Crown Land Practice Manual

Crown Land Administration and Registration Practice Manual Published July 2013 Foreword The Crown Land Administration and Registration Practice Manual is a best practice initiative which aims to set in place standards and guidelines for the administration and registration of Crown land in Western Australia. It has been developed in response to requests from our stakeholders for more information on the way Crown land is administered. Western Australia has around 38% of the nation’s Crown lands. 93% of the State is Crown land whether unallocated or subject to reservation, dedication or leasing. These statistics illustrate both the opportunities and the challenges facing government land administration in Western Australia. The manual is intended to promote transparency and good governance in the administration of Crown land and conveyancing and registration of Crown land transactions under the Land Administration Act 1997 and the Transfer of Land Act 1893. In developing this resource, a considerable level of advice, contribution and verification of current practice and procedure by many staff and our friends in Local Government must be acknowledged. Without their valued and experienced input, an authoritative, user friendly and accurate version would not have been possible. This is a dynamic publication and will continue to evolve and improve to reflect changes in legislation and practice and procedure. We welcome your feedback for improvements to the manual.

Disclaimer and Copyright The information contained in this manual is distributed by the Department of Lands (DoL) through the DoL website as a guide or information source only. Various factors beyond the control of DoL can affect the quality or accuracy of the information and products. Whilst every effort has been made to ensure accuracy and completeness, no guarantee is given nor responsibility taken by DoL for errors or omissions in the manual. DoL do not accept any liability for any loss or damage incurred as a result of the use of, or reliance upon the information provided in this manual or incorporated into it by reference. Important: The information in this manual should not be regarded as legal advice. In all matters, users should seek legal advice from an independent legal practitioner. On-Line Note: The DoL web-server provides links to other Internet sites. These external information sources are outside the control of DoL control and it is the responsibility of Internet users to make their own decisions about the accuracy, reliability, suitability, and correctness of information found. This manual and its contents are protected by the Copyright Act 1968, and the copyright in this manual belongs to the State of Western Australia. You may download, display, print and reproduce this material in unaltered form only (retaining this notice) for your personal, non-commercial use and use within your organisation. Apart from any use as permitted under the Copyright Act 1968, all other rights are reserved. No part may be downloaded and/or reproduced if it is to be on-sold or licensed and no person who downloads or reproduces any part is to seek any payment for information so obtained. Requests for further authorisation should be addressed to the Executive Director, Strategy and Reform, PO Box 1143, West Perth WA, 6872. Crown Land Administration & Registration Practice Manual July 2013

TABLE OF CONTENTS Chapter 1

Preliminary and general information

Chapter 2

General administration and registration of Crown interests and tenure changes in Western Australia

Chapter 3

Appeals to Governor

Chapter 4

Reserves

Chapter 5

Roads

Chapter 6

Sales, leases, licences etc of Crown land

Chapter 7

Pastoral leases

Chapter 8

Easements

Chapter 9

Compulsory acquisition of interests in land

Chapter 10

Compensation

Chapter 11

General

Chapter 12

Repeals, transitionals, savings and validation

Chapter 13

Contaminated sites on Crown Land

Glossary

Crown Land Administration & Registration Practice Manual July 2013

CROWN LAND ADMINISTRATION AND REGISTRATION PRACTICE MANUAL

CHAPTER 01 PRELIMINARY AND GENERAL INFORMATION

TABLE OF CONTENTS 1.

PRELIMINARY AND GENERAL INFORMATION

1-1

1.1.

THE SCHEME

1-1

1.2.

THE LEGISLATION AND ITS PURPOSE

1-2

1.3.

A SINGLE REGISTRATION SYSTEM FOR BOTH CROWN AND FREEHOLD LAND

1-3

1.4.

NATIVE TITLE ISSUES

1-4

2.

GENERAL ADMINISTRATION AND REGISTRATION OF CROWN INTERESTS AND TENURE CHANGES IN WESTERN AUSTRALIA

2-1

2.1.

INTRODUCTION

2-1

2.2.

CROWN LAND IN WESTERN AUSTRALIA – POWERS TO LEGISLATE AND TRANSACT

2-2

2.2.1. LANDS ABOVE THE LOW WATER MARK

2-2

2.2.2. SUBMERGED LANDS – THE RIGHTS OF THE STATE TO MAKE LAWS IN RESPECT OF THE “TERRITORIAL SEA”2-3 2.2.3. POWERS TO HOLD AND DEAL IN CROWN LAND

2.3.

2-5

CROWN LAND REGISTRATION – A TORRENS SYSTEM OF LAND REGISTRATION IN CROWN LAND

2.3.1. CONSEQUENTIAL AMENDMENTS TO THE TLA

2-7

2.3.2. ADVANTAGES OF TORRENS SYSTEM

2-7

2.3.3. WHAT IS CROWN LAND?

2-8

2.3.4. IDENTIFYING CROWN LAND

2-8

2.3.5. HOW CROWN LAND WAS BROUGHT UNDER THE TORRENS SYSTEM

2-9

2.3.6. CROWN GRANTS

2-9

2.3.7. CROWN LAND RECORDS

2-14

2.3.8. FOUR DIFFERENT TYPES OF TITLES FOR CROWN LAND

2-15

Crown Land Administration & Registration Practice Manual July 2013

2-6

2.3.9. INTERNAL INTEREST PLANS

2-22

2.3.10. APPROVED DOCUMENT FORMS

2-23

2.3.11. REGISTRATION OF PRE-LAA DOCUMENTS FOR CROWN INTERESTS

2-24

2.3.12. REGISTRATION OF NEW CROWN INTERESTS UNDER THE LAA

2-30

2.3.13. REGISTRATION OF CROWN INTERESTS CREATED BY EXTERNAL AGENCIES UNDER STATE LEGISLATION OTHER THAN THE LAA 2-37 2.3.14. VALIDATION OF QUALIFIED CROWN LAND TITLES

2-38

2.3.15. IDENTIFICATION OF CHAIN OF TITLE

2-43

2.4.

POWERS OF THE MINISTER FOR LANDS

2-46

2.4.1. GENERAL 2-46 2.4.2. DELEGATION OF MINISTER’S POWERS

2-47

2.4.3. CONSTRAINTS ON THE MINISTER’S POWERS

2-48

2.4.4. CROWN LAND DISPOSITION

2-49

2.5.

CONTINUING INTERESTS

2-53

2.5.1. PRE-LAA 2-53 2.5.2. POST-LAA

2.6.

2-54

POSITIVE AND RESTRICTIVE COVENANTS

2-56

2.6.1. GENERAL 2-56 2.6.2. CREATION OF SECTION 15 COVENANTS

2-57

2.6.3. REGISTRATION OF SECTION 15 COVENANTS

2-58

2.7.

MEMORIALS

2-60

2.8.

WARNINGS OF HAZARDS AND OTHER FACTORS THAT AFFECT THE USE OR ENJOYMENT OF LAND

2-61

2.9.

APPROVAL OF THE MINISTER UNDER SECTION 18 OF THE LAA

2-62

2.9.1. GENERAL 2-62 2.9.2. WHAT IS AN INTEREST IN CROWN LAND?

2-63

2.9.3. WHAT CONSTITUTES PRIOR WRITTEN APPROVAL?

2-64

2.9.4. CHECKLIST OF MATTERS THAT SHOULD BE CONSIDERED WHEN A REQUEST IS MADE FOR APPROVAL UNDER THE LAA 2-66

2.10.

CAVEATS LODGED OVER CROWN LAND

2-67

2.10.1. GENERAL 2-67 2.10.2. WHAT IS A CAVEAT?

2-68

2.10.3. WHO IS THE REGISTERED PROPRIETOR FOR CAVEATS OVER CROWN LAND?

2-69

2.10.4. NATURE OF A CAVEATOR’S CLAIM

2-71

2.10.5. INTERESTS IN CROWN LAND CAPABLE OF SUPPORTING A CAVEAT

2-71

Crown Land Administration & Registration Practice Manual July 2013

2.10.6. CAVEATS CAN BE LODGED UNDER SECTION 20(2) OF THE LAA

2-72

2.10.7. WHAT CONSTITUTES AN “INTEREST” FOR THE PURPOSES OF SECTION 20 OF THE LAA?

2-73

2.10.8. ROLE OF DOL IN GRANTING APPROVAL TO EVIDENCE SUPPORTING CAVEATS

2-73

2.10.9. REGISTRATION REQUIREMENTS OF CAVEATS OVER CROWN LAND

2-73

2.10.10.

FORMS TO BE USED

2-73

2.10.11.

REMOVAL OF CAVEATS

2-74

2.10.12.

CAVEATS LODGED BY THE MINISTER FOR LANDS UNDER SECTION 21 OF THE LAA

2-74

2.11.

FORFEITURE OF INTERESTS IN CROWN LAND

2-75

2.11.1. GENERAL 2-75 2.11.2. TRANSITIONAL PROVISIONS – LICENCES GRANTED UNDER THE LAND ACT 1933

2-76

2.11.3. FORFEITURE PROCESS – GIVING OF NOTICE

2-77

2.11.4. APPEAL PROCESS

2-79

2.11.5. CONSEQUENCES OF MAKING A FORFEITURE ORDER

2-79

2.11.6. AFTER FORFEITURE

2-80

2.12.

APPLICATION FOR APPROVAL TO COMMENCE DEVELOPMENT ON CROWN LAND (MRS FORM 1)

2-81

2.13.

APPLICATION FOR PLANNING APPROVAL UNDER A TOWN PLANNING SCHEME

2-82

3.

APPEALS TO GOVERNOR

3-1

3.1.

INTRODUCTION

3-1

3.2.

APPEAL PROCESS

3-2

3.2.1. WHERE IT IS PROPOSED TO RECOMMEND A DISMISSAL OF THE APPEAL

3-2

3.2.2. WHERE APPEALS ARE UPHELD BY THE GOVERNOR

3-3

3.2.3. EFFECT OF A FORFEITURE ORDER

3-3

3.3.

FORFEITURE PROVISIONS UNDER SECTION 35

3-4

3.4.

DIFFERENT NOTICE PERIODS FOR APPEALS

3-4

3.4.1. SECTION 35

3-4

3.4.2. SECTION 133

3-4

3.4.3. SECTION 145

3-4

3.4.4. SECTION 190

3-5

3.4.5. SECTION 272

3-5

3.5.

CALCULATION OF NOTICE PERIOD FOR APPEALS

3-6

4.

RESERVES

4-1

4.1.

INTRODUCTION

4-1

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Crown Land Administration & Registration Practice Manual July 2013

4.1.1. WHAT IS A RESERVE?

4.2.

4-1

CREATION OF RESERVES

4-2

4.2.1. UNDER THE LAA

4-2

4.2.2. UNDER THE PLANNING AND DEVELOPMENT ACT 2005

4-3

4.2.3. UNDER THE CONSERVATION AND LAND MANAGEMENT ACT 1984

4-4

4.2.4. UNDER OTHER WRITTEN LAW

4-4

4.3.

RESERVES

4-6

4.3.1. INTRODUCTION

4-6

4.3.2. AMENDMENT OF RESERVES

4-6

4.3.3. CANCELLATION OR CHANGE OF PURPOSE OF RESERVES

4-6

4.4.

MANAGEMENT OF RESERVES

4-8

4.5.

MANAGEMENT ORDERS

4-9

4.5.1. WHAT IS A MANAGEMENT ORDER?

4-9

4.5.2. WHO CAN BE A MANAGEMENT BODY?

4-9

4.5.3. WHAT POWERS DOES A MANAGEMENT BODY HAVE TO DEAL WITH LAND?

4-10

4.5.4. PRINCIPLES CONSIDERED BY DOL WHEN ISSUING MANAGEMENT ORDERS UNDER THE LAA

4-11

4.5.5. REVOCATION OF A MANAGEMENT ORDER

4-11

4.6.

RESERVE CLASSIFICATIONS

4-12

4.6.1. CLASS A RESERVES

4-12

4.6.2. CLASS B RESERVES

4-14

4.6.3. CLASS C RESERVES

4-14

4.7.

TYPES OF RESERVES

4-15

4.7.1. MALL RESERVES

4-15

4.7.2. DEPARTMENT OF ENVIRONMENT AND CONSERVATION (DEC) RESERVES

4-19

SECTION 152 RESERVES

4-21

4.8.

MANAGEMENT PLANS

4-26

4.9.

RESERVE ACTIONS (DEALINGS/TRANSACTIONS ON RESERVES)

4-28

4.9.1. EASEMENTS OVER CLASS A RESERVES

4-29

4.9.2. TRANSACTIONS OVER RESERVES

4-30

5.

ROADS

5-1

5.1.

INTRODUCTION

5-1

5.2.

ROADS

5-2

5.3.

PRIVATE ROADS

5-4

Crown Land Administration & Registration Practice Manual July 2013

5.4.

PEDESTRIAN ACCESSWAYS AND RIGHTS OF WAY

5-5

5.5.

CROWN RIGHTS OF WAY

5-6

5.6.

PROTECTED ROADS

5-7

5.6.1. DEFINITION AND BACKGROUND OF PROTECTED ROADS

5-7

5.6.2. EXCISIONS FROM STATE FORESTS

5-8

5.7.

DEDICATION OF ROADS

5-9

5.7.1. GENERAL 5-9 5.7.2. EXCEPTIONS TO UNALLOCATED CROWN LAND REQUIREMENT

5-10

5.7.3. DIFFERENT WAYS TO DEDICATE A ROAD

5-11

5.8.

CLOSURE OF PRIVATE ROADS

5-19

5.8.1. CLOSURE OF A PRIVATE ROAD AT THE REQUEST OF LOCAL GOVERNMENT

5-20

5.8.2. CLOSURE OF PAWS AND ROWS VESTED UNDER SECTION 152 OF THE PLANNING AND DEVELOPMENT ACT 2005 5-24

5.9.

CLOSURE OF PUBLIC ROADS

5-32

5.9.1. PRINCIPLES TO BE CONSIDERED BY DOL IN ROAD CLOSURES

5-32

5.9.2. POLICY PROCEDURES TO BE CONSIDERED BY DOL IN ROAD CLOSURES AND DISPOSALS

5-33

5.10.

MALL RESERVES

5-36

5.10.1. BACKGROUND INFORMATION AND PRINCIPLES FOR CREATION OF A MALL RESERVE

5-36

5.10.2. CANCELLATION OF A MALL RESERVE

5-36

5.11.

PUBLIC ACCESS ROUTES

5-37

5.11.1. BACKGROUND INFORMATION

5-37

5.11.2. WHAT IS A PUBLIC ACCESS ROUTE (PAR)?

5-37

5.11.3. HOW TO CREATE A PUBLIC ACCESS ROUTE?

5-38

5.11.4. ALTERNATIVE TO PARS – PUBLIC ACCESS EASEMENTS

5-41

5.12.

REGISTRATION DOCUMENTS AND PROCESS

5-42

6.

SALES, LEASES, LICENCES, ETC. OF CROWN LAND

6-1

6.1.

INTRODUCTION

6-1

6.2.

WHO CAN SELL AND LEASE CROWN LAND

6-2

6.2.1. GENERAL 6-2 6.2.2. WHAT IS THE LAND DEVELOPMENT FUNCTION?

6-2

6.2.3. LANDCORP’S ROLE

6-3

6.2.4. DOL’S CONTINUING ROLE IN THE CROWN ESTATE

6-3

6.2.5. LEASES OVER CROWN LAND

6-3

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Crown Land Administration & Registration Practice Manual July 2013

6.2.6. LAND ASSEMBLY REQUIREMENTS

6-3

6.2.7. ADMINISTRATIVE SUBDIVISIONS OF CROWN LAND

6-4

6.3.

SALE OF FEE SIMPLE INTERESTS IN CROWN LAND

6-5

6.3.1. GENERAL 6-5 6.3.2. MINISTER’S DISCRETIONARY POWERS

6-5

6.3.3. METHODS FOR THE SALE OF CROWN LAND

6-6

6.3.4. CONVEYANCING PROCESS AND SETTLEMENT PROCEDURE

6.4.

6-11

SALE AND AMALGAMATION

6-12

6.4.1. GENERAL 6-12 6.4.2. EXERCISE OF THIS POWER

6-12

6.4.3. EFFECT OF ENCUMBRANCES AND OTHER INTERESTS

6-12

6.5.

LEASE OF CROWN LAND

6-13

6.5.1. BACKGROUND – CROWN LEASES GRANTED UNDER THE LAND ACT 1933

6-13

6.5.2. CROWN LEASES ISSUED PRE-LAA

6-14

6.5.3. CROWN LEASES ISSUED POST-LAA

6-16

6.5.4. EFFECT OF MINING TENEMENTS OVERLAPPING LEASES AND EASEMENTS

6-16

6.6.

LEASES ISSUED OVER CROWN LAND

6-17

6.6.1. GENERAL 6-17 6.6.2. CONDITIONAL PURCHASE LEASES

6-18

6.6.3. GENERAL LEASES

6-20

6.6.4. CROWN LEASES OF UNMANAGED RESERVES

6-20

6.6.5. PASTORAL LEASES

6-21

6.6.6. LEASING OF CROWN LAND FOR TELECOMMUNICATIONS PURPOSES

6-21

6.6.7. LEASING FOR AQUACULTURE

6-22

6.6.8. LEASES OVER TENURES

6-23

6.6.9. STAMP DUTY IMPLICATIONS FOR LEASES OF CROWN LAND

6-24

6.6.10. LEASING UNDER RATIFIED STATE AGREEMENT ACTS

6-24

6.7.

CONVERSION OF STATE/CROWN LEASES INTO THE FREEHOLD

6-25

6.7.1. GENERAL 6-25 6.7.2. CONVEYANCING PROCESS

6.8.

6-25

LICENCES AND PROFITS Á PRENDRE GRANTED OVER CROWN LAND

6-26

6.8.1. LICENCES OVER CROWN LAND

6-26

6.8.2. PROFITS Á PRENDRE

6-26

Crown Land Administration & Registration Practice Manual July 2013

6.9.

EFFECT OF IMPROVEMENTS ON TERMINATION OF LEASE OR LICENCE

6-27

6.9.1. GENERAL 6-27

6.10.

GENERAL DISPOSITIONS PROVISIONS

6-28

6.10.1. INTRODUCTION

6-28

6.10.2. REVESTMENTS

6-28

6.10.3. GRANTS TO ABORIGINAL PERSONS OF THE LAA

6-28

6.10.4. SUPERLOTS

6-29

6.10.5. DISPOSITIONS TO THE COMMONWEALTH, STATE GOVERNMENT AGENCIES, OR LOCAL GOVERNMENT 6-29 6.10.6. OPTIONS 6-29

7.

PASTORAL LEASES

7-1

7.1.

INTRODUCTION

7-1

7.2.

GRANTING A PASTORAL LEASE

7-2

7.2.1. GRANTING OF A PASTORAL LEASE OVER UNALLOCATED CROWN LAND NOT PREVIOUSLY HELD AS A PASTORAL LEASE WHERE NO INFRASTRUCTURE EXISTS 7-3 7.2.2. GRANTING OF A PASTORAL LEASE OVER UCL PREVIOUSLY HELD AS A PASTORAL LEASE WHERE SOME INFRASTRUCTURE MAY EXIST

7-4

7.2.3. PUBLIC OFFERS OF PASTORAL LEASES

7-4

7.3.

CONDITIONS OF A PASTORAL LEASE

7-5

7.3.1. TERM OF A PASTORAL LEASE

7-5

7.3.2. PURPOSE OF A PASTORAL LEASE

7-5

7.3.3. DEVELOPMENT AND MAINTENANCE OF IMPROVEMENTS

7-5

7.3.4. MANAGEMENT OF A PASTORAL LEASE

7-5

7.3.5. STOCKING OF A PASTORAL LEASE

7-6

7.3.6. SOIL CONSERVATION

7-7

7.3.7. DECLARED PLANTS AND ANIMALS

7-7

7.3.8. ANNUAL RETURNS

7-7

7.3.9. PAYMENT OF RENT

7-7

7.3.10. RESERVATION IN FAVOUR OF ABORIGINAL PERSONS

7-7

7.4.

