Royal Botanic Gardens and Domain Trust Act 1980 (NSW)

Royal Botanic Gardens and Domain Trust Act 1980 No 19 An Act to constitute the Royal Botanic Gardens and Domain Trust and define its powers, authorities, duties and functions; to vest certain land and other property in that Trust; and to repeal the Domain Leasing Act 1961. Part 1 Preliminary 1 Name of Act This Act may be cited as the Royal Botanic Gardens and Domain Trust Act 1980. 2 Commencement (1) This section and section 1 shall commence on the date of assent to this Act. (2) Except as provided in subsection (1), this Act shall commence on such day as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette. 3 (Repealed) 4 Definitions (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires— Executive Director means the person employed in the Public Service as the Executive Director of the Royal Botanic Gardens and Domain. regulation means a regulation made under this Act. Trust means the Royal Botanic Gardens and Domain Trust constituted by section 5. Trust lands means the land described in Parts 1, 2 and 3 of Schedule 2, any land for the time being included in Part 5 of that Schedule and any other land acquired by the Trust. trustee means a trustee referred to in section 6. Note. The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) In this Act— (a) a reference to the land described in Part 1 or 2 of Schedule 2 does not include a reference to so much of that land as is described in Part 4 of that Schedule or any land for the time being included in Part 5 of that Schedule, and (b) a reference to a Deposited Plan is a reference to a plan filed in the Land Titles Office as a deposited plan. (3) Notes included in this Act do not form part of this Act. Part 2 The Royal Botanic Gardens and Domain Trust 5 Constitution of Trust (1) There is hereby constituted a corporation with the corporate name "Royal Botanic Gardens and Domain Trust". (2) The Trust shall have and may exercise and perform the powers, authorities, duties and functions conferred or imposed on it by or under this or any other Act. (3) In the exercise and performance of its powers, authorities, duties and functions the Trust shall be subject to the control and direction of the Minister. (4) The Trust shall, for the purposes of any Act, be deemed to be a statutory body representing the Crown. 6 Appointment and procedure (1) The Trust shall consist of 7 trustees, who shall be appointed by the Governor on the recommendation of the Minister. (2) Schedule 1 has effect. 7 Principal objects of Trust (1) The principal objects of the Trust are— (a) to maintain and improve the Trust lands, the National Herbarium and the collections of living and preserved plant life owned by the Trust, (b) to increase and disseminate knowledge with respect to the plant life of Australia, and of New South Wales in particular, and (c) to encourage the use and enjoyment of the Trust lands by the public by promoting and increasing the educational, historical, cultural and recreational value of those lands. (2) When acting in pursuance of its objects, the Trust shall give particular emphasis to encouraging and advancing the study of systematic botany, and to plant conservation. 8 Powers of Trust (1) The Trust may— (a) permit the use of the whole or any part of the Trust lands for activities of a scientific, educational, historical, cultural or recreational nature, (b) in or in connection with the Trust lands provide, or permit the provision of, food or other refreshments and apply for, hold or dispose of any licence, permit or other authority in connection therewith, (c) in pursuance of its objects, procure specimens and obtain scientific data from within or outside the State, (d) maintain, or make arrangements for the maintenance of, the property of the Trust, (e) in pursuance of its objects, carry out surveys, assemble collections and engage in scientific research, including research outside the State, with respect to botany and ornamental horticulture, (f) disseminate scientific information to the public and educational and scientific institutions, whether within or outside the State, (g) promote and provide exhibits, lectures, films, publications and other types of educational instruction relating to botany and ornamental horticulture, (h) subject to the regulations, charge and receive fees or other amounts for, or in connection with, any service provided, article sold or permission given by the Trust in its exercise of any of the powers granted to it by this section, which fees or other amounts shall be the property of the Trust, and (i) enter into any contract or arrangement with any person for the purpose of promoting the objects of the Trust. (2) Subject to this Act and the regulations, the Trust shall have the control and management of all property vested in the Trust. (3) The Trust may agree to any condition that is not inconsistent with its objects being imposed on its acquisition of any property. (4) Where, by gift inter vivos, devise