be lodged within 90 days after notice of the determination is served on the person concerned. 22A Surrenders (1) The holder of a lease under this Act may lodge in the prescribed manner an instrument of surrender, in or to the effect of the prescribed form, as to the whole or a part of the land comprised in the lease. (2) Subject to paragraph (c) of subsection (4A) of section 23, the surrender shall take effect on the day of its acceptance by the Minister, on the recommendation of the Board. (3) The Board may determine, demand and recover the costs, including costs of any necessary survey, in connection with the surrender. 22B Annual rents (1) Subject to the regulations, the annual rent for a lease granted under section 21 or 22 is to be as determined from time to time by the Board. (2) A new determination under this section with respect to a lease the subject of an existing determination takes effect— (a) on the third anniversary of the date on which the existing determination took effect, or (b) on such later date as may be specified in the new determination. (3) Subsection (2) (b) does not permit a determination to specify a date that is earlier than the date on which the determination is made. (4) The annual rent for a lease is payable in advance. 23 Transfers and subleases (1) (a) A lease under this Part may be transferred in the prescribed form and manner as to the whole or a part of the land comprised in the lease or may be sublet at any time, but the consideration for the transfer shall not exceed the fair market value of the interest of the transferor in the unimproved land the subject of the lease, the fair market value of the improvements on the land at the commencement of the lease and of any improvements subsequently effected thereon with the approval of the Board and, in the case only of a lease of land used for commercial purposes, a sum for the goodwill of the business conducted thereon, being goodwill transferred to the transferee in connection with the transfer of the lease or accruing to the transferee in consequence thereof. Such fair market values and, as the case may require, such sum for goodwill shall be as determined by the Valuer-General. (b) Notwithstanding anything in paragraph (a), a lease shall not be transferred, by way of mortgage or discharge of mortgage, as to part only of the land comprised in the lease. (1A) A lease may be transferred or subleased to 2 or more persons as joint tenants or tenants in common but, for the purposes of any transfer or sublease to 2 or more persons who are not all Islanders, a reference in this Part (however expressed) to a person other than an Islander applies in respect of each transferee or sublessee who is not an Islander. (2) Application for consent to transfer, except— (a) by way of discharge of mortgage, or (b) to the Board by way of mortgage as security for an advance under section 12A, or to sublet a lease under this Act shall be made in the prescribed form and manner, and such transfer or subletting shall not be effected, or if effected shall not be valid, unless the consent thereto of the Minister and, in the case of a transfer (not being a transfer by way of mortgage) or subletting to a person other than an Islander, the approval of the Governor, has been obtained. (3) The Minister may consent to the transfer (not being a transfer referred to in paragraph (a) or (b) of subsection (2)) or subletting if the Board so recommends, or the Minister may at his or her discretion refuse consent. (4) The Board shall have an absolute discretion to recommend the granting or refusal of any applicati