PERMITS

7-8

7.4.1. TYPES OF PERMITS

7-8

7.4.2. STATUTORY REQUIREMENTS

7-9

7.4.3. APPLICATION PROCESS

7-9

7.5.

ASSESSMENT OF RENT

7-10

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Crown Land Administration & Registration Practice Manual July 2013

7.5.1. 5 YEARLY RENT REVIEWS

7-10

7.5.2. OBJECTIONS AND REVIEWS

7-10

7.5.3. VARIATION OF RENT IF A PERMIT IS ISSUED

7-10

7.6.

INSPECTION OF PASTORAL LEASES

7-11

7.7.

DEFAULTS AND FORFEITURE

7-12

7.7.1. ISSUING OF A DEFAULT NOTICE

7-12

7.7.2. PROSECUTION FOR FAILURE TO COMPLY WITH A DEFAULT NOTICE

7-12

7.7.3. ISSUING A FORFEITURE NOTICE

7-13

7.8.

ABANDONMENT OF A PASTORAL LEASE

7.8.1. CONTROL AND MANAGEMENT

7-14 7-14

7.8.2. APPEALS 7-14 7.8.3. COSTS INCURRED BY BOARD CONTROL

7.9.

7-14

SALES AND TRANSFERS

7-15

7.9.1. APPROVAL TO SELL

7-15

7.9.2. APPROVAL TO TRANSFER

7-15

7.9.3. RESTRICTION ON TRANSFER OF SHARES IN COMPANIES

7-16

7.9.4. MAXIMUM AREA

7-16

7.9.5. FOREIGN OWNERSHIP

7-17

7.10.

MORTGAGES OVER PASTORAL LEASES

7-18

7.11.

SUBDIVISION OF A PASTORAL LEASE

7-19

7.11.1. BACKGROUND

7-19

7.11.2. PROCESS 7-20

7.12.

AMALGAMATION OF PASTORAL LEASES

7-21

7.12.1. AMALGAMATION OF ENTIRE LEASES

7-21

7.12.2. AMALGAMATION OF PART LEASES

7-22

7.13.

ADJUSTMENT OF BOUNDARIES

7-23

7.14.

PASTORAL BUSINESS UNITS

7-24

7.15.

RENEWAL OF PASTORAL LEASES

7-25

7.15.1. RENEWAL OF PASTORAL LEASES ISSUED UNDER THE LAND ACT 1933

7-25

7.15.2. RENEWAL OF PASTORAL LEASES ISSUED UNDER THE LAND ADMINISTRATION ACT 1997

7-26

7.15.3. COMPENSATION FOR IMPROVEMENTS ON EXPIRY OF PASTORAL LEASES

7-26

7.16.

SHARED WATERS ON PASTORAL LEASES

7.16.1. CREATION OF AN EASEMENT

7.17.

DIVIDING FENCES

Crown Land Administration & Registration Practice Manual July 2013

7-27 7-28

7-29

7.18.

PUBLIC ACCESS ON PASTORAL LEASES

7-30

8.

EASEMENTS

8-1

8.1.

INTRODUCTION

8-1

8.2.

WHAT IS AN EASEMENT?

8-2

8.3.

TYPES OF EASEMENTS

8-3

8.3.1. EASEMENTS OVER CROWN LAND

8-3

8.3.2. EASEMENTS GRANTED UNDER THE LAND ACT 1933

8-5

8.3.3. PUBLIC ACCESS EASEMENTS

8-6

8.3.4. EASEMENTS GRANTED UNDER OTHER ACTS

8-6

8.3.5. SERVICE EASEMENTS OVER ROADS

8-11

8.4.

HOW TO CREATE EASEMENTS OVER CROWN LAND

8-12

8.4.1. GENERAL 8-12 8.4.2. EASEMENTS OVER LAND BEING SOLD IN FEE SIMPLE.

8-14

8.4.3. EASEMENTS OVER CLASS A RESERVES

8-15

8.4.4. FINITE TERM EASEMENTS

8-16

8.4.5. PRICING OF EASEMENTS

8-17

8.4.6. ANNUAL RENT EASEMENTS

8-17

8.5.

REMOVAL OF CROWN EASEMENTS

8-18

8.5.1. BY SURRENDER

8-18

8.5.2. BY MINISTERIAL ORDER

8-19

8.5.3. BY MERGER

8-20

8.5.4. BY TAKING ORDER

8-20

8.5.5. BY ORDER OF THE REGISTRAR OF TITLES

8-20

9.

COMPULSORY ACQUISITION OF INTERESTS IN LAND

9-1

9.1.

INTRODUCTION

9-1

9.1.1. GENERAL 9-1 9.1.2. SINGLE REGISTRATION SYSTEM

9-3

9.1.3. WHO MAY TAKE LAND AND INTERESTS IN LAND?

9-3

9.1.4. HOW MAY LAND AND INTERESTS IN LAND BE TAKEN?

9-4

9.1.5. WHAT COMPRISES LAND AND INTERESTS IN LAND FOR THE PURPOSE OF A TAKING?

9-4

9.2.

NATIVE TITLE ISSUES

9-8

9.2.1. GENERAL 9-8

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Crown Land Administration & Registration Practice Manual July 2013

9.2.2. FUTURE ACTS REGIME

9.3.

9-8

DELEGATIONS

9-9

9.3.1. GENERAL 9-9

9.4.

ACQUISITION BY AGREEMENT

9-10

9.4.1. GENERAL 9-10 9.4.2. CONSIDERATIONS TO BE MADE BEFORE ACQUIRING LAND

9-11

9.4.3. SECTION 168 STATEMENT OF PROCEDURES

9-11

9.4.4. CHECKLIST OF MATTERS BEFORE INSTRUCTING DOL TO ACQUIRE LAND

9-12

9.4.5. SURVEY REQUIREMENTS FOR ACQUIRING LAND BY AGREEMENT

9-12

9.5.

TAKING WITHOUT AGREEMENT

9-13

9.5.1. GENERAL 9-13 9.5.2. SECTION 165 ORDER TO CONFER INTERESTS UNDER WRITTEN LAW

9.6.

9-14

NOTICE OF INTENTION TO TAKE

9-15

9.6.1. WHAT IS A NOTICE OF INTENTION TO TAKE?

9-15

9.6.2. EFFECT OF A NOTICE OF INTENTION TO TAKE

9-17

9.6.3. CONTENT AND TYPES OF NOTICES OF INTENTION TO TAKE

9-20

9.6.4. WHEN IS A NOTICE OF INTENTION TO TAKE NOT REQUIRED?

9-21

9.6.5. VARIATION OF NOTICES OF INTENTION TO TAKE

9-21

9.6.6. INCREASED PERIOD OF CURRENCY OF NOTICE OF INTENTION TO TAKE

9-22

9.6.7. CANCELLATION OF NOTICE OF INTENTION TO TAKE

9-22

9.7.

NOTICE OF ENTRY

9-23

9.7.1. GENERAL 9-23 9.7.2. ENTRY FOR FEASIBILITY STUDIES

9-24

9.7.3. ENTRY FOR RAILWAY CONSTRUCTION

9-24

9.7.4. ENTRY FOR INSPECTION OR ASSESSMENT OF COMPENSATION FOR SURVEYS

9-25

9.7.5. ENTRY FOR TEMPORARY OCCUPATION

9-25

9.7.6. ENTRY FOR WORK TO COMMENCE WITHOUT PRIOR TAKING ORDER

9-26

9.8.

TAKING ORDER

9-27

9.8.1. WHAT IS A TAKING ORDER?

9-27

9.8.2. EFFECT OF A TAKING ORDER

9-28

9.8.3. CONTENT AND TYPES OF TAKING ORDER

9-29

9.8.4. CONSISTENCY BETWEEN TAKING ORDER AND NOTICE OF INTENTION TO TAKE

9-29

9.8.5. PROCEDURES FOR LODGING A TAKING ORDER

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Crown Land Administration & Registration Practice Manual July 2013

9.8.6. AMENDMENT OF TAKING ORDER

9-33

9.8.7. ANNULMENT OF TAKING ORDER

9-33

9.9.

DESIGNATION

9-34

9.9.1. WHAT IS A DESIGNATION?

9-34

9.9.2. EFFECT OF A DESIGNATION

9-35

9.9.3. AMENDMENT OF A DESIGNATION

9-35

9.9.4. CANCELLATION OF A DESIGNATION

9-35

9.10.

SELLING ACQUIRED LAND

9-36

9.10.1. GENERAL 9-36 9.10.2. FORMER OWNER’S RIGHTS

9-36

9.10.3. EXCEPTIONS TO THE RULE

9-37

9.10.4. DEALING WITH FORMER OWNERS’ RIGHTS

9-37

9.10.5. SALES OF ACQUIRED LAND

9-39

9.10.6. PROCEEDS OF SALE

9-39

9.11.

LEASING ACQUIRED LAND

9-40

9.11.1. GENERAL 9-40 9.11.2. DESIGNATED LAND

9-40

9.11.3. PROCEDURES

9-40

9.11.4. RENTAL 9-40

9.12.

EASEMENTS

9-43

9.12.1. GENERAL 9-43 9.12.2. PUBLIC ACCESS EASEMENTS

9-44

9.12.3. GRANTS OF EASEMENT

9-45

9.13.

TRANSITIONALS

9-46

10.

COMPENSATION

10-1

10.1.

INTRODUCTION

10-1

10.2.

PERSONS ENTITLED TO COMPENSATION

10-2

10.2.1. GENERAL 10-2 10.2.2. LIMITS TO PAYMENT OF COMPENSATION

10.3.

10-5

REGISTRATION OF TITLE

10-6

10.3.1. THE VESTING OF VARIOUS INTERESTS BY TAKING ORDER

10-6

10.3.2. THE IMPACT OF REGISTRATION PURSUANT TO A VOID TAKING ORDER

10-6

10.4.

THE CLAIM

10-7

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10.4.1. WHO MAY LODGE A CLAIM FOR COMPENSATION?

10-7

10.4.2. TIME LIMIT FOR MAKING A CLAIM FOR COMPENSATION

10-7

10.4.3. THE CLAIM FORM

10-8

10.5.

DEALING WITH THE CLAIM

10-10

10.5.1. OFFERS OF COMPENSATION

10-10

10.5.2. GENERAL SETTLING OF A COMPENSATION CLAIM

10-11

10.6.

THE STATE ADMINISTRATIVE TRIBUNAL

10-13

10.6.1. GENERAL 10-13 10.6.2. CONSTITUTION OF THE TRIBUNAL

10.7.

10-13

ASSESSING COMPENSATION

10-14

10.7.1. GENERAL 10-14 10.7.2. DATE OF ASSESSING COMPENSATION

10-14

10.7.3. EFFECT OF REGISTRATION OF NOTICE OF INTENTION TO TAKE

10-14

10.7.4. OTHER FACTORS TO BE CONSIDERED IN ASSESSING COMPENSATION

10-15

10.8.

PAYMENT OF COMPENSATION

10-16

10.8.1. WHEN SHOULD COMPENSATION BE PAID?

10-16

10.8.2. TO WHOM SHOULD COMPENSATION BE PAID?

10-16

10.8.3. EASEMENTS OR OTHER LANDS AWARDED IN LIEU OF COMPENSATION

10-16

10.8.4. OUT OF WHAT FUNDS SHOULD COMPENSATION BE PAID?

10-16

11.

GENERAL

11-1

11.1.

INTRODUCTION

11-1

11.2.

GENERAL PROTECTION FROM LIABILITY

11-2

11.2.1. GENERAL 11-2 11.2.2. RESPONSIBILITIES OF DOL OFFICERS UNDER THE LAW

11.3.

11-2

ABILITY OF INSOLVENTS, INCAPABLE PERSONS AND DECEASED PERSONS TO HOLD CROWN LAND

11-3

11.3.1. GENERAL 11-3 11.3.2. INSOLVENT PERSONS

11-3

11.3.3. INCAPABLE PERSONS

11-3

11.3.4. DECEASED ESTATES

11-4

11.4.

PROTECTION OF THE CROWN AND MANAGEMENT BODIES FROM LIABILITY

11-5

11.4.1. GENERAL 11-5 11.4.2. RISK MANAGEMENT

11-6

11.4.3. RISK MANAGEMENT ON DOL-MANAGED PROPERTY

11-7

Crown Land Administration & Registration Practice Manual July 2013

11.4.4. RISK MANAGEMENT PROCEDURES

11-7

11.4.5. COMMON LAW DUTY OF CARE

11-11

11.4.6. LIABILITY OF THE CROWN

11-12

11.4.7. LIABILITY OF MANAGEMENT BODIES

11-12

11.4.8. LIABILITY OF THE CROWN AND MANAGEMENT BODIES IN RELATION TO PUBLIC ACCESS ROUTES

11-13

11.4.9. LIABILITY OF THE CROWN AND LOCAL GOVERNMENT IN RELATION TO PUBLIC ACCESS EASEMENTS

11-13

11.5.

APPLICATION OF THE PRESCRIPTION ACT 1832

11-14

11.5.1. WHAT IS THE DOCTRINE OF PRESCRIPTION?

11-14

11.5.2. APPLICABILITY OF THE PRESCRIPTION ACT 1832 TO CROWN LAND

11-14

11.6.

CLOSURE OF RAILWAYS

11-15

11.6.1. GENERAL 11-15

11.7.

OFFENCES ON CROWN LAND

11-16

11.7.1. GENERAL 11-16 11.7.2. TYPES OF OFFENCES

11-16

11.7.3. CAMPING ON CROWN LAND

11-17

11.7.4. VEHICLES ON CROWN LAND

11-17

11.7.5. HARVESTING OF NATURAL FLORA

11-18

11.7.6. TIMBER AND FOREST PRODUCE ON CROWN LAND

11-18

11.7.7. INTERFERING WITH SURVEY MARKS AND SURVEYS

11-19

11.7.8. CONTRAVENTION OF CONDITIONS OF COVENANTS IMPOSED ON CROWN LAND

11-19

11.7.9. PENALTIES FOR OFFENCES ON CROWN LAND

11-19

11.8.

UNAUTHORISED STRUCTURES ON CROWN LAND

11-20

11.8.1. GENERAL 11-20 11.8.2. REMOVAL OF UNAUTHORISED STRUCTURES FROM CROWN LAND

11-21

11.8.3. PROFESSIONAL FISHERPERSONS’ STRUCTURES

11-22

11.8.4. DELEGATION UNDER SECTION 273 OF THE LAA

11-23

11.9.

SERVICE OF DOCUMENTS

11-24

11.9.1. GENERAL 11-24

11.10. REGULATIONS

11-25

11.10.1.

GENERAL

11-25

11.10.2.

FEES REGULATIONS

11-26

11.10.3.

REGULATIONS AFFECTING SURVEYS

11-26

11.10.4.

REGULATIONS ABOUT ADVISORY PANELS

11-26

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11.11. APPROVAL OF FORMS

11-27

11.11.1.

APPROVAL BY DIRECTOR GENERAL DOL

11-27

11.11.2.

APPROVAL OF REGISTRATION FORMS WITH CONSENT OF REGISTRAR OF TITLES

11-27

11.12. REVIEW OF LAA 11.12.1.

GENERAL

11-28 11-28

12.

REPEALS, TRANSITIONALS, SAVINGS AND VALIDATION

12-1

12.1.

GENERAL

12-1

12.2.

SCHEDULE 2 (AS IT RELATES TO THE LAND ACT 1933)

12-2

12.2.1. GENERAL 12-2 12.2.2. EXCEPTIONS TO TRANSITION AND GENERAL APPLICATION OF THE LAA

12-2

12.2.3. INTRODUCTION OF A SINGLE REGISTRATION SYSTEM

12-4

12.3.

SCHEDULE 3 (AS IT RELATES TO PRE-LAND ACT 1933)

12-5

12.3.1. GENERAL 12-5

12.4.

INCOMPLETE DEALINGS UNDER THE LAND ACQUISITION AND PUBLIC WORKS ACT 1902

12-6

12.5.

ROADS ACTIONS COMMENCED UNDER THE LOCAL GOVERNMENT ACT 1960

12-7

13.

CONTAMINATED SITES ON CROWN LAND

13-1

13.1.

INTRODUCTION

13-1

13.2.

CONTAMINATION OF CROWN LAND IDENTIFICATION, REMEDIATION AND MANAGEMENT

13-2

13.3.

CLASSIFICATION AND NOTICES

13-3

13.4.

REMEDIATION OF CONTAMINATED SITES

13-5

13.4.1. EXEMPTIONS

13-5

13.5.

ORPHAN SITES

13-6

13.6.

IDENTIFICATION OF CONTAMINATION ON CROWN LAND

13-7

13.6.1. IDENTIFICATION

13-7

13.6.2. FORMER EXPLOSIVES DEPOT SITE

13-7

13.7.

LIABILITY IN RELATION TO CONTAMINATION ON CROWN LAND

13.7.1. TRANSFERRING LIABILITY

13.8.

RECEIVING LAND INTO THE CROWN ESTATE/DOL CONTROL

Crown Land Administration & Registration Practice Manual July 2013

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13-13

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Preliminary and General Information

Chapter 1

1.

PRELIMINARY AND GENERAL INFORMATION

1.1.

THE SCHEME The Department of Lands (DoL), in consultation with the WA Land Information Authority (LANDGATE) has prepared this manual. In using the manual it must be clearly understood that it is not legal advice and whilst all care has been taken in the preparation of this publication, no responsibility is accepted by DoLfor any errors, omissions or inaccuracies whatsoever. No written process in any manual is static. Changes will necessarily be made regularly as DoL officers continue with their daily work. Despite this, it is hoped that this manual will assist in providing a starting base for most officers and staff in DoL as well as being informative to other Government departments and members of the public. The Land Administration Act 1997 (LAA), as amended, is the main statute governing the administration of Crown land in Western Australia. The manual has been assembled in a way that reflects the Sections, Divisions, and Parts of the LAA. This manual should be read in conjunction with the LAA itself, the Transfer of Land Act 1893 (TLA), the Land Titles Registration Practice Manual and, where applicable, the Survey and Plan Practice Manual. These manuals can be downloaded free of charge from the internet via LANDGATE’s website – Practice Manuals DoL officers should also read this manual with the Quality Management System (“QMS”) database which sets out the processes for each type of Crown land transaction and the relevant policies and legal rulings relating to the respective processes. Chapter 2 of this manual sets out the general registration requirements and procedures for Crown actions under the TLA. In addition, the first part of each chapter in the manual sets out the business processes and administrative requirements of Crown land administration under the LAA. The second part of each chapter will set out the registration requirements as they affect the business processes in each Part of the LAA and will be required to enable conveyances and other dealings in Crown land to be registered under the Torrens system of land registration in order to be effective. Where registration procedures are required, Chapter 2 of this manual together with the relevant chapter affecting the particular Crown action should be read in conjunction with the relevant paragraphs of the Land Titles Registration Practice Manual.

1-1

Crown Land Administration & Registration Practice Manual July 2013

Chapter 1

1.2.