or bequest, the Trust acquires property, it may retain the property in the form in which it is acquired, subject to any condition agreed to by the Trust under subsection (3) in relation to the property. (5) The rule of law against remoteness of vesting does not apply to a condition to which the Trust has agreed under subsection (3). (6) The Stamp Duties Act 1920 does not apply to or in respect of any gift inter vivos, devise or bequest made or to be made to the Trust. (7) The Trust may establish such committees as it thinks fit for the purpose of assisting it to exercise and perform its powers, authorities, duties and functions. (8) A person may be appointed to a committee whether or not the person is a trustee. (9) The Trust may establish, control and manage branches or departments with respect to the Trust lands, or any part thereof. (10) The Trust shall have, and may exercise and perform, such powers, authorities, duties and functions, in addition to those specified in this section, as are reasonably necessary for the attainment of its objects, but may borrow money only in accordance with Part 4. (11) (Repealed) 9 Disposal of certain land prohibited The Trust must not sell, mortgage or otherwise dispose of any part of the Trust lands described in Schedule 2, but may deal with any part of them in accordance with section 20. 10 Dealings with certain property (1) In this section, condition means a condition to which the Trust has agreed under section 8 (3). (2) Subsection (3) does not apply to the Trust lands described in Schedule 2. (3) Subject to subsection (4), the Trust shall not sell, mortgage, demise or otherwise dispose of any property acquired by gift inter vivos, devise or bequest, or any real property otherwise acquired, except— (a) where the property was acquired without any condition—with the approval of the Governor (which may be given in respect of any case or class of cases), or (b) where the property was acquired subject to a condition—in accordance with the condition or section 11. (4) Subject to section 8 (4), and except to the extent that it would be in breach of a condition, the Trust shall invest any of its funds not immediately required for the purposes of the Trust in any manner authorised by law for the investment of trust funds. 11 Disposal of certain property (1) Subject to subsection (2), where the Trust resolves that any property that has been acquired by the Trust subject to a condition to which the Trust has agreed under section 8 (3) is not required for the purposes of the Trust, the Trust may— (a) sell the property and retain the proceeds of the sale as property of the Trust, (b) exchange the property for other property, (c) give the property to an educational or scientific institution, or (d) if the Trust is of the opinion that the property is of no commercial value—dispose of the property without valuable consideration, notwithstanding the condition subject to which the property was acquired. (2) The Trust shall not sell, exchange, give or dispose of any property under subsection (1) except with the consent of the Governor and in accordance with any condition the Governor may impose upon the grant of consent. (3) The Governor may consent to the sale, exchange, gift or disposal of property for the purposes of this section and may impose any condition the Governor thinks fit upon the grant of consent. Part 3 Administration 12 Staff Persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable the Trust to exercise its functions. Note. Section 59 of the Government Sector Employment Act 2013 provides that the persons so employed (or whose services the Trust makes use of) may be referred to as officers or employees, or members of staff, of the Trust. Section 47A of the Constitution Act 1902 precludes the Trust from employing staff. 13 Executive Director (1) The Executive Director is responsible for the administration and management of the Trust lands and any services provided in conjunction therewith. (2) The Executive Director is, in the exercise and performance of the Executive Director's powers, authorities, duties and functions under this Act, subject to the control and direction of the Trust. (3) The Executive Director may also be referred to as the Chief Executive of the Royal Botanic Gardens and Domain. 14 Delegation by Trust (1) The Trust may, by instrument in writing, delegate to a trustee or to an authorised person the exercise or performance of such of its powers (other than this power of delegation), authorities, duties or functions as are specified in the instrument of delegation and may, by a like instrument, revoke wholly or partly any such delegation. (2) A delegation under this section may be made subject to such conditions or such limitations as to the exercise or performance of any of the powers, authorities, duties or functions delegated, or as to time or circumstances, as are specified in the instrument of delegation. (3) A power, authority, duty or function the exercise or performance of which has been delegated under this section may, while the delegation remains unrevoked, be exercised or performed from time to time in accordance with the terms of the delegation. (4) Notwithstanding any delegation under this section, the Trust may continue to exercise or perform all or any of the powers, authorities, duties or functions delegated. (5) Any act or thing done or suffered by a delegate under this section has the same force and effect as if the act or thing had been done or suffered by the Trust and shall be deemed to have been done or suffered by the Trust. (6) In this section, authorised person means the Executive Director or any other member of staff of the Trust. Part 4 Finance 15 Endowment (1) For the purpose of providing a statutory fund to be applied by the Trust towards— (a) the purchase and acquisition of specimens, (b) the remuneration, if any, to be paid under clause 5 of Schedule 1 to trustees and members of committees established under section 8 who are not trustees, and (c) subject to subsection (2), other expenditure incurred by the Trust, there shall be paid by the Treasurer to the Trust an annual endowment of such amount as Parliament approves. (2) The statutory fund referred to in subsection (1) may not be applied towards— (a) the remuneration of any member of staff of the Trust, or (b) general operating expenses, including those related to the maintenance of the Trust lands or other property of the Trust. (3) The annual endowment referred to in subsection (1) shall be paid by such instalments as the Treasurer thinks fit. (4) Any money payable by the Treasurer under this section shall be paid out of money provided by Parliament. 16 (Repealed) 17 Financial year (1)–(7) (Repealed) (8) The financial year of the Trust shall be the year commencing on 1st July. 18 (Repealed) Part 5 Miscellaneous 19 Vesting of certain land in Trust (1) The land described in Parts 1, 2 and 3 of Schedule 2 shall vest in the Trust for an estate in fee simple. (1A) Land described in Part 1, 2 or 3 of Schedule 2 is freed and discharged from any trusts, obligations, estates, interests, charges and rates which existed in respect of the land immediately before a description of the land was first inserted in that Schedule. (1B) The Governor may, by proclamation published on the NSW legislation website, amend Schedule 2 for the purpose of adding— (a) Crown land, within the meaning of the Crown Land Management Act 2016, or other land of the Crown, or (b) Trust lands which are not described in Part 1, 2 or 3 of that Schedule, to the land for the time being described in Part 1, 2 or 3 of that Schedule. (1C) A proclamation that adds any of the land described in Part 5 of Schedule 2 to Part 1 or 2 of that Schedule also has the effect of excluding the land from Part 5 of that Schedule. (2) Notwithstanding anything contained in any other Act, the land described in Parts 1, 2 and 3 of Schedule 2 shall not be appropriated or resumed except by an Act of Parliament. (3) Nothing in this section affects the operation of— (a) section 12B of the Government Railways Act 1912, with respect to the land described in Part 1 or 2 of Schedule 2, or (b) clause 3 (2) (e) of Schedule 3, with respect to a deed of lease in force immediately before the commencement of this section that relates to any part of that land. (4) Notwithstanding subsection (1A), the land described in items 1 and 2 of Part 3 of Schedule 2 shall vest in the Trust subject to the same reservations and conditions as those contained in the Crown Grant of Portion 68 of the Parish of Irvine in the County of Cook dated 25 February 1836. (5) Notwithstanding subsection (1A), land (in this subsection referred to as proclaimed land) added to the land described in Part 1, 2 or 3 of Schedule 2 by a proclamation published under subsection (1B) shall vest in the Trust subject to such trusts, obligations, estates, interests, charges and rates, if any, as are declared in the proclamation to be applicable to or in respect of the proclaimed land. (6) Subsection (1A) does not affect any condition agreed to by the Trust under section 8 (3) in relation to any land to which subsection (1A) applies. 19A Facilitation of Sydney Metro West (1) Despite section 19(2), the substratum of the Trust lands, or a part of the substratum of the Trust lands, may be acquired by Sydney Metro for underground rail facilities in relation to the Sydney Metro West. (2) In this section— underground rail facilities has the same meaning as in the Transport Administration Act 1988, Schedule 6B. 20 Grant of leases, licences and easements (1) In this section, easement includes an easement without a dominant tenement referred to in section 88A of the Conveyancing Act 1919. (2) The Trust may grant— (a) a lease of any part of the Trust lands for a commercial purpose (such as a restaurant), or any other purpose, that would directly or indirectly assist in attaining the objects of the Trust, and (b) easements through, upon or in the Trust lands