Preliminary and General Information

THE LEGISLATION AND ITS PURPOSE Responsible government was granted to the State of Western Australia in 1890 by section 3 of the Western Australian Constitution Act 1890 (Imp.), 53 & 54 Vict. c.26. By that section, the Crown, in whom was vested the “wastelands” of the colony, granted and vested the entire management and control of the wastelands of the Crown, including the proceeds of the sale, letting and disposal of that land, and all royalties, mines, and minerals, in the legislature of the Western Australian colony. In this context the legal notion of “wastelands” are those lands not granted in freehold title. The exclusive power over Crown lands granted to the Western Australian Parliament represented an end to the Imperial authority granting estates in Crown land in Western Australia. Under this Imperial Constitution Act, the power to grant estates in Crown land became entirely statutory. Over the last 60 years, Crown land administration in Western Australia was governed by the Land Act 1933. The Land Act 1933, its predecessor, the Land Act 1898 and before that, a series of Land Regulations (the last set of Land Regulations before the Land Act 1898 was in 1894), formed the basis of Crown land administration in this State. The manner of dealing with and disposing of Crown land has always been strictly controlled by Parliament and the legislation was, before the proclamation of the LAA, very prescriptive as to the manner for disposing of Crown land and interests in Crown land. The basis for the administration of Crown land and the Crown’s ability to dispose of or deal with Crown land underwent a metamorphosis under the Land Administration Act 1997 (“LAA”) and the Acts Amendment (Land Administration) Act 1997. The prescriptive and outdated manner of disposing of Crown land was modernised and updated to reflect the needs for economic growth. Also, a registration system for Crown land tenure was established under the Torrens system of land registration. The LAA and the Acts Amendment Land Administration Act 1997 were proclaimed on 30 March 1998 and commenced operation on that date. Both these Acts introduced a new era in the administration and processing of Crown land in Western Australia by:



substantially re-writing the existing law on Crown land administration under the Land Act 1933, and



implementing the use of a single registration system under the TLA.

Crown land, under section 3 of the LAA, is defined to mean all land other than freehold land. For the purposes of the LAA, a reference to the freehold of any land is a reference to the fee simple, whether absolute, conditional, or otherwise, of that land. Under the LAA, all transactions relating to interests in Crown land are now registered under the TLA and not gazetted, as was the case in many instances under the Land Act 1933. As a result of the introduction of the LAA and the associated registration system, documents dealing in Crown land forwarded to DoL for the prior consent of the Minister for Lands under section 18 of the LAA must be prepared in an approved format acceptable for registration purposes under the TLA. For further information on the types of documents that must be forwarded to DoL for the Minister’s consent, Chapter 2 of this manual. This manual will give some guidance to a better understanding of the administration of Crown land and the preparation and registration of documents creating, effecting, cancelling or altering interests and other rights in Crown land. The content in this manual will cover operational procedures relating to the granting and assembly of tenure and interests in Crown land as well as registration processes for both existing interests granted pre-LAA and for new interests.

Crown Land Administration & Registration Practice Manual March 2012

1-2

Preliminary and General Information

1.3.

Chapter 1

A SINGLE REGISTRATION SYSTEM FOR BOTH CROWN AND FREEHOLD LAND A major proposal of the LAA was the introduction of a Torrens system of land registration under the TLA and its application to Crown land. This registration system for Crown land mirrors, as closely as possible, the registration system for freehold land. When the LAA commenced operation on 30 March 1998, a single registration system for all land in Western Australia was created. All dealings affecting any land in Western Australia must be lodged and registered with the Registrar of Titles at LANDGATE in order to have that dealing validated and made effective. Any document setting out a transaction for Crown land under the LAA that is not registered, will not “convey” that interest until it is registered or recorded. More detail on the single registration system is set out in Chapter 2 of this manual. Mining tenements and petroleum rights and interests have not been included within this registration system. This has been specifically provided in section 5 of the LAA. The Department of Mineral and Petroleum Resources maintain a separate register of such interests.

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Crown Land Administration & Registration Practice Manual July 2013

Chapter 1

1.4.

Preliminary and General Information

NATIVE TITLE ISSUES When considering any proposal affecting Crown land one should always bear in mind the High Court decision of Mabo v Queensland (No. 2) (Mabo No 2) (1992) 175 CLR 1. This High Court decision dealing with native title over un-alienated Crown lands off Queensland created wide-ranging implications Australia wide which must be considered when dealing with Crown land interests and tenure. The common law concepts of native title expounded by the High Court are laid down in the Native Title Act 1993. This influences the decisions and processes relating to Crown land in this State. However, it is not the purpose to discuss the native title implications of Crown land administration and registration in detail. Certain aspects to native title issues are raised in this manual where relevant.

Crown Land Administration & Registration Practice Manual March 2012

1-4

CROWN LAND ADMINISTRATION AND REGISTRATION PRACTICE MANUAL

CHAPTER 02 GENERAL ADMINISTRATION AND REGISTRATION OF CROWN INTERESTS AND TENURE CHANGES IN WESTERN AUSTRALIA

TABLE OF CONTENTS 2.

GENERAL ADMINISTRATION AND REGISTRATION OF CROWN INTERESTS AND TENURE CHANGES IN WESTERN AUSTRALIA

2-1

2.1.

INTRODUCTION

2-1

2.2.

CROWN LAND IN WESTERN AUSTRALIA – POWERS TO LEGISLATE AND TRANSACT

2-2

2.2.1. LANDS ABOVE THE LOW WATER MARK

2-2

2.2.2. SUBMERGED LANDS – THE RIGHTS OF THE STATE TO MAKE LAWS IN RESPECT OF THE “TERRITORIAL SEA” 2-3 2.2.3. POWERS TO HOLD AND DEAL IN CROWN LAND

2.3.

2-5

CROWN LAND REGISTRATION – A TORRENS SYSTEM OF LAND REGISTRATION IN CROWN LAND

2.3.1. CONSEQUENTIAL AMENDMENTS TO THE TLA

2-7

2.3.2. ADVANTAGES OF TORRENS SYSTEM

2-7

2.3.3. WHAT IS CROWN LAND?

2-8

2.3.4. IDENTIFYING CROWN LAND

2-8

2.3.5. HOW CROWN LAND WAS BROUGHT UNDER THE TORRENS SYSTEM

2-9

2.3.6. CROWN GRANTS

2-9

2.3.7. CROWN LAND RECORDS

2-14

2.3.8. FOUR DIFFERENT TYPES OF TITLES FOR CROWN LAND

2-15

2.3.9. INTERNAL INTEREST PLANS

2-22

2.3.10. APPROVED DOCUMENT FORMS

2-23

2.3.11. REGISTRATION OF PRE-LAA DOCUMENTS FOR CROWN INTERESTS

2-24

Crown Land Administration & Registration Practice Manual July 2013

2-6

Chapter 2

General Administration and Registration of Crown Interests and Tenure Changes in Western Australia

2.3.12. REGISTRATION OF NEW CROWN INTERESTS UNDER THE LAA

2-30

2.3.13. REGISTRATION OF CROWN INTERESTS CREATED BY EXTERNAL AGENCIES UNDER STATE LEGISLATION OTHER THAN THE LAA 2-37 2.3.14. VALIDATION OF QUALIFIED CROWN LAND TITLES

2-38

2.3.15. IDENTIFICATION OF CHAIN OF TITLE

2-43

2.4.

POWERS OF THE MINISTER FOR LANDS

2-46

2.4.1. GENERAL 2-46 2.4.2. DELEGATION OF MINISTER’S POWERS

2-47

2.4.3. CONSTRAINTS ON THE MINISTER’S POWERS

2-48

2.4.4. CROWN LAND DISPOSITION

2-49

2.5.

CONTINUING INTERESTS

2-53

2.5.1. PRE-LAA 2-53 2.5.2. POST-LAA

2.6.

2-54

POSITIVE AND RESTRICTIVE COVENANTS

2-56

2.6.1. GENERAL 2-56 2.6.2. CREATION OF SECTION 15 COVENANTS

2-57

2.6.3. REGISTRATION OF SECTION 15 COVENANTS

2-58

2.7.

MEMORIALS

2-60

2.8.

WARNINGS OF HAZARDS AND OTHER FACTORS THAT AFFECT THE USE OR ENJOYMENT OF LAND

2-61

2.9.

APPROVAL OF THE MINISTER UNDER SECTION 18 OF THE LAA

2-62

2.9.1. GENERAL 2-62 2.9.2. WHAT IS AN INTEREST IN CROWN LAND?

2-63

2.9.3. WHAT CONSTITUTES PRIOR WRITTEN APPROVAL?

2-64

2.9.4. CHECKLIST OF MATTERS THAT SHOULD BE CONSIDERED WHEN A REQUEST IS MADE FOR APPROVAL UNDER THE LAA 2-66

2.10.

CAVEATS LODGED OVER CROWN LAND

2-67

2.10.1. GENERAL 2-67 2.10.2. WHAT IS A CAVEAT?

2-68

2.10.3. WHO IS THE REGISTERED PROPRIETOR FOR CAVEATS OVER CROWN LAND?

2-69

2.10.4. NATURE OF A CAVEATOR’S CLAIM

2-71

2.10.5. INTERESTS IN CROWN LAND CAPABLE OF SUPPORTING A CAVEAT

2-71

2.10.6. CAVEATS CAN BE LODGED UNDER SECTION 20(2) OF THE LAA

2-72

2.10.7. WHAT CONSTITUTES AN “INTEREST” FOR THE PURPOSES OF SECTION 20 OF THE LAA?

2-73

2.10.8. ROLE OF DOL IN GRANTING APPROVAL TO EVIDENCE SUPPORTING CAVEATS

2-73

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General Administration and Registration of Crown Interests

Chapter 2

and Tenure Changes in Western Australia

2.10.9. REGISTRATION REQUIREMENTS OF CAVEATS OVER CROWN LAND

2-73

2.10.10.

FORMS TO BE USED

2-73

2.10.11.

REMOVAL OF CAVEATS

2-74

2.10.12.

CAVEATS LODGED BY THE MINISTER FOR LANDS UNDER SECTION 21 OF THE LAA

2-74

2.11.

FORFEITURE OF INTERESTS IN CROWN LAND

2-75

2.11.1. GENERAL 2-75 2.11.2. TRANSITIONAL PROVISIONS – LICENCES GRANTED UNDER THE LAND ACT 1933

2-76

2.11.3. FORFEITURE PROCESS – GIVING OF NOTICE

2-77

2.11.4. APPEAL PROCESS

2-79

2.11.5. CONSEQUENCES OF MAKING A FORFEITURE ORDER

2-79

2.11.6. AFTER FORFEITURE

2-80

2.12.

APPLICATION FOR APPROVAL TO COMMENCE DEVELOPMENT ON CROWN LAND (MRS FORM 1)

2-81

2.13.

APPLICATION FOR PLANNING APPROVAL UNDER A TOWN PLANNING SCHEME

2-82

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General Administration and Registration of Crown Interests

Chapter 2

and Tenure Changes in Western Australia

2.

GENERAL ADMINISTRATION AND REGISTRATION OF CROWN INTERESTS AND TENURE CHANGES IN WESTERN AUSTRALIA

2.1.

INTRODUCTION This chapter covers Part 2 of the Land Administration Act 1997 (LAA). Part 2 establishes the framework for the single registration system and also sets out the following matters:



the general powers of the Minister for Lands as it relates to the Minister’s body corporate powers to deal in Crown land and certain freehold land;



the powers of the Minister for Lands to initiate and sell land administration expertise to the Commonwealth of Australia, an External Territory and any country outside Australia;



delegation powers of the Minister for Lands;



other administrative powers of the Minister as they relate to the creation of positive and negative covenants over Crown land, and creation of memorials over land;



powers of the Minister to subdivide and develop Crown land;



and other related powers of the Minister for Lands.

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Crown Land Administration & Registration Practice Manual July 2013

Chapter 2

General Administration and Registration of Crown Interests and Tenure Changes in Western Australia

2.2.

CROWN LAND IN WESTERN AUSTRALIA – POWERS TO LEGISLATE AND TRANSACT

2.2.1.

LANDS ABOVE THE LOW WATER MARK Prior to 1889 Imperial legislation applied to the Swan River Colony and Western Australia, with a series of Land Regulations being made in relation to administration of Crown land. Responsibility for the management and control of the “waste lands of the Crown” was committed to the Western Australian Parliament by section 3 of the Western Australia Constitution Act 1889 (Imperial), which provides: “The entire management and control of the waste lands of the Crown in the colony of Western Australia, and of the proceeds of the sale, letting and disposal thereof, including all royalties, mines and minerals, shall be vested in the legislature of that colony”. Pursuant to this provision, legislative authority (from the Western Australian Parliament) is required for all dealings in the waste lands of the Crown. That is to say, Crown land may only be dealt with in accordance with a specific statute, a point affirmed by a 1972 High Court ruling. Section 3 of the Land Act 1898 (which replaced earlier Land Regulations) defined “Crown lands” to mean “the waste lands of the Crown within the Colony, that is to say, lands vested in Her Majesty, and not for the time being reserved for or dedicated to any public purpose of set apart as a city, town, or village, or granted or lawfully contracted to be granted in fee simple or with a right of purchase under this Act or any Act or Regulations hereby repealed, and which are not held under lease or license under the Goldfield Act or Mineral Lands Act, and include all lands between high and low watermark on the sea-shore and on the banks of tidal water”. Similarly, section 3 of the Land Act 1933 defined “Crown lands” to mean “all lands of the Crown vested in Her Majesty, except land which is, for the time being, reserved for or dedicated to any public purpose, or granted or lawfully contracted to be granted in fee simple or with the right of purchase under this Act or any Act hereby repealed, and including all lands between high and low water mark on the seashore and on the banks of tidal waters, and including, for the purposes of section 116 (dealing with leasing), all lands below low water mark on the seashore and on the banks of tidal waters and all lands being the beds of water-courses.” It was clear from the Act that tidal waters below low water mark could not be dealt with under the Act, except in relation to leasing. Section 3 of the LAA defines “Crown land”, in conjunction with the definition of “land”, to mean all land within the State which is not alienated (that is, which has not been disposed of in fee simple or freehold), including coastal waters out to three nautical miles offshore. The LAA is the State’s primary statute for dealing with Crown Land.

Crown Land Administration & Registration Practice Manual July 2013

2-2

General Administration and Registration of Crown Interests

Chapter 2

and Tenure Changes in Western Australia

2.2.2.

SUBMERGED LANDS – THE RIGHTS OF THE STATE TO MAKE LAWS IN RESPECT OF THE “TERRITORIAL SEA” In 1973 the Commonwealth of Australia enacted the Seas and Submerged Lands Act 1973 (SSLA). The SSLA was, and remains, the principal Commonwealth legislation dealing with the sovereignty seaward of the low water mark. The purpose of the SSLA was to declare sovereign rights (although not absolute sovereignty) in the Commonwealth over the continental shelf of Australia for the purpose of exploring and exploiting its material resources. In the 1975 High Court case of NSW v The Commonwealth, the majority held that the territory of the States finished at the low water mark and that the adjacent seas were held by the Crown in right of the Commonwealth. As a consequence of this decision the States had no legislative powers in relation to the offshore areas as part of their territory, and any legislative powers which they had in relation to the offshore area was extra-territorial in nature and dependant upon an appropriate nexus with their territory, so as to found valid legislation under the constitutional power to make laws for “the peace order and good government” of the State. As a result of the States’ concerns over the 1975 High Court decision the Commonwealth and the States negotiated a constitutional settlement embodied in complementary State and Federal legislation in 1980 comprising as Federal legislation the Coastal Waters (State Title) Act 1980 and the Coastal Waters (State Powers) Act 1980, accompanied by consequential amendments to the SSLA and major amendments to the Petroleum Submerged Lands Act 1967 (PSLA). Reciprocal legislation was enacted by the State, and in Western Australia this comprised the Constitutional Powers (Coastal Waters) Act 1979 (CPCWA), which set out the text of the Commonwealth Act and requested the CPCWA’s enactment by the Commonwealth Parliament, pursuant to section 51 (xxxviii) of the Commonwealth Constitution. The effect of the settlement legislation was as follows: (i)

(ii)

it extended the powers of each State under its Constitution to make laws: (a)

in relation to the “coastal waters of the State” as defined, the three nautical mile area which is within the State’s “adjacent area”, including the airspace and seabed and subsoil;

(b)

in relation to the area beyond the coastal waters to the limit of the “adjacent area”, including the airspace and seabed and subsoil, but only in relation to subterranean mining from land within the State and ports and harbours;

(c)

in relation to fishing in Australian waters outside coastal waters, under agreements with Commonwealth; and it

vested each State with all the right and title in relation to the seabed beneath the coastal waters, as would have accrued to the State if that seabed were within the limits of the State, subject to various small reservations;

(iii) did not extend the limits of the States; (iv) did not derogate from the paramountcy of Commonwealth sovereignty or legislative power.

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Chapter 2

General Administration and Registration of Crown Interests and Tenure Changes in Western Australia

The following definitions are important: 

“Coastal waters” are determined by the SSLA definition of the “territorial sea” but are limited to three nautical miles offshore, so that the Commonwealth’s extension of the territorial sea in 1990 did not increase the territory or legislative powers of the States.



The “adjacent area” is defined by reference to the PSLA, and is an area referred to in Schedule 2 of the PSLA, which is a series of latitudinal and longitudinal points which were, in essence the limits of the State as established in the Letters Patent, but are the within the “Continental Shelf”.



“Continental Shelf” essentially corresponds with the Continental Shelf definition under the Montego Bay Law of the Sea Convention, subject to certain bilaterally negotiated exceptions.

The effect of the package was to give the States both legislative powers and title over coastal waters out to a three mile limit from the coast, with any consequent benefits to be derived from the control over the exploitation of resources in that area. The States do not have title over the seabed, subsoil, and water outside the territorial sea, except in cases where the Commonwealth has agreed to give them such powers as under the PSLA. The State of Western Australia cannot grant title to or over the seabed, subsoil and waters which it does not own. This is because the Crown in right of the Commonwealth holds that title. It is important to emphasise that the two Coastal Water Acts vested title in the seabed of the coastal waters in the States, as if within the limits of the State, and empowered the States to make laws in relation to those waters as if they were part of the State. They did not extend the limits of the State by varying its area, the limit of the State being defined in the Commonwealth of Australia Constitution Act 1900 at Federation. Consequently, the laws (written and unwritten) of the State prior to the Coastal Waters Act were not automatically extended to the coastal waters, as the limits of the States have not been extended. Only the power of the State to legislate with regard to the coastal waters has been extended. Those waters are held by the States under Commonwealth law, and have not been excised from the territory of the Commonwealth. In Western Australia, the potential void is filled by the Offshore (Application of Laws) Act 1982. That law applies the whole of the written and unwritten laws of Western Australia (other than criminal laws), present and future, to the coastal waters.

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2.2.3.

POWERS TO HOLD AND DEAL IN CROWN LAND There is provision in the LAA to the effect that from its commencement on 30 March 1998, all Crown land and all land held in the name of the Crown should be registered in the name of the State of Western Australia. Section 29(5) provides for the issue of certificates of Crown land title in the name of the State of WA over Crown land. Section 178(1)(c) provides that where the land is taken for a public work, it should be “held as Crown land in the name of the State of WA”, unless provision is made in the taking order for the land to be registered in the name of another party. Sections 10 and 11 empower the Minister for Lands “in the name and on behalf of the State” to exercise powers under the LAA in relation to dealing with Crown land, or acquiring land. His powers may be delegated to officers of the Department of Lands, pursuant to section 9. The Minister for Lands and DoL officers acting under delegated authority sign for and on behalf of the State of Western Australia. The Crown or “Her Majesty Queen Elizabeth the Second” is a juristic entity that comprises the executive branch of Government. Executive power is exercised by the Premier and other Ministers who direct departments under their portfolios. For the purposes of the LAA, rather than referring to Her Majesty Queen Elizabeth the Second” or “the Crown in right of the State of Western Australia”, it was simpler to call it the “State of Western Australia”.

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2.3.

CROWN LAND REGISTRATION – A TORRENS SYSTEM OF LAND REGISTRATION IN CROWN LAND When the LAA commenced operation on 30 March 1998, all dealings creating interests or granting tenure (that is, not licences for example) in Crown land must be registered under the provisions of the Transfer of Land Act 1893 (“TLA”) to be legally effective to convey that interest in Crown land (see section 19 of the LAA). This is the same principle that applies to the registration of dealings for freehold land. The rationale for introducing the LAA was to revolutionise the administration of Crown land in Western Australia by introducing new policies and procedures to modernise Crown land administration and management methodologies. The LAA contemplates utilising, and where appropriate mirroring, the well-established conveyancing procedures, and document registration processes used for Freehold land. A transparent Single Registration system under the LAA will facilitate the creation of one Land Register for Western Australia incorporating Crown land and Freehold land and provide a State guarantee to registered interests on Crown land titles. A major feature of the LAA is the devolution of responsibility for administrative functions for the Crown land from the Governor in Executive Council to the Minister for Lands and other delegates provided for in the LAA. This permits more efficient practices to be adopted by enabling more timely decisions to be made by the Minister without dependence on Executive Council formalities, timeframes, and gazettal publication procedures. Orders made by the Minister for Lands or other authorised delegates now replace Governor’s Orders in Council and Proclamations published in the Government Gazette. As with all other dealings registered or caveats lodged over Crown land, under section 19 of the LAA, these Ministerial orders are effective, not upon execution by the Minister or duly authorised delegate, but upon registration with the Registrar of Titles under the TLA. This registration process replaces the former gazettal publication procedure. In the case of compulsory acquisition of land, the LAA also allows multiple related actions to be dealt with on the registration of a single document known as a Taking Order. This registration system is closely aligned to the Torrens system of land registration for freehold land with certain variations necessary for the transition of the previous recording system for Crown interests and dealings under the Land Act 1933 on a Crown Land Record to a single registration system. To achieve this, the TLA has been substantially amended to enable interests in Crown land to be registered in the same Register as used for freehold land. This Register will continue to be administered by the Registrar of Titles at LANDGATE. To fully understand the impact and practical implications for the registration of interests in Crown land, you need to be aware of how the TLA has been amended.

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2.3.1.

CONSEQUENTIAL AMENDMENTS TO THE TLA The introduction of a Torrens system of land registration for Crown land was achieved by consequential amendments to the TLA: 

Like Part IIIA dealing with Crown leases (inserted into the TLA in the 1950s), a new Part IIIB has been inserted into the TLA. This Part, like Part IIIA, only applies to Crown land. To provide a link with the administration of Crown land powers in the LAA, Part IIIB contains some of the definitions from the LAA and provides the Registrar of Titles with the ability, on application by the Minister for Lands, to create and register different types of titles for Crown land.



Part IIIB of the TLA sets out some specific provisions that only apply to Crown land. It also sets up the procedure that enables the Registrar and Commissioner of Titles to create State-guaranteed interests and indefeasible titles for Crown land. Ultimately, it is intended to have a Torrens Land Register for all parcels of land in this State, comprising both Crown and freehold land all registered under the TLA.



In interpreting the TLA for Crown land registration, sections 4(1a), 4(1b), 4(1c) and section 4A of the TLA must always be considered. Section 4A sets out the provisions of the TLA that do not apply to Crown land. Sections 4(1a), 4(1b) and 4(1c) expressly provide that all the provisions in the TLA, as modified, will be read as if it applies to Crown land unless the contrary intention appears or as prescribed. As at the date of publication, no regulations modifying the TLA in respect of Crown land have been prescribed.



The definition of “Proprietor” for the purposes of the TLA has been specifically amended and expanded. The term “Proprietor” in relation to Crown land does not mean the same as “Proprietor” of freehold land. In the Crown estate, a “Proprietor” is defined as a holder of an interest in Crown land, or a management body as defined in the LAA, because the Crown is always the true owner of Crown land.

All Crown land is owned by the Crown and registered in the name of the “State of Western Australia” until it is specifically alienated. The radical title of the Crown in respect of Crown land always remains with the Crown. It is for this reason that no duplicate titles for Crown land are issued.

2.3.2.

ADVANTAGES OF TORRENS SYSTEM The advantages of a Torrens system of land registration for Crown land cannot be overemphasised. Any person dealing with Crown interests will ultimately obtain 

security and certainty of title;



less delay and expense;



simplification of the processes and dealings previously used for Crown land administration; and



accuracy in the transactions relating to Crown land.

These advantages will enable all persons dealing with and managing Crown land to access LANDGATE’s computerised land registration system and search and obtain copies of any dealings relating to, as well as being able to identify the current status of, a parcel of Crown land. This Register for Crown land has been incorporated into the existing Register for freehold land under the TLA. A registration system under the TLA for all land and interests in land in Western Australia (Crown and freehold) is now available within LANDGATE.

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2.3.3.

WHAT IS CROWN LAND? Crown land is defined in section 3(1) of the LAA to include all land other than alienated land. This includes all land within the limits of the State that forms the airspace, seabed and coastal waters of the State. An example of a Crown title created for the wreck site of HMAS Swan at Dunsborough is set out in Attachment 1. In other words, Crown land is all land in Western Australia for which there is no certificate of title under the TLA, nor memorial nor grant registered under the Registration of Deeds Act 1832. Any land registered under the Registration of Deeds Act 1832 and which has been transferred to the Crown or resumed is considered to be Crown land. Where a Government department or statutory authority acquires or purchases the land in a certificate of title, the land is not automatically revested as Crown land. The land is subject to the legislation administered by the Government department or under which a statutory authority carries on its functions. Subject to the legislation, the Government department or statutory authority has all the rights and obligations of every landowner. Where acquired land is revested or where the acquiring agency takes management of existing Crown land through dedication under an Act such as the Marine and Harbours Act 1981, that agency has special statutory powers and responsibilities. Such land is nevertheless “Crown land” within the meaning of the LAA. Generally, in practice, DoL would not however deal with such land under the LAA except with agreement of the statutory management body. Nearly all roads are Crown land (see Chapter 5 of this manual). Most recreation reserves, river foreshores and beaches are also Crown land, and public utilities (dams, pump stations, electricity switch-yards, etc) are usually constructed on Crown land.

2.3.4.

IDENTIFYING CROWN LAND For the purposes of land identification and as provided by section 6 of the LAA, the State of Western Australia has been divided into five divisions - South West, North West, Eucla, Eastern and Kimberley (see Schedule 1 of the LAA). The divisions in turn are divided into districts, such as Swan, Canning, Plantagenet, etc. When Crown land is subdivided into rural (farm) blocks, they are labelled with a district name and sequential number (for example Swan Location 4567, or Plantagenet Location 12345). Within each district are townsites and suburban areas, where the lots are smaller and given a townsite name and number (for example Perth Lot 123 and Perth Sub Lot 456). The system also provides for the creation of intermediate sized lots called Agricultural Area Lots and Estate Lots. If the Crown land is converted to freehold and subsequently subdivided the legal land description continues, for example a house in Belmont could be portion of Swan Location 16 and being Lot 1 on Plan 1245. When land remains under the Land Act 1933, the original system of nomenclature still applies. Where a portion of Crown land is reserved for a particular purpose, it is allocated a Crown land description or retains its Crown land description and a reserve number is added. The Tenure Information Services Section in LANDGATE maintains a number of systems that enable land tenure, including Crown land, to be searched. Defined areas of Crown land will have Crown allotment numbers allocated. Undefined areas of Crown land are now classified as unallocated Crown land (in earlier days known as “waste lands” of the Crown, or vacant Crown land under the Land Act 1933) and may not given a reference as no interests in the land are known to exist. Under SmartRegister, the location number and the Crown Plan number for a piece of Crown land referred to above will become a Lot on Plan parcel identifier (Register Number) for the digital title. The District/Town/Agricultural Area/Estate name will be omitted from the land description.

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2.3.5.

HOW CROWN LAND WAS BROUGHT UNDER THE TORRENS SYSTEM Land alienated before 1 July 1875 may be brought under the TLA by: 

voluntary application pursuant to the provisions of Part II of the TLA;



application under the provisions of the Real Property (Commonwealth Titles) Act, 1925 (No 5 of 1925); and



the lodgement of a Memorial in the Deeds Office of a Taking Order under Part 9 of the LAA.

After 1 July 1875, land alienated from the Crown was brought under the TLA by lodgement of a Crown Grant at LANDGATE, where it was allocated a certificate of title number pursuant to section 18 of the TLA. However section 18 TLA was repealed in 1997 and this method is no longer used. Before the introduction of the LAA, the registration, under Part IIIA of the TLA, of a Crown lease granted for a period of five years or longer and issued under the Land Act 1933 was registered under Part IIIA of the TLA. Following the introduction of the LAA, land being alienated from the State is now brought under the TLA by the preparation and lodgement of a Transfer document. All transactions affecting Crown land may now be registered under the TLA on a certificate of Crown land title (see section 68 (2), (3) & (4) of the TLA and section 19 of the LAA).

2.3.6.

CROWN GRANTS As mentioned above, before the introduction of the LAA, land was alienated into the freehold by the creation of a Crown Grant. A Crown Grant is a title to land in fee simple, formerly Crown land, granted by the Queen (by her Western Australian representative, the Governor) to a person, company, statutory body or incorporated association. The grant may be made for a cash consideration or on the completion of certain developments that will benefit the State or for a mixture of both. Service or religious organisations may have been granted land free of cost to be held on trust for specific purposes beneficial to the community. In this case, the land must be used only for that specific purpose and the Crown Grant was said to be a Crown Grant in Trust. Under the LAA, such land is now known as conditional tenure land. When the land is no longer required for its stated purpose, it may be sold and the value of the land returned to the Crown (State Government), leaving the value of the building on the land as the revenue to be returned to the organisation. Every Crown Grant was subject to reservations to the Crown of the minerals in the land and the land grant was usually limited in depth, either to a depth of 12.19 metres or a depth of 60.96 metres (these limits are the metric equivalents of the Imperial measurements of 40 feet and 200 feet). Each Crown Grant also reserved to the Crown the right to resume (now called a “taking” under the LAA) the land or use part of it for the construction of public works. Most land titles in Western Australia were derived from a subdivision of land contained in an earlier Crown Grant and all titles derived from a grant are held subject to the same conditions as those listed in the Grant.

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2.3.6.1.

HISTORICAL DEVELOPMENT OF DEPTH LIMITS AND MINERAL RESERVATIONS Prior to 1 January 1898, no depth was expressed in Crown Grants, but in the Government Gazette dated 14 January 1898 at page 57, a notice appeared limiting the depth to 20 feet within Goldfields and Mining Districts. In the Land Act 1898, section 15 provided for a limited depth, and in the Regulations published in Government Gazette dated 17 March 1899 at page 812 (to date from 1 January 1899), the limits were: Within Goldfields and Mining Districts

-

40 feet (12.19 metres)

All other lands

-

2000 feet (609.6 metres)

The Regulations were amended in Government Gazette dated 9 March 1906 at page 816 (to date from 1 January 1907) as follows: Within Goldfields and Mining Districts

-

40 feet (12.19 metres)

All other lands

-

200 feet (60.96 metres)

With the proclamation of the Land Act 1933 and section 15(2) on 6 March 1934, the Regulations under that Act as published in Government Gazette 2 March 1934 at page 293, provided in Regulation 15 limited depths as follows: Within Goldfields and Mining Districts

-

40 feet (12.19 metres)

All other lands

-

200 feet (60.96 metres)

or such other depths, in special cases, as the Minister in his discretion may direct. Regulation 15 was repeated in the Regulations published in Government Gazette dated 1 August 1968. As the Mining Districts expanded with the increasing mineral activity, more Crown Grants with 12.19 metre depth limitations and less of the 60.96 metre variety issued, until finally on 22 May 1981, the whole of the State was covered by Mining Districts and the 12.19 metre depth limit came into force throughout the State of Western Australia. Very few variations occurred “at the discretion of the Minister” and, as a general rule, all land below a depth of 12.19 metres was usually retained (together with all minerals to the surface and the usual rights and reservations) by the Crown. 2.3.6.2.

DEPTH LIMITS AND MINERAL RESERVATIONS ON COMMONWEALTH ACQUIRED LAND The law in relation to the acquisition of land by the Commonwealth of Australia is governed by the Lands Acquisition Act 1989 (Commonwealth) and the Real Property (Commonwealth Titles) Act 1925. The general principles, as understood by the Commonwealth of Australia and the State of Western Australia, are as follows: 

When the Commonwealth of Australia acquired privately held fee simple land, it receives only those rights set down in the relevant Certificate of Title, subject to all reservations and rights retained by the State under the original Crown Grant and under State legislation;

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

When the Commonwealth compulsorily acquired privately held fee simple land, it receives both the land described in the relevant Certificate of Title but free of all the reservations and rights formerly retained by the State, and all land (free of all reservations, rights, etc.) to the centre of the Earth;



When the Commonwealth acquired Crown land from the State by negotiation, the Commonwealth received the unrestricted title to the land to the centre of the Earth (under section 134(2) of the Lands Acquisition Act 1989 (Commonwealth);



The same applies, as in the point above, to Crown land compulsorily acquired by the Commonwealth.

Crown Grants created and registered in the name of the Commonwealth of Australia are unlimited in depth and do not contain mineral reservations or a right for the Crown (the State) to resume the land. The State and the Commonwealth arrived at an agreement in the 1950’s whereby whenever the Commonwealth privately disposed of its land, the Commonwealth would instruct the Commonwealth Crown Solicitor’s Office (now known as the Australian Government Solicitor’s Office) to revest any residual rights in the State in each case. The residual rights formed the mineral rights and other reservations contained in the standard Crown Grant forms with respect to rural and town lands as set out in the Land Act 1933. The general depth limitation in all cases was 12.19 metres. Based on this procedure, LANDGATE issued two certificates of title – one for the surface of the land to a given depth, and the other comprising land below that depth to the centre of the Earth including those mineral rights and reservations normally held and reserved by the State in a Crown Grant. Under these arrangements, the Commonwealth agreed that whenever it intended to dispose of land which had been acquired to the centre of the Earth, it would reserve those rights and reservations normally reserved by the State under the Land Act 1933, and immediately transfer those rights and reservations back to the State. This would then place the Commonwealth’s purchaser of that land in exactly the same position as if that purchaser had acquired the land directly from the State itself. When the Mining Act 1978 was introduced, legislation was introduced in section 9 of that Act as follows:

“9.

Gold and silver and other precious metals property of the Crown (1)

(2)

Subject to this Act — (a)

all gold, silver, and any other precious metal existing in its natural condition on or below the surface of any land in the State whether alienated or not alienated from the Crown and if alienated whenever alienated, is the property of the Crown;

(b)

all other minerals existing in their natural condition on or below the surface of any land in the State that was not alienated in fee simple from the Crown before 1 January 1899 are the property of the Crown.

Notwithstanding anything in this Act or any previous enactment the owner, grantee, lessee or licensee of, or other person entitled to, any land to which this section or any corresponding provisions apply, that is not the subject of a mining tenement, is entitled to use any mineral existing

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in a natural state on or below the surface of the land for any agricultural, pastoral, household, road making, or building purpose, on that land.” Despite that section of the Mining Act 1978, it is doubtful whether its effect will bind the Commonwealth of Australia where the Commonwealth has acquired or acquires land compulsorily or, directly from the State and the above process should be followed in cases where land owned by the Commonwealth of Australia is being sold to third parties. 2.3.6.3.

SINCE 30 MARCH 1998 Following the introduction of the LAA (which commenced operation on 30 March 1998), Crown Grants are no longer created and registered by the Governor and the Minister for Lands. Depth limits are no longer specified unless they are already in existence. Crown land can now be brought under the TLA by the lodgement and registration of a Transfer of Land document after a settlement (similar to a settlement of freehold land) has taken place. The Transfer conveys a fee simple interest in the land subject to all other rights and reservations retained by the State in any written law. This will result in the cancellation of the certificate of Crown land title and the creation and registration of a certificate of (freehold) title. Where land to a specific depth or height is to be transferred to the freehold, a Deposited Plan is required to define the cubic depth or height as a Lot. (See Chapter 12 of the Survey and Plan Practice Manual). Even though Crown Grants are no longer created and registered, search copies of all those previously created and registered are still available from LANDGATE. Since the introduction of the LAA, the details of the first freehold certificate of title is available on Smart Register on LANDGATE’s mainframe.

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2.3.6.4.

SEARCHING CROWN GRANTS

The primary searching reference to locating the Crown Grant is the parcel identifier that relates to the original parcel of land (i.e. the first location or lot created immediately after being Crown land). The two main searching tools therefore are the Deeds Office Land Indices for land granted prior to 1875, and the mainframe Smart Register for all other grants, looking at the historical register field (although in effect this index has most Crown Grants listed as the historical register). If the original parcel identifier is unknown then a chain of title search backwards will reveal it eventually. Prior to 1.7.1875 (the commencement of the TLA) Crown Grants issued by the Survey Office (from settlement of the Colony) and then the Crown Lands and Surveys Department as it was until it began in 1890), were issued to the Deeds Office for registration under the Registration of Deeds Act as “Country Enrolments” or “Town Enrolments”. From 1.7.1875, Crown Grants issued to the Office of Titles were (because of the size and presentation of the Crown Grant forms used under the Land Regulations, until the commencement of the Land Act 1898 on 1.1.1899) replaced by a certificate of Title. Commonly such certificates were marked “O.G” (i.e. Original Grant) which is highly misleading. The Original Grant was in fact the Crown Grant as lodged by the Crown Lands and Surveys Department. 

A Crown Grant recites full particulars, including rights and reservations. The Original Grant (O.G) is now stored within LANDGATE. Previously the O.G. issued to the Proprietor.



The O.G may be replaced by a Certificate of Title, which shows only a highly condensed version of the information on the Crown Grant.



Crown Grants and Certificates of Title are numbered in the same series.



A Certificate of Title may be endorsed O.G in the top left hand corner and shows a perforated “Original” at the top, BUT does no recite reservations etc (only relevant Certificates of Title prior to Volume 780)



O.G indicates that the actual Crown Grant information is stored elsewhere and the “Original” refers only to the document being the first C/T issued (only relevant to Certificates of Title prior to Volume 780)



If access to the Crown Grant full reservations is required, contact Land Records Management within LANDGATE to arrange access (only relevant to Certificates of Title prior to Volume 780)



After Volume 780, reservations are recited the Crown Grant.

Note* When searching Crown Grants via IVS (Image System), there are three (3) options as follows: 

Certificate of Title



Country Grant



Town Grant

If full particulars are required when searching, ensure that the Certificate of Title is compared with the Country Grant or Town Grant.

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2.3.7.

CROWN LAND RECORDS At the time the LAA was being proposed and a single registration system was contemplated, Crown land records were created to set up a recording mechanism for Crown land using the computerised searching facilities under the Torrens Register. Crown land records were an administrative device, created in the same format as a certificate of title. A Crown land record was not indefeasible under the Torrens system. It was merely a paper record created for defined portions of Crown land administered under the provisions of the Land Act 1933. Crown land records differed from a certificate of title in that the Crown was always shown as the registered proprietor and no duplicate Crown land records were ever created. Other interests in the Crown land were recorded and these interests included leases under the Land Act 1933, easements, reservations to a particular use, and if appropriate, the name of the Local Government or statutory body in which care, control and management of the land was vested. A particular convenient use of the Crown land record was to show the leases to sporting and other bodies of areas of recreation reserves. Caveats and mortgages were also registered under the provisions of the Land Act 1933 against the Crown land record. Under the LAA, all Crown land records were transitioned across to the LAA as Qualified certificates of Crown land title pursuant to item 44 of Schedule 2 of the LAA. For historical purposes, search copies of all Crown land records ever issued are still available from LANDGATE.

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2.3.8.