described in Schedule 2— (i) for the construction of pipelines, the laying or re-laying of cables or the construction of any apparatus to be used in connection with those pipelines or cables, (ii) for the purpose of providing access to the dwelling situated on or within those lands or to other places situated within or adjacent to those lands, or (iii) for any other purpose it considers necessary and that would directly or indirectly assist in the attainment of its objects, and (c) licences authorising entry upon the Trust lands described in Schedule 2 for the purpose of the maintenance, re-laying or repair of any pipelines or cables or the maintenance or repair of any apparatus used in connection therewith, being pipelines, cables or apparatus situated on or in those lands at the commencement of this section, or for any other purpose that would directly or indirectly assist in the attainment of its objects. (3) A lease granted pursuant to subsection (2) (a) may not have a term that, together with the term of any further lease which may be granted pursuant to an option contained in the lease, exceeds 50 years. (3A) Also, a lease under subsection (2)(a) or a licence under subsection (2)(c) may not be granted for a term of more than 5 years unless the Minister has consented to the lease or licence. (4) Sections 88A and 181A of the Conveyancing Act 1919 apply to and in respect of an instrument purporting to grant an easement under subsection (2). 20AA Open tender process to be used for leases and certain licences The Trust must not grant a lease, or a licence with a term of 10 years or more, over any part of the Trust lands unless the granting of the lease or licence has been the subject of an open tender process. Note— See also section 20A(5)–(8) which requires the Trust to give public notice of any proposed lease of Trust lands. 20AB Leases and licences with term of 35 years or more (1) The Trust must not grant a lease or licence with a term of 35 years or more over Trust lands unless the requirements of this section are met. (2) The Trust must prepare a draft written statement (a draft statement of reasons) that sets out how the proposed lease or licence is consistent with the objects of the Trust set out in section 7. (3) The Trust must— (a) make the draft statement of reasons publicly available for a period of at least 7 days, and (b) ensure the draft statement of reasons is accompanied by an outline of the following— (i) details of the lessee or licensee and the land the subject of the proposed lease or licence, (ii) the period of the proposed lease or licence, (iii) the uses of the land permitted by the proposed lease or licence, and (c) invite the public to provide comments about the proposed lease or licence within 7 days after the draft statement of reasons is made publicly available. (4) Without limiting subsection (3)(a), the Trust may make the draft statement of reasons publicly available by publishing the statement on— (a) the Trust's website, or (b) a website used by the Department of Planning, Housing and Infrastructure. (5) After considering any comments received under subsection (3)(c), the Trust must finalise the statement of reasons, including by providing in the statement an outline of— (a) the consultation undertaken, and (b) the comments, if any. (6) The Trust must give the statement of reasons to the Minister when seeking the Minister's approval under section 20(3A) for the lease or licence to which the statement relates. 20A Power to grant certain longer-term leases (1) (Repealed) (2) A lease in respect of any of the following parts of the Trust lands may be granted under section 20 (2) for any term that, together with the term of any further lease that may be granted on the exercise of an option contained in the lease, does not exceed 50 years— (a) such part of the Trust lands described in Part 2 of Schedule 2 as was, immediately before the commencement of this section, used for the purposes of, or for purposes connected with, the operation and maintenance of the car parking station known as the Domain Parking Station (including the moving footway leading to that car parking station), (b) such part of the Trust lands described in Part 2 of Schedule 2 as, immediately before the commencement of this section, contained the fuel oil installations constructed by or on behalf of the Commonwealth, together with such other part of those lands as may be necessary for the purposes of, or for purposes connected with, the use of that land, (c) such parts of the Trust lands described in Part 2 of Schedule 2 as were, immediately before the commencement of this section, used to support the land bridge erected, near the Art Gallery of New South Wales, over part of the road link (or the proposed road link) between the Cahill Expressway and Mill Pond Road, Botany, known as the Eastern Distributor, (d) such parts of the Trust lands described in Part 2 of Schedule 2 as were, immediately before the commencement of this section, used for