FOUR DIFFERENT TYPES OF TITLES FOR CROWN LAND With the implementation of a single registration system under the LAA, the Torrens Register was expanded to include a Register for Crown land, being a register of land tenure and interests in Crown land. Crown titles can now be created for each allocated parcel of Crown land with a land description (being a lot on a deposited plan or a site on an ‘internal interest plan’ which is not necessarily a survey plan), and will be issued in the name of the “State of Western Australia”. Unlike the Torrens system for freehold land, no duplicate Crown titles will be issued. All land the subject of a Crown title is ultimately held by the State of Western Australia, and is not owned by any other person, unlike the ownership of freehold land. Only the Minister for Lands, or a person delegated by the Minister may apply to the Registrar for the creation and registration of a certificate of title for Crown land under Part IIIB of the TLA (see section 81V of the TLA). The Torrens Register for land administered by the Registrar of Titles under the TLA now includes a further 4 main types of titles for Crown land: 

Certificates of Crown land title (CLT);



Qualified certificates of Crown land title (QCLT);



Subsidiary certificates of Crown land title (SCLT); and



Qualified subsidiary certificates of Crown land title (QSCLT).

A Crown title (which can be any of the above four types of titles for Crown land), like a freehold certificate of title, contains three schedules: 

First Schedule The first schedule of a CLT and QCLT contains details of the primary interest holder and the tenure status of that parcel of Crown land. The types of endorsements in the first schedule include reserve details, management body’s and lessee’s details, where the lease has been issued on behalf of the State of Western Australia by the Minister for Lands under the LAA (also known as a State Lease). The first schedule of a SCLT and QSCLT contains details of the internal interest holder and is linked to a head CLT or head QCLT. For further information on SCLTs and QSCLTs, see Paragraphs 2.3.8.3 and 2.3.8.4. In contrast, the first schedule of a freehold certificate of title contains details of the registered proprietor of that land parcel. The registered proprietor of a Crown title is always the “State of Western Australia”. This is shown in the preamble of the title. It should be noted that Crown titles have been incorporated into SmartRegister commencing July 2002. Crown titles will only refer to a lot on deposited plan. As with freehold titles in SmartRegister, the graphic for that land is no longer displayed on the Crown title and is available for searching either by obtaining a copy of the deposited plan or superseded Crown title.

2.3.8.1.

CERTIFICATE OF CROWN LAND TITLE The first type of title for Crown land is known as a certificate of Crown land title. A CLT, like a freehold certificate of title is, subject to section 68 of the TLA, conclusive evidence of the Crown interests, dealings and encumbrances registered against a defined parcel of Crown land. An example of a CLT is set out in Attachment 2.

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It is a Crown title, like a freehold certificate of title that, subject to section 68 of the TLA, guarantees that all Crown land interests and tenures relating to a defined parcel of Crown land that may or may not be surveyed, are shown on that title. Where that parcel of Crown land has not been surveyed, notification of that fact will be shown in the Third Schedule of the title with the following words:

SUBJECT TO SURVEY NOT FOR ALIENATION PURPOSES Where Crown land is proposed to be transferred into the freehold under Section 74 or 75 of the LAA, it must be surveyed in accordance with the standards and guidelines set out in the Survey and Plan Practice Manual and approved by the WAPC. A 5-year period of time (defined in the LAA as the “Transitional Period”) was inserted in the LAA to enable all dealings in relation to Crown land to be registered or recorded. The effect of the Transitional Period means that any person who has failed to register his interest or record his claim for that interest within the 5-year period of time will lose priority against a prior registered interest. Where there is a conflicting registered interest, that prior unregistered interest will be void. Failure to register that interest within the 5-year period will not automatically void that interest. That dealing will still be valid and enforceable and may still be registered at any time after that 5-year period subject to any prior registered interests. Certificates of Crown land title will be created for each defined parcel of Crown land, and will be issued in the name of the “State of Western Australia”. Unlike the freehold system, no duplicate certificates of Crown land title will be issued, as all land the subject of a certificate of Crown land title is land ultimately held by the Crown, and is not “owned” by any other person, unlike the ownership of freehold land. Copies of these certificates of Crown land title showing all registered dealings affecting a parcel of Crown land, like freehold certificates of title, will be readily available through the normal searching facilities at LANDGATE. Any person with a registrable interest in a parcel of Crown land that is not already the subject of a CLT can make written request to the Minister for Lands via the Manager of the relevant Regional and Metro Services region, to have a certificate of Crown land title created and registered for that parcel. As a general rule, before CLTs can be created for a parcel of Crown land, the interest holders (being all parties with an interest in the land, whether as lessor, lessee, sub-lessee, mortgagee etc) must produce the best evidence available to establish the validity of their respective interests. Essentially, this will require the production of the original executed and stamped documents evidencing the rights and interests claimed by the interest holders. To enable the creation of a CLT, the Registrar of Titles requires all registrable interests in the land to be either registered or protected by a caveat. A statutory declaration is also required by all interest holders in the land to verify the interests claimed and to confirm the status of their interests. Such a statutory declaration is required where: 

the original stamped document executed before the commencement of the LAA cannot be produced; and

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

the interest holders have acknowledged, by way of statutory declarations, that they do not hold the original document and have not deposited the original stamped document with any other party as security by way of charge, lien or mortgage.

It should be noted that a duplicate copy (not being a photocopy) of the original document, which has been stamped and executed by all parties, may be accepted in the absence of an original PROVIDED THAT the duplicate document has been executed before 30 March 1998 (see section 81U of the TLA). To accept a duplicate in lieu of an original supporting declarations by the parties to the documents are required stating their knowledge of the last known whereabouts of the original document, what searches and enquires have been made to locate it and that the original document has not been deposited with any bank, firm or person by way of security for any lien or loan or any other purpose. Once the duplicate copy of the original document has been lodged and registered, the duplicate document will be treated as if it were the original document. All interests are then examined to ensure that there is a clear chain of title. Where the Registrar of Titles is satisfied that all registrable interests have been presented for registration or a caveat claiming those interests has been lodged, and there is no dispute in relation to the respective priorities of those interests or caveats, the Registrar of Titles may create and register a CLT. Only those interests, encumbrances and caveats that are still current will be endorsed on the CLT. If the Registrar of Titles is 

not completely satisfied that the Crown land has been clearly identified; or



is aware of a dispute concerning the respective priorities of 2 or more interests in the land;

the Registrar of Titles may either refuse the application to create and register a CLT, or refer the application to the Commissioner of Titles. Further detail on the process to validate or create CLTs is set out in Paragraph 2.3.14. 2.3.8.2.

QUALIFIED CERTIFICATE OF CROWN LAND TITLE This second type of Crown title, known as a Qualified certificate of Crown land title can be issued where all interests in relation to a parcel of Crown land have not been clearly identified. Until all interests and other dealings affecting a parcel of Crown land are clearly identified and registered, and clear documentary evidence establishing a chain of title exists for all transactions relating to that parcel of Crown land, there will be no indefeasibility, State guarantee or priority as to the interests endorsed on such Crown titles. QCLTs merely set up a register for interests and tenure lodged with the Registrar and registered under the Transfer of Land Act 1893. A QCLT does not guarantee all interests and tenure affecting that parcel of Crown land. However, it does have the advantage of providing a registration system for Crown interests where none existed before. Any interests that are registered on QCLTs can be searched on LANDGATE’s computer system for land. This registration system is customer-friendly and easy to access. Previously, the only other way certain Crown transactions could have been registered was under the Registration of Deeds Act 1856. This registration system is often difficult to search. Under the LAA, there are 2 types of Qualified certificates of Crown land title:

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

Existing Crown Land Records (the administrative one page record for Crown recording using the registration system under the Land Act 1933) deemed under clause 44 of the Second Schedule to the LAA to be Qualified certificates of Crown land title; and



Qualified certificates of Crown land title may also be newly created from the commencement of the LAA for interests in Crown land for which no Crown Land Record has been created and for which all interests and information relating to that parcel of Crown land is not readily available.

QCLTs contain the words “Qualified Certificate of Crown Land Title” in the header to distinguish it from a CLT. Also, a QCLT contains a watermark of “Qualified” across the Third Schedule. An example of a QCLT is set out in Attachment 3.

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2.3.8.3.

SUBSIDIARY CERTIFICATES OF CROWN LAND TITLE A Subsidiary Certificate of Crown Land Title (SCLT) is a Crown title created and registered for a lesser interest in the Crown land to facilitate recording of interests affecting that lesser interest. The SCLT forms part of an existing CLT, referred to as the “Head CLT”. A “Head CLT” is a title for a defined parcel of Crown Land that has subsidiary titles created and registered against it. When a “Head CLT” is cancelled, the notation on the subsidiary will not be updated to reflect the new “Head CLT”. The new title number will be shown on the cancelled “Head CLT”. A SCLT contains the words “Subsidiary Certificate of Crown Land Title” in the header and a watermark of “Subsidiary” in the Third Schedule to distinguish it from other types of Crown Title. An example of a SCLT is set out in Attachment 4. This third type of title may be created by the Minister for Lands for individual internal interests within a reserve or a lease of Crown land and is a title that is derived from a head certificate of Crown land title. SCLTs will be created for individual internal interests within a reserve or lease of Crown land where the number of interests makes it impractical for the recording on one title. The parcel of land contained in a SCLT will be referred to as a “Site” that will be shown in an ‘Internal Interest Plan’ lodged with LANDGATE. For more information on an Internal Interest Plan, see Paragraph 2.3.9. A SCLT will only contain information relating specifically to the individual internal interests contained within the site. Reference to the land tenure, primary interest in the land (ie. the Management Order) and the primary lease in the land (ie. the head lease) will be endorsed on the “head CLT”. A SCLT, like a CLT, subject to Section 68 of the TLA, is conclusive evidence of the Crown interests, dealings and encumbrances registered against that registered internal interest. When searching or examining documents registered on a SCLT, it is vital to obtain a search of the “Head CLT” because encumbrances affecting the land parcel are only shown on the “Head CLT” for example; easements are only shown on the Head CLT. Any person with a registrable interest may request to the Minister for Lands, via the Manager of the relevant Regional and Metro Services region, to create a SCLT in relation to one or more interests in a reserve or lease. Where a SCLT has not yet been created and registered, the Minister for Lands or his/her delegated officer may apply to the Registrar of Titles for the creation and registration of a SCLT. When a document is submitted for registration and the number of multiple interests on the CLT or QCLT makes it impracticable for the recording on one Crown title, the examining officer may refer the dealing to the Crown Title Creation Section of Registration Services Branch in LANDGATE for investigation and approval to proceed with the creation of SCLTs or QSCLTs. To enable the creation of a SCLT, as with a CLT, the Registrar of Titles requires all registrable interests in the “site” to be either registered or protected by a caveat. A statutory declaration is also required by all interest holders in the “site” to confirm the status of their interests.

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As with a CLT, a SCLT can only be issued when the following information has been provided: 

All registrable interests under the TLA pursuant to that ‘site’ are either registered or protected by caveat.



The Primary Interest Holder declares all interests that it has generated and is directly responsible for.



Statutory declarations are received from all holders of interests granted by the Primary Interest Holder stating all interests, status orders or caveats in respect of that parcel have been fully disclosed. As a matter of LANDGATE policy, these declarations must be executed within 4 months of the Application for SCLT’s being lodged with the Registrar of Titles.



A plan of survey or sketch plan of that parcel in an approved form.



Such other information as the Minister requires.

Like all the other types of Crown titles, a SCLT has 3 schedules where the only difference is that each schedule relates to the relevant internal interest that it has been created for (for example lease interest, sublease interest). See also Paragraph 2.3.8. When searching SCLTs or QSCLTs, it is vital that a search is also obtained of the current “Head CLT” at the same time because status orders and other interests that affect the parcel of land itself, such as easements, are only registered on the “Head title”. In order to search a CLT or SCLT, it is necessary to prefix the title with “LR” when entering into LANDGATE’s Mainframe Registers or ordering a copy. The “Head” CLT can be searched by entering the parcel identifier for the land. To then enquire whether or not subsidiary titles may have been created over that parcel of land, a search may be undertaken using LANDGATE’s Mainframe Register as follows: 

Access the Crown Allotment System on LANDGATE’s mainframe by entering the mnemonic ECA,



Enter the allotment details (for example Victoria Location 10471).

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2.3.8.4.

QUALIFIED SUBSIDIARY CERTIFICATE OF CROWN LAND TITLE A Qualified Subsidiary certificate of Crown Land Title (QSCLT) is a Crown title for a defined portion (known as a ‘site’) of Crown land, which forms part of an existing CLT/QCLT (referred to as the “Head CLT”). A QSCLT does not guarantee that all interests have been registered or endorsed against it. Like a QCLT, there will be no indefeasibility, State guarantee or priority as to the interests endorsed on a QSCLT. . For more information on the validation process to unqualify a QSCLT, see Paragraph 2.3.14. A QSCLT contains the words “Qualified Subsidiary Certificate of Crown Land Title” in the header and a watermark of “Qualified Subsidiary” in the third schedule to distinguish it from other types of Crown titles. An example of a QSCLT is set out in Attachment 5. As with a QCLT, there is no priority or guarantee for any interests registered or recorded on QSCLTs. However, LANDGATE will treat dealings and interests on QSCLTs with the same duty of care as guaranteed CLT’s. It should be noted that a QSCLT can be validated without the “head QCLT” being validated. However, all QSCLTs must be validated before the “head QCLT” can be validated. The validation process is set out in Paragraph 2.3.14. Enter Parcel Identifier to access CAL Enquiry screen and Select PF8

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2.3.9.

INTERNAL INTEREST PLANS Before SCLTs are created, an Internal Interest Plan must be drawn up to show the multiple interests that are contained within an existing parcel/tenure of Crown land. Internal Interest Plans are used to identify “sites”, which are parcels of Crown land within the reserve or lease. Its primary function is to display the location and boundaries of leasehold or sub-leasehold interests within a larger reserve or head lease.

2.3.9.1.

CREATION OF INTERNAL INTEREST PLANS The relevant management body/agency or lessee must present the graphical information required to prepare an Internal Interest Plan to LANDGATE in a digital format (preferably in a DGN format or other formats compatible with Microstation software). The heading of the plan will state “INTERNAL INTEREST PLAN” followed by a description of the head tenure (for example, Nelson Locations 12439 and 13304 (Class A Reserve 38881)). Each land parcel shown on an Internal Interest Plan will be identified as a “Site”. This is to avoid any confusion with the parent lot description. Above the title block will be the statement “SITE PLAN ONLY”. Site boundaries are generally shown as broken lines as if they had not been surveyed. This does not preclude accurate dimensions if surveyed.

2.3.9.2.

ACCURACY OF INTERNAL INTEREST PLANS Internal Interest Plans will be unsurveyed sketch plans and deposited plans. It is the spatial relationship that is to be portrayed and the ability to relate a site number to the relevant SCLT that is important, rather than the question of absolute accuracy. Where accurate data exists, it will be used. However, where available information, generally from management bodies/agencies, identifies the relative position of sites, an Internal Interest Plan can be prepared without the additional cost of survey. Where an Internal Interest Plan of limited accuracy is in place, the Minister for Lands may, under section 23 of the LAA, replace the existing plan with a revised plan of greater spatial accuracy. All Internal Interest Plans have to be suitable for the creation of site lots for the purposes of creating SCLTs and QSCLTs and must be approved by an authorised land officer.

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2.3.10.

APPROVED DOCUMENT FORMS

2.3.10.1. GENERAL All document forms, including cover sheets intended to be lodged with the Registrar of Titles for the registration or recording of dealings in respect of Crown land under the TLA, should be approved under section 278 of the LAA by Director General of DoL following consultation with the Registrar of Titles. The requirements as to the form of documents lodged under the TLA are set out in Paragraph 1.5 of the Land Titles Registration Practice Manual. Specific information relating to the size, margins, quality and binding of such forms are set out in Paragraph 1.5.2 of the Land Titles Registration Practice Manual. As is the case of private printing of forms for dealing with freehold land, the same requirements also apply for forms created for dealing with Crown land and interests in Crown land. With the introduction of the LAA, a number of specific Crown forms have been created and approved under section 278 of the LAA. There may be some slight modification to forms made as a result of SmartRegister. Please refer to Paragraphs 1.5.6 and 1.5.7 of the Land Titles Registration Practice Manual. 2.3.10.2.

USE OF COVER SHEETS The use of approved forms as coversheets also applies only to Crown documents that were created prior to 30 March 1998. The approved form may be used as a coversheet on documents that were created, executed and stamped in a deed format to allow for registration. The following listed Approved Forms may be used as coversheets for dealings in Crown land and are available from the Land Registration Centre at LANDGATE in Midland, or its office in Bunbury. Dealing Type

Approved form as Coversheet

Lease

Form L1C (Crown)

Sub-Lease

Form L2C (Crown)

Assignment of Lease

Form T3C (Crown)

Extension of Lease

Form E2 (Freehold)

Variation of lease

Form B2 (Freehold)

Templates of the Crown approved form coversheets can be e-mailed to clients on request in a Microsoft “Word 6” format. The templates will not contain a form approval number which will be required before the form can be lodged for registration or recording. Note: Within DoL all primary tenure documents produced by the Regional and Metro Services Division need to be created through DPS to facilitate automated advice of sale.

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2.3.11.

REGISTRATION OF PRE-LAA DOCUMENTS FOR CROWN INTERESTS

2.3.11.1.

BACKGROUND Under the Land Act 1933, Crown land was reserved and vested under that Act by Order in Council made by the Governor and gazetted in the Government Gazette. The Order was commonly known as a “Vesting Order”. The Order had the effect of vesting the parcel of Crown land in a particular person for a designated purpose and subject to such conditions and limitations, as the Governor deemed necessary. Under the Land Act 1933, the Governor could confer upon the person in whom the Crown land was vested, the power to lease, sublease or grant licences over the vested reserve. These Vesting Orders have been transitioned into the LAA as “Management Orders” made under the LAA. The granting of leasing powers in the Vesting Order also confers the following powers to the lessor – the ability to: 

transfer/assign;



extend;



vary; and



sub-lease.

With the introduction of the LAA the ability of the Minister for Lands to make orders creating reserves and Management Orders has been created. These orders registered under the TLA are now used in place of gazettal actions by the Governor. However, some transitional process had to be considered to register documentation prepared pre-LAA, which had been created in a deed format and were not registrable in that format. These pre-LAA types of documents will be accepted for registration under the TLA with TLA approved forms used as coversheets if the terms and conditions set out in the documents are clear. Approved forms used as coversheets for pre-LAA documents will not need to be stamped or executed provided that the deed contained within the Approved form coversheets is an original or duplicate original document and has been correctly stamped and executed. Any pre-LAA documents seeking to be lodged for registration will require the consent of the Minister for Lands under section 18 of the LAA (see Paragraph 2.9). 2.3.11.2.

LEASES Leases prepared by management agencies prior to 30 March 1998 were usually prepared in the form of a deed and therefore are not in a registrable format under the TLA. To enable a pre-LAA deed of lease to be registered, the deed must be stapled inside a lease approved form used as a coversheet (Form L1C) prior to lodging (see Paragraph 2.3.10.2 and Paragraph 1.5.5 of the Land Titles Registration Practice Manual). The approved form coversheet should be prepared as follows: 

All the panels of the coversheet must be completed (except the attestation panel);



The land description section must contain a lot or location on a plan or diagram number and must show the Crown title Volume and Folio number;



The term and commencement date sections of the approved form coversheet must be completed; and

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

Lodging party and issuing instructions must be completed.

When the lease is lodged in duplicate for registration, both documents must have a completed approved form coversheet. The duplicate lease will be issued to the lodging party or as directed in the issuing instructions section of the cover sheet. The duplicate registered lease is the lessee’s copy and should be retained for security purposes. 2.3.11.3.