the purposes of, or for purposes connected with, the operation and maintenance of the swimming pool known as the Andrew "Boy" Charlton Pool, together with such other part of those lands as may be necessary for the purposes of, or for purposes connected with, the operation and maintenance of that pool as redeveloped as a result of the competition known as the Andrew "Boy" Charlton Pool Architectural Competition conducted by the Council of the City of Sydney in 1998, (e) such parts of the Trust lands described in Part 2 of Schedule 2 as are the subject of the development consent granted by the Council of the City of Sydney in relation to Development Application No D97-00511 made by City Projects Division of The City of Sydney and dated 1 August 1997 (concerning the redevelopment of the lands known as Cook and Phillip Parks). (3) The Minister is to consult the Treasurer in relation to— (a) the use to which the land referred to in subsection (2) (a) and (b) is to be put under a future lease or licence, and (b) the terms and conditions of any proposed lease, or licence for the use, of that land. (4) The Trust must not, after the commencement of this section— (a) call for expressions of interest in the use, under a future lease or licence, of the land referred to in subsection 2 (a) or (b), or (b) grant a lease, or a licence for the use, of that land, unless the Minister has consulted the Treasurer (as required by subsection (3)) in relation to the proposed use of the land, or the proposed lease or licence, concerned. (5) Further, the Trust must not, after the commencement of this section, grant a lease of any Trust lands unless— (a) it has given public notice of the proposed lease in accordance with subsections (6) and (7), and (b) it has considered any submissions duly made to it under subsection (8), and (c) it has given to the Minister, when seeking the Minister's approval of the terms and conditions of the proposed lease, copies of any submissions objecting to the proposed lease. (6) The Trust must— (a) give public notice of a proposed lease by means of a notice published in a manner determined by the Trust, and (b) exhibit notice of the proposed lease on the Trust lands concerned. (7) A notice of a proposed lease must include the following— (a) information sufficient to identify the Trust lands concerned, (b) the purpose for which the Trust lands will be used under the proposed lease, (c) the term of the proposed lease (including particulars of any options for renewal), (d) the name of the person to whom it is proposed to grant the proposed lease (if known), (e) a statement that submissions in writing concerning the proposed lease may be made to the Trust during the period (which must be at least 28 days) specified in the notice. (8) Any person may make a submission in writing to the Trust during the period specified for the purpose in the notice. (9) It is sufficient compliance with subsection (3) if the Minister— (a) notifies the Treasurer in writing of— (i) any proposed use of the land concerned under a future lease or licence, and (ii) the terms and conditions of any proposed lease, or licence for the use, of that land, and (iii) if copies of any submissions relating to a proposed lease of that land have been given to the Minister under subsection (5) (c)—the substance of those submissions, and (b) takes into consideration any comments received from the Treasurer within 28 days after the notification is given. 20B Power to accept lease or licence relating to certain land The Trust may, with the consent of the Minister, from time to time enter into an agreement as lessee, sub-lessee or licensee in respect of the upper surface, and the airspace above the upper surface, of the land bridge erected, near the Art Gallery of New South Wales, over part of the road link (or the proposed road link) between the Cahill Expressway and Mill Pond Road, Botany, known as the Eastern Distributor. 20C Requirements relating to grant of licence or easement (1) No later than 3 months after the commencement of this section, the Trust must publish on the Internet site maintained by the Trust a statement that— (a) outlines the criteria by which the Trust assesses proposals or requests for grants of licences for the use of, or easements through, on or in, Trust lands, and (b) states that any person may, at any time, make a submission in writing to the Trust in relation to those criteria, and (c) specifies the number of licences and easements granted by the Trust during the immediately preceding financial year, categorised according to their purpose and impact on Trust lands and (additionally, in the case of licences) their duration. (2) The statement must be permanently available on the Internet and a written copy of the statement must be permanently available for inspection by the public at the offices of the Trust during ordinary business hours. (3) The Trust may update the statement as it sees fit, and must update it at least once in every financial year. (4) In updating the statement, the Trust must take into consideration any submissions received. 21 Facilitation of redevelopment of Conservatorium of Music (1) Nothing in this Act prohibits or restricts— (a) the carrying out, on any land for the time being included in Part 5 of Schedule 2, of development (within the meaning of the Environmental Planning and Assessment Act 1979) that may be carried out on that land in accordance with that Act with or without development consent, or (b) the granting by the Trust of a lease, easement or licence of any of that land for any term, or any other approval, to allow any such development to be carried out, or (c) the sale or other disposal by the Trust, or the acquisition from the Trust, of any part of that land that is not included in Part 1 or 2 of that Schedule by a proclamation under section 19. (2) While land is included in Part 5 of Schedule 2, it vests in the Trust for an estate in fee simple freed and discharged from any trusts, obligations, estates, interests, charges and rates that existed in respect of the land before 1 July 1980 (the date of commencement of this Act). (3) Subsection (2) does not affect any estate or interest in land created by section 12B of the Government Railways Act 1912. 22 Regulations (1) In this section, a reference to the Trust lands includes a reference to any part of the Trust lands. (2) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act and, in particular, for or with respect to— (a) the use and enjoyment of the Trust lands, (b) the care, control and management of the Trust lands, (c) the securing of decency and order upon the Trust lands, (d) the removal of trespassers and persons causing annoyance or inconvenience upon the Trust lands, (e) the regulation or prohibition of the taking of intoxicants onto, and the consumption thereof upon, the Trust lands, (f) the taking of animals on to the Trust lands or the permitting or suffering of animals to be on the Trust lands, (g) the regulation or prohibition of parking, camping or residing on the Trust lands, (h) the regulation or prohibition of the use of formed roads or paths within the Trust lands, (i) the regulation or prohibition of private trading upon or in connection with the Trust lands, (j) the reservation of the Trust lands for such separate or exclusive uses as the regulations may prescribe, (k) the use of property or services provided by the Trust, (l) the preservation or protection of, or prevention of damage to, living or preserved plant life on the Trust lands, (m) the protection or removal of all dead timber, logs and stumps on the Trust lands, whether standing or fallen, (n) the preservation, protection or removal of any rocks, soil, sand, stone or other similar substances on or under or comprising part of the Trust lands, (o) the preservation or protection of any animals, birds and other fauna of any nature whatever and whether natural to or introduced into the Trust lands, (p) the determination and payment of fees for— (i) using or entering upon the Trust lands or improvements thereon, or any specified part of the Trust lands or improvements, (ii) filming or photographing for cinema or television, or any similar commercial purpose, within the Trust lands, (iii) using or purchasing any written material that is the property of the Trust, (iv) parking, camping or residing on the Trust lands, and (v) such other matters as the Trust may, from time to time, determine, (q) the meetings of the Trust, (r) the committees of the Trust, and (s) the use of the common seal of the Trust. (3) A provision of a regulation may— (a) apply generally or be limited in its application by reference to specified exceptions or factors, (b) apply differently according to different factors of a specified kind, or (c) authorise any matter or thing to be from time to time determined, applied or regulated by a specified person or body, or may do any combination of those things. (4) A regulation may impose a penalty not exceeding 10 penalty units for any breach of a regulation. 22A Liability of vehicle owner for parking offences (1) If a parking offence occurs in relation to any vehicle, the person who at the time of the commission of the offence was the owner of the vehicle is, by virtue of this section, guilty of an offence against the regulation concerned as if the person were the actual offender guilty of the parking offence, unless— (a) in any case where the offence is dealt with under section 22B, the person satisfies an officer described in the notice served under that section that the vehicle was at the relevant time a stolen vehicle or a vehicle illegally taken or used, or (b) in any case where the offence is dealt with by a court, the court is satisfied that the vehicle was at the relevant time a stolen vehicle or a vehicle illegally taken or used, or (c) the person is exonerated under subsection (2) or (3). (2) An owner of a vehicle is not, by virtue of this section, guilty of an offence if, in any case where the