SUB-LEASES A deed of Sub-lease created prior to 30 March 1998 must be stapled inside a sub-lease approved form used as a coversheet (Form L2C) prior to lodging (see Paragraph 2.3.10.2 in this Chapter and Paragraph 1.5.5 of the Land Titles Registration Practice Manual). The approved form coversheet must be prepared as follows: 

All the sections of the coversheet must be completed;



The land description section must contain a lot or location on a plan or diagram number and must show the Crown title Volume and Folio number;



The term and commencement date sections of the approved form cover sheet must be completed; and



Lodging party and issuing instructions must be completed.

When the sub-lease is lodged in duplicate for registration, both documents must have a completed approved form coversheet. If a duplicate head lease has been registered, it must be produced to have the sub-lease endorsed against it. 2.3.11.4.

ASSIGNMENT OF LEASES An Assignment of Lease entered into before 30 March 1998 may be lodged for registration as a Transfer of Lease. This is possible because of the transitional provisions in clause 47 of Schedule 2 of the LAA which provides that the purported assignment of a lease under the Land Act 1933 or any other written law, or under the TLA before 30 March 1998, may be registered and be read as a transfer of the lease. To register an Assignment of Lease, a Transfer of Lease form (Form T3C) must be used as a coversheet (see Paragraph 2.3.10.2 in this manual and Paragraph 1.5.5 of the Land Titles Registration Practice Manual). The Transfer form must be prepared as follows: 

All panels in the transfer form must be completed (except the attestation panel);



The land description must contain a lot or location on a plan or diagram number and must show the Crown title Volume and Folio number;



The consideration panel must be completed; and



The tenancy of the transferees must be shown - that is, as joint tenants or tenants in common.

If the Head lease has been registered in duplicate, the duplicate copy of the head lease must be produced to have the assignment of lease endorsed against it. Only one copy of an Assignment of Lease can be lodged for registration. Since 30 March 1998, ‘Transfers of Leases’ should have been used instead of ‘Assignments of Leases’. ‘Assignments of Leases’ created after 1 September 1999 will not be accepted for registration.

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2.3.11.5.

EXTENSION OF LEASES A Deed of Extension of Lease granted prior to 30 March 1998 must be stapled inside a standard Extension of Lease (Form E2) approved form used as a coversheet before it may be lodged for registration (see Paragraph 2.3.10.2 in this manual and Paragraph 1.5.5 of the Land Titles Registration Practice Manual). An Extension of Lease can contain variations as to the conditions of the lease only. Any variations in the Deed of Extension of Lease that seek to change the parties to the lease document or change the area of the leased premises are not acceptable for registration as an Extension of Lease. The approved form used as a coversheet must be prepared as follows: 

All panels in the extension of lease form must be completed (except the attestation panel);



The land description must contain a lot or location on a plan or diagram number and Crown title Volume and Folio identifier; and



The registered proprietor panel should contain the lessor/management agency not the “State of Western Australia”.

If the head lease or sublease document has been registered in duplicate, the duplicate registered head lease or sublease must be produced to have the extension of lease endorsed against it. Only one original copy of an Extension of Lease can be lodged for registration. 2.3.11.6.

VARIATION OF LEASES A Deed of Variation of Lease granted prior to 1 September 1999 must be stapled inside a blank instrument form (Form B2). The Deed of Variation must contain: 

An accurate description of the land;



An accurate description of the lease to be varied;



Stamp duty endorsement; and



The conditions to be varied and the variations to the original lease;

If it has not already been registered, the original lease or its duplicate copy sought to be varied must also be lodged for registration with the Deed of Variation of Lease. A Variation of Lease document cannot seek to vary the area of the lease or seek to vary the term of the lease. Where the term of a lease is to be increased, an Extension of Lease form should be used. The Extension of Lease form can then contain such variations to the conditions contained in the lease, provided the conditions do not seek to vary the parties to the lease or the area of the leased premises. Where the parties are to be varied, a transfer of lease form should be used. Where the area of the leased premises is to be varied: 

A Surrender of Lease form should be used, where the leased premises are being decreased, or



A new lease granting the additional area of land is to be prepared where the leased premises are being increased.

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2.3.11.7.

EASEMENTS Management bodies do not usually have the power to grant easements under a Management Order. Only the Minister for Lands has the power, under Part 8 of the LAA (or under Part VIIIA of the Land Act 1933), to grant easements over Crown land to run with the land. See Chapter 8 (Easements) of this manual in relation to easements over Crown land.

2.3.11.8.

MORTGAGES Before a mortgage over a registered Crown interest (such as a lease or sub-lease) in Crown land may be registered under the TLA, the mortgage must be prepared in the same format as a freehold mortgage on a Mortgage Form M1. The form of mortgages by way of sub-demise, used regularly for Crown interests created pre-LAA, is not acceptable for registration under the TLA. However, mortgages by way of sub-demise, created pre-LAA, may be protected by a caveat recorded against the interest for which the mortgage has been taken PROVIDED THAT the mortgage and the interest it is securing received the approval of the Minister for Lands under sections 143 and 145 of the Land Act 1933. If approval was not given under Land Act 1933, then approval under section 18 of the LAA may be sought (see Paragraph 2.9).

2.3.11.9.

SKETCHES ON DOCUMENTS Sketches on documents should be of a good standard with sufficient dimensions to clearly identify the location of the particular interest on the parcel of Crown land the subject to the transaction. An example of a sketch that is acceptable for registration purposes is set out in Attachment 6. It should also be noted that it is preferable that “hatching” or “stippling” is used in lieu of “shading” or colouring” on sketch plans in documents to assist in black and white copy searches of the document. Sketches that do not meet the above requirements will be considered on an individual basis as to their acceptability.

2.3.11.10. ACCEPTING DUPLICATE DOCUMENTS AS ORIGINALS The registration of an interest in Crown land requires the lodgement of the signed and stamped original document in a prescribed form with the Registrar. Section 81U of the TLA however, does allow for the registration of a signed and stamped duplicate document in the absence of a signed and stamped original document where the document was granted prior to 30 March 1998. This applies to documents created by the management body, interest holder or copies held by the DoL on its files. In addition, for the purposes of endorsing interests in Crown land entered into before 30 March 1998, the Registrar may accept for registration an original or duplicate document from the management body, the interest holder or a document filed by DoL. Therefore, in the absence of a signed original document stamped as the original document, the TLA allows for the registration of a signed duplicate original document stamped as the duplicate document, PROVIDED THAT the document was executed prior to the 30 March 1998.

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If the lodging party is unable to locate the signed and stamped original document issued by Local Government, they should contact the Manager of the relevant Regional and Metro Services region and request a search of the relevant file to ascertain if it contains the original document. If the original document is contained on the DoL, it can be forwarded back to the interest holder or their agent for registration. A duplicate document contained on the file may also be requested to be forwarded to an interest holder for registration. The lodgement of an executed and stamped duplicate document in place of the original stamped and executed document will only be acceptable for registration upon production of a statutory declaration from the lessor (management body/agency) and the lessee. The statutory declaration should include the following: 

State the position the declarant holds within the organisation and that he/she is authorised to make the declaration on behalf of the organisation;



Identify the land by parcel identifier (lot or location), reserve number and purpose;



Identify the document (set out the details of the document) and indicate if and when the Minister for Lands approval had been received; and



What enquires have been made to locate the original document.

The statutory declaration from the lessee should include the following: 

Identify the land by parcel identifier (lot or location), reserve number, purpose and lease details;



Identify the current occupant of the land;



Statement to the effect that the original document was never in your possession or original document was in your possession and what searches and enquires were made to locate it; and



Statement that the original document had not been deposited with any bank, firm or person by way of security for any lien or loan or any other purpose.

2.3.11.11. NUMBER OF COPIES TO BE REGISTERED In most cases, only the original document can be lodged for registration. However, there are four document types that are exceptions to this rule, and may be lodged in duplicate. These are: 

Leases;



Sub-Leases;



Powers of Attorney;



Management Orders.

2.3.11.12. TRANSITIONAL PERIOD There is a five (5) year period of time (defined in the LAA as the “transitional period”) to enable all current and existing pre-LAA dealings in Crown land to be registered or recorded.

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At the end of that 5-year period (30 March 1998 to 29 March 2003), any interest in Crown land that remains unregistered, will 

Lose priority against a subsequent registered interest;



Be void as against a prior registered document to the extent of any inconsistency between the unregistered interest and the registered interest; and



Will no longer be fee exempt under Regulation 6A of the TLA Regulations 1997.

Many administrative actions undertaken under other State legislation (for example, dedicating, setting apart or vesting) over Crown land have not been endorsed on the Register under the TLA and, unlike administrative actions under the LAA, continue to be effected by way of Governor’s proclamation and gazettal action provided under those State Acts and do not need to be registered under the TLA to be valid and effective in their own right. However, it will be prudent to contact DoL and arrange for these administrative actions to be endorsed on the Crown title. See Paragraph 2.3.13 for more information and contact details. During this five (5) year transitional period, parties may seek to validate or unqualify QCLTs. The process for validating QCLTs is set out in Paragraph 2.3.14. Where QCLTs are validated before 30 March 2003, the effect outlined above for the transitional period applies from the date of validation of that CLT, and not from 30 March 2003. 2.3.11.13. NO REGISTRATION FEES PAYABLE DURING THE TRANSITIONAL PERIOD As can be appreciated, it will take some time to develop a complete Register for all interests in Crown land in this State. In an endeavour to 

enable a smooth transition into this new single registration system;



ensure that all interest holders are given the opportunity to register their interests; and



obtain the benefits of security and guarantee of title normally associated with a Torrens system of land registration,

all holders of interests in Crown land created before 30 March 1998 do not have to pay any LANDGATE registration fees provided that they register those pre-LAA interests within the transitional period (as set out in regulation 6A of the TLA Regulations 1997).

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2.3.12.

REGISTRATION OF NEW CROWN INTERESTS UNDER THE LAA

2.3.12.1.

GENERAL Following the introduction of the single registration system, the LAA empowers the Minister for Lands, by the grant and registration of a management order under section 46(1) of the LAA, to place a reserve under the care, control and management an entity (known as a Management Body) for either: 

the same purpose as the reserve, or



a purpose that is ancillary or beneficial to the reserve purpose.

In the Management Order, the Minister for Lands may confer on the management body specific power to grant a lease, sub-lease or licence over the whole or any part of the Crown land within the reserve, subject to the Minister’s approval under section.18 of the LAA as set out in section 46 of the LAA (see Paragraph 2.9). This is possible even though the Management Order is not an interest in land as stipulated under section 46(5) of the LAA and such grants of lease or sub-lease are interests in land. The Minister for Lands may also approve mortgages over any such lease subject to the approval process contained in section 18 of the LAA. Where a management body is granted the power to lease in a Management Order, that power to lease also confers on the management body/lessor the following related powers; to: -

2.3.12.2.



transfer the lease;



extend the lease;



vary the lease; and



enter into sub-leases.

APPROVED FORM (COVERSHEET) BECOMES PART OF THE DOCUMENT The use of approved forms as coversheets applies only to documents that were created prior to 30 March 1998. These forms do not contain the stamping and execution details as such information is already contained in the document. For documents prepared after 30 March 1998, the details contained in the Approved form (coversheet) should be incorporated into the body of the document in a TLA format (for further information, see Paragraph 2.3.10.2). The stamping and execution details must form part of the document in the standard TLA format for documents created after the 30 March 1998. Approved forms cannot be used as coversheets for documents that are created to register an interest after the 30 March 1998.

2.3.12.3.

FORMAT OF DOCUMENTS All documents created for the registration of an interest in Crown land after the 30 March 1998 must be prepared in a TLA format that is on an Approved form. For requirements as to correct form, see Paragraph 2.3.10.

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2.3.12.4.

LEASE Section 81Q of the TLA provides for the registration of a lease by the proprietor of any Crown land under the operation of the LAA for a term (excluding options to renew) of twelve (12) months or more. A duplicate copy of a lease may be lodged for registration along with the original document. A lease of Crown land created after 30 March 1998 must be prepared using an Approved Form L1 or L1C. Unlike the procedures for pre-LAA leases (see Paragraph 2.3.11.2), the primary interest holder (being the lessor/management body) and the lessee must both sign the Form L1 or L1C Approved form before adult witnesses, who must sign, then clearly print their name, address and occupation below the signature. Where the lease relates to portion of a lot or location, it must have a land description that is clearly defined by a sketch. A lease of part of a building may refer to a narrative land description (see Paragraph 2.8.4 of the Land Titles Registration Practice Manual). The term of the lease must be clearly defined and must contain a commencement date (which may be a date prior to the date of the lease’s execution or a date up to 21 years in the future) and either a date of expiration or a finite term of the lease must be provided. WAPC consent is not required for leases over portions of Crown land or part of a building erected on Crown land. Unless the land is vested for the purpose of another Act, prior Ministerial consent under section 18 of the LAA is required to a lease of Crown land. Dealings in relation to the leasehold interest are endorsed: In the case of a “document numbered lease” where the leased land in comprised within the subject of a digital title, only on the digital Crown title; In the case of a “document numbered lease” where the leased land is comprised within the subject of a paper title, on the lease document itself and on the relevant paper Crown title;

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In the case where the lease is still a “year numbered lease”, on the lease itself and the relevant digital or paper Crown title. 

In order to search a lease of Crown land, it is necessary to access the Crown Allotment System on LANDGATE’s Mainframe to obtain the details of the Crown land title. This is done by entering the mnemonic ECA, and then entering or typing in the allotment details (for example Kyarra Location 171) as follows:

Enter Crown Allotment details

Once the allotment details have been keyed in, a Crown Allotment Screen will appear as follows:

Crown lease number has been cancelled

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The Crown lease number 503/1990 is shown as having been cancelled. It is endorsed on the Crown Allotment Enquiry Screen as “dead”. This means that the numbering system for that Crown lease is no longer operable. Selecting the PF8 key displays the new lease details:

New CLT Number

New Lease

2.3.12.5.

SUB-LEASE A sublease of Crown land, being a lease of a leasehold interest, may also be registered under section 81Q of the TLA. Printed Forms L2 and L2C should be used for this purpose. The sublease may be for any part of the term of the lease (not less than one (1) year) or, all of the term of the lease less one day. A sub-lease for the whole term of the lease would operate as a transfer of the lease and for that reason will not be accepted for registration as a sub-lease. Any consents required by the terms of the lease must be endorsed on the sub-lease. This includes section 18 LAA consents. A duplicate copy of a sub-lease may be lodged for registration together with the original. Upon registration, the sub-lease is endorsed: in the case where the sub-leased land is comprised within the subject of a “document numbered lease” on a digital title, only on the digital Crown title; in the case where the sub-leased land is comprised within the subject of a “document numbered lease” on a paper title, on the head lease document and on the relevant paper Crown title; in the case where the sub-leased land is comprised within the subject of a “year numbered lease”, on the “year numbered lease” and the relevant digital or paper Crown title.

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Dealings in relation to the sub-lease, once registered, are endorsed in the case where the subleased land is comprised within the subject of a digital title, only on the digital Crown title; in the case where the sub-leased land is comprised within the subject of a paper title, on the sub-lease document itself and on the relevant paper Crown title. 2.3.12.6.

TRANSFER OF LEASE Paragraph 2.3.11.4 provides that Assignments of Leases entered into prior to 30 March 1998 may be lodged for registration as a Transfer of Lease. Under the LAA, documents prepared in the form of Assignments of Leases will no longer be acceptable for registration purposes to transfer the proprietorship of a lease under the single registration system pursuant to the TLA. In an endeavour to ensure that all parties were aware of this requirement, the Registrar had agreed to continue accepting Assignments of Leases until 1 September 1999. However, a Transfer of Lease form must be used for all such transfers prepared and executed after 1 September 1999. TLA Forms T3 & T3C have been printed for this purpose. While the whole or a share of the interest of a lease may be transferred, a transfer reciting only one of two or more properties the subject of the lease is not acceptable for registration. A transaction of this nature should be prepared by way of a surrender of that one property from the lease and a new grant of the leasehold interest of that property to the new lessee. Encumbrances lodged against the lease (that is against the lessee’s interest) must be either removed or shown as encumbrances on the approved Transfer Form (Form T3 or T3C). Any duplicate registered lease (lessee’s copy) of a Crown lease must be produced with a transfer of such a lease. The reason for this is that the lessee’s copy of a Crown lease is capable of being deposited as a security and its production ensures that the rights of all interested parties are protected.

2.3.12.7.

EXTENSION OF LEASE Extensions of Leases prepared after 30 March 1998 can be prepared using printed Approved Form E2 for management body leases or Form LAA-1019 for State of WA leases. All relevant parties must sign the Form before adult witnesses who must also clearly print their name, address and occupation below their signature. In addition to the requirements set out in Paragraph 2.3.11.5, the lessee’s copy of the lease must also be produced at the time the Extension of Lease is lodged. As the Extension of Lease is an instrument, encumbrances must be shown on the form and the consents (if any) required by the terms of the lease obtained. Note: For extension of State Leases, Approved Form LAA 1019 is used.

2.3.12.8.

VARIATION OF LEASE See Paragraph 2.3.11.6. The same requirements set out in that Paragraph also apply to Variation of Leases entered into after 1 September 1999.

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2.3.12.9.

MORTGAGES There is a special Approved Form M1 printed for this purpose and all mortgages created after 30 March 1998 should be in a registrable format. Mortgages by way of sub-demise can still be protected by way of a caveat as provided in Paragraph 2.3.11.8. As is the case for freehold land, a mortgage of Crown land lodged under the TLA operates as a charge against the land and not as a transfer. Any duplicate registered lease (lessee’s copy) of a Crown lease must be produced with a Mortgage of such a lease. The reason for this is the lessee’s copy is capable of being deposited as a security and its production ensures that the rights of all interested parties are protected. The land description of the mortgage must refer to the registered interest. For example, “As to Lease XIIIIII Only”. For more detailed information on mortgages, see Paragraph 2.6 of the Land Titles Registration Practice Manual.

2.3.12.10. SKETCHES IN DOCUMENTS See Paragraph 2.3.11.9. 2.3.12.11. ADVICE FOR COMPLETING REGISTRATION FORMS Customers are advised that LANDGATE registration staff are only authorised to give registration related advice to members of the public. If legal advice is required, customers should seek the assistance of a solicitor. For other types of conveyancing advice, customers may wish to discuss the matter with their settlement agent or lending institution. For Crown land administration information customers should contact the Department of Lands. LANDGATE, as part of its ongoing commitment to provide quality customer service, has an established Land Registration Centre in Midland specifically to assist all members of the community with their registration conveyancing enquiries and needs. Where a customer is uncertain as to the correctness of a particular section of their document, then assistance can be obtained from LANDGATE’s Land Registration Centre, Advice Officers. However LANDGATE’s Advice Officers are not in a position to prepare nor to pre-examine documents. Advice Officers may be contacted by personal attendance at the Land Registration Centre reception at LANDGATE’s Head Office in Midland; by phone: (08) 9273 7044 or facsimile (08) 9273 7651 or by post to: Land Registration Centre Registration Services Branch LANDGATE, PO Box 2222, Midland, WA 6936 Advice on conveyancing and registration matters can only be obtained from LANDGATE’s Midland Office. The Perth and Bunbury Offices are only offices of document lodgement and do not have the appropriate staff or facilities to provide advice. Requisitions, for which a requisition fee may apply, may be issued for incorrectly prepared documents that are identified during the examination process.

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2.3.12.12. MINISTERIAL APPROVAL AND MANAGEMENT BODY APPROVAL A person must not, subject to certain exceptions, assign, sell, transfer, mortgage or otherwise deal with interests in Crown land without the prior approval of the Minister for Lands under section 18 of the LAA (for further information, see Paragraph 2.9). With interests granted or entered into by management bodies, the Minister for Lands’ “in principle” approval may be given to a prepared and unexecuted dealing/interest with management body’s prior consent. 2.3.12.13. DEALINGS MUST BE REGISTERED TO PASS ANY INTEREST OR CAVEAT RECORDED An interest capable of being registered under the TLA in respect of a parcel of Crown land will not become effective at law or effectual to convey any interest until that interest is registered or a caveat claiming that interest is recorded against the Crown Title – See section 19 LAA. An unregistered interest will be an equitable interest as is the case with unregistered interests in freehold land. 2.3.12.14. NUMBER OF DOCUMENT COPIES TO BE PREPARED AND REGISTERED This requirement is set out in Paragraph 2.3.11.11 and continues to apply to documents lodged after 30 March 1998. 2.3.12.15. DOCUMENT REGISTRATION FEES The registration fees prescribed under the TLA are published in the Government Gazette from time to time. Registration fees are subject to change. Copies of the prevailing scale of fees can be obtained from the Land Registration Centre in the LANDGATE building in Midland and from the LANDGATE Offices in Perth and Bunbury. They may also be downloaded from LANDGATE’s Internet site.

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2.3.13.

REGISTRATION OF CROWN INTERESTS CREATED BY EXTERNAL AGENCIES UNDER STATE LEGISLATION OTHER THAN THE LAA There are many State agencies with legislative power to create interests in Crown land other than the Minister for Lands under the LAA. These State agencies are granted such powers under their own legislation. With the introduction of the LAA and associated amendments to the TLA (see Paragraph 2.3.1), those interests are now also capable of being registered under the TLA. One of the objectives of the LAA registration regime is to encourage registration of as many interests, as possible, affecting the land. Many administrative actions undertaken under other State legislation (for example, dedicating, setting apart or vesting) over Crown land are not necessarily registered under the TLA and continue to be effected by way of Governor’s proclamation and gazettal action provided under those State Acts. However, the introduction of a single registration system under the LAA for all land does now enable interests created under other Acts to be registered under the TLA. If any State agency wishes to discuss strategies and procedures with LANDGATE to enable all interests against Crown land vested in that State agency registered and titles created, contact should be made with the Crown Registration Liaison Officer, Crown Title Creation on telephone (08) 9273 7388.

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2.3.14.

VALIDATION OF QUALIFIED CROWN LAND TITLES

2.3.14.1.

GENERAL As mentioned in Paragraph 2.3.8, the LAA provides for the creation and registration of four (4) types of Crown title: 

Certificates of Crown land title;



Qualified certificates of Crown land title;



Subsidiary certificates of Crown land title; and



Qualified subsidiary certificates of Crown land title.

A certificate of Crown land title or subsidiary certificate of Crown land title is a title for a defined parcel of Crown land that guarantees that all current interests and tenures have been registered or recorded against it. A qualified certificate of Crown land title or qualified subsidiary certificate of Crown land title is a title for a defined parcel of Crown land that does not guarantee that all current interests have been registered or recorded against it. The validation or un-qualification process as it is known is the process by which a guaranteed Crown title (a certificate of Crown land title) is created and registered for a parcel of Crown land that was previously contained in a qualified certificate of Crown land title or had no title at all. 2.3.14.2.

HOW TO APPLY? Only the Minister for Lands can apply under the LAA and Part IIIB of the TLA to the Registrar for the creation and registration of a title for Crown land. (see section 29 LAA and section 91 l TLA) Any person with a registrable interest in a parcel of Crown land that is not already the subject of a validated certificate of Crown land title can make a written request to the Minister for Lands via the Manager of the relevant Regional and Metro Services region to have a CLT created for that parcel. Upon written request from an interest holder, the Minister for Lands may require the person responsible for the administration of that parcel of land, and each person having an interest in that Crown land to provide the Minister for Lands with: 

all available documentary evidence of the interest and of any other interest or status order in respect of that parcel of Crown land;



a plan of survey or sketch plan of that parcel in an approved form;



a statutory declaration stating all interests, status orders or caveats in respect of that parcel have been fully disclosed and that all documents, plans and other information provided are accurate and complete; and



such other information as the Minister requires.

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2.3.14.3.

VALIDATION REQUIREMENTS The validation process is discretionary. It is not an automatic right. The validation process for the creation and registration of a certificate of Crown land title requires the proving of documentary title by either: 

the registration of all current interests; or



the notification of all current interests by lodging an appropriate caveat claiming an interest in Crown land that has been approved by the Minister for Lands

so that a complete chain of title has been established to the satisfaction of the Registrar and/or Commissioner at the time a certificate of Crown land title has been created and registered. The process is similar to the current process for bringing land under the TLA under Part II of the TLA with modified requirements set out in Part IIIB of the TLA. It should be noted that where a certificate of Crown land title has been created and registered, the transitional period (refer to Paragraph 2.3.11.12) does not apply in relation to that parcel of Crown land. 2.3.14.4.

EVIDENCE REQUIRED BY THE REGISTRAR TO VALIDATE A QCLT The validation process is a discretionary one for decision by the Registrar of Titles who may refer it to the Commissioner of Titles on the merits. As a general rule, the current interest holders (being all parties with a current interest in the land, whether as lessor, lessee, sub-lessee, mortgagee etc) must produce the best evidence available to establish the validity of their respective interests. Essentially, this will require the production of the original executed and stamped documents evidencing the rights and interests claimed by the current interest holders. Generally, a statutory declaration will be required from every person who has a current interest in the land to verify the estates and interests claimed (see Paragraph 2.3.14.7 for the requirements of the Statutory Declaration). Where: 

the original stamped document executed before the commencement of the LAA cannot be produced; and



the interest holders have acknowledged by statutory declarations that they do not hold the original document and have not deposited the original stamped document with any other party as security by way of charge, lien or mortgage;

a duplicate copy (not being a photocopy) of the original document, which has been stamped and executed by all parties, may be accepted provided that the duplicate copy has dated before 30 March 1998, being the date of commencement of the LAA. For more information on the acceptance of Duplicate copies as Originals, see Paragraph 2.3.11.10. Where the Registrar is satisfied that: 

all registrable interests have been presented for registration or a caveat claiming those interests has been lodged; and



there is no dispute in relation to the respective priorities of those interests or caveats;

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the Registrar will create and register a CLT. If the Registrar is not completely satisfied that the above two criteria have been complied with, the Registrar may either refuse the application to create and register a CLT or refer the application to the Commissioner; section 81v TLA 2.3.14.5.

EVIDENCE REQUIRED BY THE COMMISSIONER TO VALIDATE A QCLT Under section 81w of the TLA, if an application to validate a Qualified certificate of Crown land title is referred to the Commissioner, the evidence required by the Commissioner will be at his or her discretion, and will vary from application to application. Notice of the application may also be required to be advertised in a newspaper circulating throughout the State or, in the relevant Local Government District. Where the Commissioner is not satisfied with the application, he or she may refuse the application or direct the Registrar to create and register a QCLT in cases where no title exists for the relevant parcel of Crown land. As each case is treated strictly on its merits, no guidance as to the evidence required can be given. However, it is suggested that Applicant/s need to provide the best evidence available and, where documents are unavailable, clear statutory declarations made under the Evidence Act 1906 to support their Application.

2.3.14.6.

ONLY CURRENT INTERESTS IN THE CHAIN OF TITLE WILL BE REGISTERED In order to register the current interest holder on a CLT, it must be established that the current interest holder has acquired a legal title to that interest. This can be achieved by clear evidence showing that each preceding interest holder (for example, an assignee of a leasehold interest) had also acquired a legal title to that interest. In every case, this can best be achieved by producing every original stamped document that is necessary to create the chain of title for each and every interest claimed against a parcel of Crown land. The documents that need to be lodged for registration in that chain are those documents that create the interest (for example, a lease) and the current holder of that interest (for example, assignment/transfer of lease). For more information on the Chain of Title, see Paragraph 2.3.15 titled “Identification of Chain of Title”.

2.3.14.7.

STATUTORY DECLARATIONS TO ESTABLISH THE CHAIN OF TITLE Generally, a statutory declaration made under the Evidence Act 1906 will be required from every person who has a current interest in the land to verify the estates and interests claimed (see examples listed below). The statutory declarations are required to: 

verify the completeness, currency and nature of the interests granted and created in respect of the document seeking to establish the current interest in land;



confirm that no amendments have been made to the document;



confirm no other subsidiary interests have been granted to another party;



confirm that the interest and document has not been used as security (for example, by way of charge, lien, mortgage etc); and



otherwise confirm that all documents provided are accurate and complete.

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By way of example, the statutory declarations will be required from the following specified parties in the following situations relating to leases granted by a management bodies with power to lease: 

Lease which has been granted by A (lessor) to B (lessee):



A simple statutory declaration will be required from A and B to confirm their respective interests.



Lease which has been granted by A (lessor) to B (lessee) and assigned to C (assignee/new lessee):



A statutory declaration will be required from A and C only.



Lease which has been granted by A (lessor) to B (lessee) and the whole of the land under the Head Lease and the full duration of the term under the Head Lease is subleased to C (sublessee):



If the sublease is for the full term of the Head Lease and is over the whole of the land the subject of the Head Lease, it is considered that a “de facto” assignment (or transfer) of the leasehold interest has occurred.



In this case, as in the second example above, a statutory declaration as to those interests will only be required from A and C.



Lease which has been granted by A (lessor) to B (lessee) and only part of the land under the Head Lease or only part of the term under the Head Lease is subleased to C (sublessee):



In this case, all parties still have an interest in the land and a statutory declaration will be required from A, B and C.



Other interests granted by a management body/agency:

In relation to interests in Crown land granted by a management body/agency with power to grant those interests, a statutory declaration will always be required from the management body/agency. Statutory declarations from parties other than the management body/agency may be required to substantiate the management body’s/agency’s records of the current lessee and other interest holders. A statutory declaration from the current interest holder will also confirm the possible existence of other subsidiary interests granted by or binding on that interest holder (which may not be known to the management body/agency) or other interests claimed by a third party. 2.3.14.8.

VALIDATION OF STATE LEASE OR CROWN LEASE INTERESTS Leases of Crown land can be divided into three (3) categories with each process to validate each category being slightly different. The three (3) categories of leases are: 

Pre-LAA leases of Crown land with a term of five (5) years or more;



Pre-LAA leases of Crown land with a term under five (5) years; and



Post-LAA State leases with a term of twelve (12) months or more.

Validating Pre-LAA Crown leases with a term of 5 years or more

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Leases of Crown land issued under the Land Act 1933 with a term of five (5) years or more have always been registered under the TLA and as such, are already subject to the indefeasibility provisions contained in the TLA. Based upon the simple fact that Crown leases are already registered under Part IIIA of the TLA, a review of records by staff should clarify there are no current unapproved requests for section 18 approvals. In this case, the Registrar will issue a validated CLT without the need to insist upon statutory declarations from all current interest holders. Validating Pre-LAA Crown leases with a term under 5 years Leases of Crown land issued under the Land Act 1933 with a term of less than five (5) years were administratively allocated Crown lease numbers. The administrative process was implemented to ensure that all leases of Crown land, whether over five (5) years or less were recorded in LANDGATE’s databases for searching purposes only. In light of this, these leases of Crown land can be mistaken for Crown leases because of the allocation of the Crown lease number. It should be noted that these Crown leases were not registered under the TLA and therefore, do not have indefeasibility of (guaranteed) title. In the case of all leases of Crown land with a term of less than five (5) years, the Minister for Lands must apply for a validated CLT and the normal validation process (as set out in Paragraph 2.3.14) will apply. Validating Post-LAA State Leases with a term of 12 months or more Section 81Q of the TLA provides that leases of Crown land issued by the Minister for Lands under the LAA (known as “State leases”) for any term of twelve (12) months or greater, will be registered under the TLA. Wherever possible, the Minister for Lands will apply for a CLT prior to granting a State lease as all interests affecting that land parcel of Crown land are usually clearly established. If the interests for that parcel of land cannot be validated, a QCLT will be created and registered and the State Lease will be endorsed against that QCLT. In such cases, the normal validation process will then be required at a later date. 2.3.14.9.

WHEN ALL EVIDENCE CANNOT BE SUPPLIED TO VALIDATE CROWN LAND In some cases, an interest holder may still request the Minister for Lands to apply for a validated CLT even though that interest holder is unable to present the best evidence possible to validate a parcel of Crown land. In such cases, a statutory declaration from the interest holder must be provided setting out, as clearly as possible, all relevant facts. Documentary evidence will be required where the proper and clear evidence is not available. This type of Application, similar to an Application to bring land under the TLA, will be forwarded to the Commissioner for his or her determination. The determination will be at the discretion of the Commissioner of Titles on the merits of the particular application.

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2.3.15.

IDENTIFICATION OF CHAIN OF TITLE

2.3.15.1.

GENERAL All lands alienated by the Crown in fee simple in Western Australia are held under a Torrens land title known as a certificate of title. The introduction of the LAA set up a Torrens system of land registration for Crown land (being land other than alienated land). A principle objective of the implementation of a single registration system for Crown land involves the creation of titles for all parcels of Crown land and identifying all interests associated with those parcels of land. Ownership of interests in Crown land was previously governed under the Land Act 1933 and previous Crown land statutes and there was no publicly accessible record or title for these interests. One of the more difficult aspects for the creation of a registration system for Crown land is identifying all interests in Crown land, their priorities and statutory tenures and converting them into a format that can be registered against a title for Crown land. ‘Title’ has two distinct meanings in dealings with Crown land: 

‘Title’ denotes “statutory ownership of tenure”. In other words, when we say that Joe Citizen has “title” to an interest in Crown land, we mean that Joe Citizen has been granted a right to use and occupy a certain parcel of Crown land subject to certain statutory conditions known contained in, for example, a “Crown lease” or “Pastoral lease”.



“Title” can also loosely be denoted as the various documents and agreements which go towards proving statutory ownership.

The sequence of this documentation that conveys interests from one party to another along a transaction trail is commonly known as the “Chain of Title”. To investigate a chain of title and create a Crown land title involves investigation by the Registrar of the validity of instruments, acts and events through which an interest holder claims tenure rights to, or interests, in a parcel of Crown land. A chain of title does not necessarily need to contain all the registrable original documents that make up all the interests that should be registered on a certificate of Crown title. For example, a Crown title may contain the registrable interests of a lease, two (2) sub-leases and a mortgage of one of the sub-leases. In this example, there are two (2) chains of title for this one parcel of Crown land: 

the lease, the mortgaged sub-lease, the mortgage; and



the lease and the remaining sub-lease.

Therefore, where proposing to register a document creating an interest, all documents preceding and relating to that particular interest must also be lodged for registration. For example, 

A mortgage of a leasehold interest will not be registered without also lodging the original executed and stamped lease that creates the interest being mortgaged;



Where the document being lodged for registration is the third interest in a chain of six registrable interests, only the previous two documents are required to be the subject of your transaction. If there is a Crown lease over certain Crown land that has been

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extended and sublet to you, then subsequently further assigned and mortgaged, only the Head Crown lease and Deed of Extension of Lease must be lodged with the sublease. It is not necessary to also obtain and lodge the subsequent interests, being the further Deed of Assignment of Lease and Mortgage. It is the responsibility of the lodging party to present the complete chain of title to register a document. A requisition will be issued in any instance where the lodging party does not present the complete chain of title. 2.3.15.2.

REGISTRATION OF CURRENT INTERESTS ONLY The only exception to the requirement of registering the complete chain of title is where preLAA documents (creating interests in Crown land) are lodged for registration. Normally, under the LAA regime, only current (or live) interests will be registered against a Crown title. However, to be able to register the current (or live) interests, the lodging party must also present the complete chain of original and stamped documents. The documents should be prepared in a registrable format creating the current interests, as evidence to establish the chain of title for the interest sought to be registered. The chain of title will, in many cases, contain original documents that are no longer current. For example, a lease may have been assigned/transferred six times from the date of the original head lease. In such cases, only the current interests such as the original head lease, which is the main interest that contains the lease conditions, and the last assignment/transfer of lease, which contains the details of the current lessee, need to be lodged for registration. If the complete chain of title cannot be presented as evidence to a current interest, the dealing will be referred to the Commissioner for a determination as to the validity of the “title” held by the lodging party. The Commissioner may issue a request for the production of such evidence as the Commissioner thinks fit before he or she is satisfied that the interest may be registered. It the Commissioner is not satisfied, then the interest may not be registered.

2.3.15.3.

VARIATIONS TO LEASES IN CHAIN OF TITLE A Variation of Lease forms one of the current interests in the chain of title and must be lodged for pre LAA interests. A Variation of Lease created and executed after 1 September 1999 should not vary the term, the area or parties of a lease or sub-lease (see Paragraph 2.3.11.6 for further information).

2.3.15.4.

USE OF ORIGINAL OR DUPLICATE DOCUMENTS IN CHAIN OF TITLE The chain of title for any pre-LAA document should be established by the lodgement and registration of the signed original document that has been stamped as the original document. In its absence, a signed duplicate original document that has been stamped as the duplicate document may be lodged in its place PROVIDED THAT the document was executed prior to the 30 March 1998 (see Paragraph 2.3.11.10 titled “Accepting Duplicate Original Documents as Originals” and section 81u of the TLA for further information).

2.3.15.5.

SURVIVORSHIP APPLICATIONS, COURT ORDERS ETC. The establishment of the chain of title may also require the production of other documents to establish a complete chain of title. For example, the Registrar or Commissioner may require the production of documents such as a Survivorship and Transmission Application from the current lodging party or relevant Court orders detailing a legally valid vesting of land before

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he or she is satisfied that all current interests have been clearly established to enable a valid conveyance of interests in Crown land. Interests that are not current, but form an essential part of the chain of title, may not need to be registered. However, all associated documents will be required to establish the valid conveyance of the chain of title. 2.3.15.6.

WHEN CHAIN OF TITLE CANNOT BE ESTABLISHED If, for any reason, the chain of title cannot be established to the satisfaction of either the Registrar or the Commissioner, the lodging party may consider lodging a caveat to protect that interest. The lodging of a caveat is an acceptable manner for establishing the chain of title in the validation/un-qualification of a QCLT (see Paragraph 2.10)

2.3.15.7.

COLLECTION OF AND PROVING THE CHAIN OF TITLE The collection of interests and evidence needed to establish a chain of title when a document creating an interest is lodged for registration is the responsibility of the lodging party or its agent. The Registration Services Branch in LANDGATE will not collect any portion of the chain of title for the interest holder or the lodging party. However, the Manager of the relevant Regional and Metro Services region may be consulted as to the use of original documents that may be contained on the correspondence files for interests granted under management orders.

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2.4.

POWERS OF THE MINISTER FOR LANDS

2.4.1.

GENERAL Section 2.2 covers the statutory basis of the LAA in relation to Crown land. The Minister for Lands is a body corporate that was established under the Land Act 1933 and continued in that capacity under the LAA. The general powers of the Minister for Lands relates solely to the administration of Crown land, with the exception of dealings in relation to freehold land that may be done under section 11 and Parts 9 and 10 of the LAA. Crown land administration and management under the LAA is undertaken by DoL. Many of the Minister’s actions are carried out under delegation by staff within this Directorate. Actions relating to Crown land or interests in Crown land undertaken by the Minister for Lands should be made in the name and on behalf of the State of Western Australia. Any actions entered into in relation to Crown land is made where practicable after consultation with the Local Government agency in which the Crown land is situated the management bodies and other statutory authorities that have had Crown land vested or dedicated under their Act for their use. The Minister makes decisions on Crown land. Where there are Ministerial decisions to change tenures and interests in Crown land, those decisions are effected by the preparation of a Ministerial Order that is then lodged with the Registrar of Titles under the TLA for registration. Ministerial Orders for the purposes of the LAA are not subsidiary legislation within the meaning of the Interpretation Act 1984 as is normally the case in other written law. Section 13 of the LAA clearly sets out the effect of Ministerial Orders created under the LAA.

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2.4.2.

DELEGATION OF MINISTER’S POWERS

2.4.2.1.

STATUTORY BASIS Section 9 of the LAA provides for the Minister’s powers to be delegated by writing to: 

DoL officers, whether by name or by position title



Persons or classes of persons prescribed in the Land Administration Regulations 1998.

The LAA also enables Ministerial powers to be delegated to non-DoL parties in two other provisions: 

Section 159 provides for delegation of powers under Parts 9 and 10 of the LAA by way of Notice published in the Government Gazette to Ministers specified in that section, with those Ministers then being able to sub-delegate under sestion160.



Section 273 provides for delegation of Ministerial powers and duties under section 270 or 271 to 

an employee of a local government;



an employee within the meaning of the Public Sector Management Act 1994; or



any management body or other person responsible for the care, control and management of a reserve. Delegations, and amendment or revocation of delegations under the LAA, are effected by instruments signed by the Minister and published in the Government Gazette. In addition to LAA powers, there is a range of other statutes the powers of which are delegated to DoL officers to facilitate government land administration. A register of delegated powers is maintained as a sub-set of the Policies, Procedures, and Rulings Database. Delegated powers are divided into “decision-making” and “processing”. There are legal opinions in relation to “alter ego” and “administrative” principles relate to the extent to which officers may exercise a Minister’s delegated statutory powers. Doubts are best removed by arranging specific delegations, even of processing powers to give effect to a senior delegated officer’s decisions. 2.4.2.2.

SAFEGUARDS ON DELEGATIONS Constraints on the exercise of delegated powers are specified in three areas – 

in the relevant written delegation instrument;



in the Land Administration Regulations 1998 (“Regulations”);



in related policies.

DELEGATIONS INSTRUMENTS Some of the Ministerial Powers delegated under certain provisions are subject to limitations. Examples include 

Section 74(2) – sales prices established by delegated officers in relation to Crown land must be within 90% of the Valuer General’s advice.



Section 161 (1)(d) – sales prices established by delegated offices in relation to surplus public works land must be within 90% of the Valuer General’s valuation.

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

Section 169 – prices negotiated by delegated officers for purchase of land for public works must not exceed 110% of the value advised by the Valuer General.

REGULATIONS The Land Administration Regulations 1998 impose the following constraints on delegations:

2.4.3.



Regulation 4: Delegations of sales powers are subject to a requirement for Valuer General’s advice on pricing (except as modified by Regulation.12), where the land is not being sold by public competitive process.



Regulation 12: Regard is to be has to the Valuer General’s advice as to pricing of Crown land for sale, except in relation to land in closed private roads and pedestrian access ways (under specified circumstances) and low value land in remote areas.



Regulation 13: Selection by joint venturers for development and sale of land must be by public process, except in relation to local governments, State government agencies and adjoining freehold landowners.



Regulation 14: Parties applying to purchase the freehold of land they are leasing under section 89, or an option to purchase such freehold, must comply with certain requirements.

CONSTRAINTS ON THE MINISTER’S POWERS Constraints are specified in the LAA itself in relation to the powers of the Minister for Lands to deal in Crown land. Restrictions are also imposed by other Acts. By way of example: 

Section 16(3) of the Mining Act 1978 requires that the Minister for Lands obtain the agreement of the Minister for Mines to any proposed disposition of Crown land. This provision has effect in relation to all Crown land, both above low water mark and seaward out to the State’s territorial limits.



The Environmental Protection Act 1986 and the Planning and Development Act 2005 also impose constraints, which require that DoL officers seek consents from the relevant agencies before dealing with Crown land.



Section 12 of the LAA requires the Minister to obtain the consent of any management body before dealing with land the subject of a management order.



Section 14 of the LAA requires the Minister to consult with the relevant local government, where practicable, prior to exercising any power under the LAA in relation to land.



Section 27(5) of the LAA requires the Minister to observe the requirements of the Planning and Development Act 2005 in relation to subdivisions of Crown land for particular purposes.



Section 45 of the LAA restricts the way in which Crown land the subject of the Conservation and Land Management Act 1984 may be dealt with.

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2.4.4.

CROWN LAND DISPOSITION

2.4.4.1.

GENERAL The State of Western Australia comprises a total land (ie., land above low water mark) area of 2,527,620 square kilometres, which is one third of the Australian continent. This figure does not include Crown land between low water mark and the three nautical mile seaward limit. As all freehold (alienated) land in the State represents some 7% of this area (or 182,400 square kilometres) DoL is responsible for administering to one degree or another approximately 93% of WA (as the Crown Estate) or 62% of all Public Land in Australia. “Public Land” is defined in this case to mean all Crown lands excluding land held by or on behalf of Aboriginal people or for Aboriginal purposes. PRIMARY TENURE TYPES DoL provides access to, allocates or administers the following primary land tenure types:

Fee Simple



Pastoral Leases



Conditional Purchase Leases



General Leases (including 99 year leases, 999 year leases, and roads leases)



Perpetual Leases



Reserves (including Mall Reserves)



Licences and Profits á Prendre



Easements



Roads and Public Access Routes



Unallocated Crown Land.

Dispositions of Crown land can only be made in accordance with specific powers under the LAA, or other legislation affecting Crown land. 2.4.4.2.

DETERMINATION OF APPROPRIATE TENURE The following principles guide DoL officers in determining appropriate tenure: 

The form of tenure must reflect both the value that the community places on a land parcel and the level of oversight the State should retain over the way in which the land is used or developed.



The land’s community value will be based on the inherent features and capability of the land, and not the operations carried out on the land.



Decisions on level of continuing oversight required should have regard for what the objective of oversight is, and best ways of retaining oversight to achieve that objective.



Freehold tenure is usually applied to land which is not required to be retained by the Crown under either reserve or leasehold tenure.

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

Crown leasehold tenure is usually applied to land over which the State wishes to retain oversight for strategic land planning or other reasons. The inherent community value of such land does not require the high level of protection offered by reservation, but the State needs to maintain a higher level of control over the current and future use of this land than is possible under freehold title. Often this land can be used by the private sector for purposes compatible with the land’s special values or sensitivities. Examples of where leasehold tenure is likely to apply include highly vulnerable land, land in a sensitive water catchment or land that readily degrades, or land of importance to possible future provision of infrastructure.



Reserve tenure is usually applied to land which because of its intrinsic community value should be preserved and maintained for the benefit of present and future generations. This is primarily because of its natural resources, its environmental, recreation, historical, social or cultural significance, or because it has special value for present or future generations. Examples include recreation reserves, national parks, conservation reserves, heritage areas and timber reserves.



Land warranting reserve or leasehold tenure may categorised as Community Land.



Operational Land may be categorised as land required for ordinary State or Local Government business or service delivery, and which has low intrinsic community (non-monetary) value.



Freehold is the preferred tenure for operational category land. Crown leasehold tenure is however retained as an option for operational land.



Control, not ownership, is the critical factor in determining whether an agency should pay for Crown land required for operational purposes.



Where an agency does not have statutory power to hold land in freehold, operational land may be reserved and placed under the agency’s management. Market value pricing will still apply, however.



Where agency B requires Crown land set aside for the operational purposes of agency A, agency B will pay DoL the unimproved market value of the land; funds then being appropriated by Treasury to agency A, if this is provided for under agency A’s Property Disposal Program.

In addition to these general policy guidelines, tenure will also be determined on the basis of relevant laws, referrals to other agencies, planning requirements, political considerations, and particular circumstances of each case. 2.4.4.3.

PRINCIPLES OF EFFECTIVE DECISION MAKING Effective decision-making is a critical component of responsible Crown land administration and protection of the relevant decision-maker and the department against liability. Chapter 11 (General) of this manual provides further information in relation to personal liability issues and the requirements of the LANDGATE Bulletin of May 1995 in relation to responsible decision-making. Effective decision-making relies on (i) the application of an officer’s knowledge of the legislation, policies and procedures set down by the department; (ii) an understanding of the concepts of administrative law (which includes natural justice, and the protection of the public interest); (iii) a common sense assessment of the facts of a case; and (iv) a client and business outcomes focus. HIERARCHY OF LAW AND INSTRUMENTS The hierarchy of law and instruments bearing on the exercise of powers in relation to Crown land consist of:

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

Common law - court decisions binding on the State in relation to dealings in Crown land, whether made by Western Australian courts or the Federal and High Courts (for example, the 1992 High Court decision of Mabo v Queensland (No 2) ). Common law may be modified by legislation.



Legislation including the LAA and other Acts of Parliament bearing on Crown land disposition.



Prevailing Commonwealth legislation, such as the federal Native Title Act 1993 and the federal Telecommunications Act 1993.



The Western Australian Constitution Act 1889 (in association with the related Imperial legislation).



The Land Administration Regulations 1988 and other regulations and local laws bearing on Crown land (for example, the Caravan Parks and Camping Grounds Regulations 1997).



Specific government directions and policies – for example, relevant Cabinet decisions, directions by the Premier or the Minister for Lands on particular issues, official polices of the government bearing on Crown land.



Approved Policies and Executive directives. Specific directions are also given from time to time by the Executive or by the Branch Manager and located on the Staff Notices, and the previous Divisional Minutes databases. It is important to note that policies, procedures, or other directions cannot conflict with the legal requirements of legislation or regulations.



Limitations imposed on delegations of power under the LAA and other relevant legislation.



Approved procedures. The Quality Management System and the procedures set down in this Manual describe the ways in which staff should proceed. Procedures set down in the Registration practice manuals also have an important bearing on correct processing of Crown land dealings.

ADMINISTRATIVE LAW Administrative law deals with rules to be followed by decision-makers in administrative actions and decision-making processes. Its objective is to ensure that decision-making is reasoned and consistent, and is not based on whim, prejudice or irrelevant considerations. Sound decision-making requires that issues including the following issues are addressed: 

The decision maker is lawfully authorised to make that decision. That means appropriate delegations are in place, including relevant legal and policy requirements have been met.



All relevant information is available and has been considered.



Procedural fairness requirements have been satisfied and relevant parties have been consulted.



All relevant aspects of a situation have been comprehensively considered.



The decision-maker is clearly identified, has made a clear, recorded decision based on the relevant, available information, and has done so logically and lawfully.



The decision is made independently and personally, except where there is a direction from a superior officer; and where given, such direction has been recorded.

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Decision-makers need to be prepared to have their decisions reviewed, whether through formal appeal process (where available), personal appeal to the Minister, Court process, or application under the Freedom of Information Act 1992 (FOI Act). Applications under the FOIA may show deficiencies in decision-making processes which could result in decisions being overturned, or other Court procedures.

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2.5.

CONTINUING INTERESTS

2.5.1.

PRE-LAA From the commencement of the Swan River colony, it was a clear principle that, unless there was a statutory provision to the contrary, Crown land must be free of encumbrances before it can be dealt with under the Land Regulations and later Land Acts. For example, this necessitated the surrender or cancellation of leases of reserved land when such a reserve was to be vested in another party or have its purpose changed. A 1982 amendment to section 34B of the Land Act 1933 provided a partial answer through preserving leases when vesting orders were revoked. Significant sales under agencies’ property disposal programs, in the 1980s and 1990s of Crown or reserved land affected by leases, highlighted the need for amendment to the Land Act 1933 to reflect the Property Law Act 1969 provisions in relation to freehold land (e.g. sections 75, 76, 77, 78), which secure leases when land is conveyed from one party to another. Such amendments were consistent with general principles already established by Land Act 1933 sections 34B(1) (in relation to leases of reserved land), 134F (allowing Land Act easements to subsist regardless of changes to head tenure) and 149 (carrying mortgages and other interests forward from conditional purchase leases and licences to a Crown Grant). The Land Amendment (Transmission of Interests) Act 1992 was designed to address a range of legal and practical problems identified by extensive review. It amended the Land Act 1933 by amending section 34B and including sections 37AA, 149A and 149B. The essential features of the Act comprised: 

Automatic preservation of interests upon revocation of vesting orders, cancellation of reserves, changes of a reserve’s purpose, or cancellation of a reserve’s dedication under another Act.



Registration of such interests, with reference to an “Internal Interests Plan” where there were multiple interests affecting the one reserve.



Adjustment of interests to external reserve boundaries and internal lease “boundaries” and a consequent “shuffling” of interests on a best possible fit basis.



Transmission of such interests (with the Minister’s approval) to Crown Grants over former reserved land.



Formal freehold subdivision of such land, with or without WA Planning Commission approval, and registration of interests against surveyed lots on a best possible fit basis (by reference to a “Revised Internal Interests Plan” identical to the subdivisional plan).

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2.5.2.

POST-LAA The continuing interests provisions of the Land Act 1933 have been integrated into the LAA and the Transfer of land Act 1893 (TLA). The provisions (with expansions) can be found in the following sections: LAA: 

10(3) and (4) – the Minister may exercise powers under the Act despite the existence of interests in the subject land, provided the interests are not adversely affected or the interest-holder consents. The interest-holder may also consent to the interest being extinguished.



22 – when a reservation is cancelled, or a dedication under an Act ceases, or a management is revoked, any interest in the relevant Crown land continues. The Minister may vary the terms of any continuing lease, with the lessee’s consent.



23 – the Minister may survey, resurvey or subdivide land subject to interests, with or without the interest-holder’s consent, and make “best possible fit” adjustments, without the need to pay compensation.



27 – the Minister may subdivide and develop Crown land, and with an interestholder’s consent, extinguish any interest existing on the subject land.



35(5), (6) and (10) – when forfeiting an interest, the Minister may exempt a sublease or caveat. If a sublease or caveat continues, the land may not be dealt with as UCL.



46(2) and (4) – the Minister may issue a management order over a reserve, even though that land is subject to an existing interest. The Minister may, with the consent of interest-holders, vary conditions of management.



50(4) and (5) – when a management order is revoked, the Minister, may specify that an interest continues; and may, with the interest-holder’s consent, vary the terms of a management lease so continued.



57(2) and 58(6) – if a lease has been granted under s.57 in relation to a road and the road is subsequently closed, the lease continues.



79(5) – where a lease is varied or has its term extended, any subsidiary interest continues to have effect.



81 – when a lease is surrendered, any subsidiary interest continues unless otherwise terminated at law.



82 – when revesting land in the Crown, the Minister may allow encumbrances to continue.



89(4) – when a lease is converted to fee simple, subsidiary interests are transferred to and apply to the fee simple.



146 – an easement granted under s.144 subsists, regardless of changes to the tenure of the affected land.



178(2) and 179 – a taking order may provide that specified interests are preserved, and that specified interests are to be disposed of in particular ways.

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

281(2); Schedule 2 (Transitionals and Savings) 

Clause 43 – procedures commenced under sections 149A or 149B of the Land Act 1933, but incomplete as at the LAA’s commencement, may be completed under the repealed provisions.



Clause 45 – these are provisions similar to those previously found in sections 149A and 149B of the Land Act 1933, and have to do with requiring management bodies and interest-holders to provide information in relation to interests in Crown land, for the purposes of registration.

TLA: 

81Q(2) and (3) – when the fee simple of leased Crown land is issued, any registered subsidiary interests under that (former) lease continue to be registered.



124 – mortgages or other encumbrances in existence over land at the time it is brought under the operation of the TLA may be dealt with in accordance with the provisions of the TLA.



166A and 166B – Crown land may be subdivided by sketch plan, with new certificates of Crown land title being issued for the new lots. Subsidiary certificates of Crown land title may be registered in respect of one or more interests in Crown land.

Staff should be familiar with these provisions when considering various tenure changes under the LAA. Decisions will be required in many instances on whether particular interest should continue; whether consents are required to tenure changes; and how issues of administrative fairness in decision-making should be satisfied when determining that an interest should not continue.

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2.6.

POSITIVE AND RESTRICTIVE COVENANTS

2.6.1.

GENERAL Section 15 of the LAA provides for the creation and registration of restrictive and positive covenants (section 15 covenants) on Crown land and “agreement land”. “Agreement land” is land that is the subject of an agreement between the Minister for Lands and a transferee/purchaser in which the transferee/purchaser agrees to the Crown land being transferred in fee simple to it subject to the section 15 covenants. A number of issues have been raised in relation to the application of this section to current and potential dealings. As a result, there has been a review of the provisions of the section in the context of: 

the agreement to be entered into by the Minister for Lands; and



the registration of section 15 covenants on the CT or CLT/QCLT.

A summary of the principles and policies that have been developed are set out in this Paragraph, which DoL officers should apply when involved in the creation or registration of section 15 covenants. DoL officers should not enter into an agreement, or sign a transfer or Ministerial order that contains section 15 covenants without first having obtained relevant legal advice. In all cases, due consideration must be given to any native title issues in relation to the creation of the section 15 covenants.

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2.6.2.

CREATION OF SECTION 15 COVENANTS The person who may have the benefit of the section 15 covenants, known as “the covenantee”, may be the Minister for Lands, a State instrumentality, a local government body or a prescribed person. As at 30 September 2001 no person has been prescribed in the Land Administration Regulations 1998. From the date of Royal Assent of the Land Administration Amendment Act 2000 (being 7 December 2000), the Minister for Lands can now also be the covenantor of section 15 covenants. Although the Minister now has the power to grant covenants over Crown land, it is unlikely that the Minister can confer this power on a Management Body in a Management Order, as section 46(3) of the LAA only relates to the power to grant a lease or sublease or sublicence over Crown land. A covenant is none of these. Consequently, a Management Body cannot grant a covenant (that is be the covenantor) over a reserve under its care, control and management. The section 15 covenants may relate to any of the matters in section 15(4) of the LAA (which only applies where the Minister for Lands is the covenantee) or section 15(7) of the LAA (which applies to all of the possible covenantees). Holders of lesser interests in Crown land (for example, lessees) can therefore create section 15 covenants, to the extent of their interest in Crown land. This will require the Minister for Lands’ prior approval under section 18(1) of the LAA, which should only be given subject to the removal of any inconsistencies between the term of the covenants and the lesser interest out of which it is being granted (for example, the lease) and if necessary, the registration of a variation (for example, of the lease). In the case of section 15 covenants created over Crown land, these must be created by an order of the Minister for Lands, registered on the CLT/QCLT: section 15(3)(a) of the LAA. In the case of section 15 (3) of the LAA covenants relating to “agreement land”, the agreement: 

must be entered into by the Minister for Lands, even if the covenantee is a third party/another person (for example the local government) – it is not necessary for the covenantee to be a party to the agreement. It would be preferable for the covenantee to be a party but, if this is not possible, the covenantee’s written acknowledgement and agreement to the terms of the covenants should be obtained (for example by letter);



must set out the actual terms of the section 15 covenants;



must be entered into BEFORE the land is transferred in fee simple to the transferee/purchaser (for example as part of the sale contract or auction conditions); and



must deal with the order of priority of registration of any existing encumbrances or other encumbrances to be registered at the same time as the transfer.

For example, if there is an existing lease of the Crown land to some person other than the transferee/purchaser, the question should be asked - is the lease to come forward in priority to the section 15 covenants or, must it be surrendered and re-registered after the section 15 covenants are registered? Similarly, if a mortgage is to be registered on the CT immediately after registration of the transfer, the question should be asked - are the section 15 covenants to be registered before the mortgage? In most cases it will be appropriate for the section 15 covenants to be registered first in priority. If they are not, then the prior encumbrancers’ consent to the creation and registration of the section 15 covenants should be obtained (see Paragraph 2.6.3).

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2.6.3.

REGISTRATION OF SECTION 15 COVENANTS Section 15 covenants are registered over Crown land by registration of an Order made by the Minister for Lands. Such covenants need only be registered against the land burdened. Sections 15(3)(c) and 15(6)(b) of the LAA indicate that the benefit of the covenants may be annexed to land in which the Minister for Lands or covenantee has an estate or interest, but that this is not necessary. In other words, the section 15 covenants may be in gross, or in favour of specified land (that is, in favour of a dominant tenement). The new section 15(15) of the LAA allows for covenants registered against Crown land to be brought forward onto the certificate of title when the land is transferred in fee simple. Section 15 covenants are registered over “agreement land” (that is, land that has been transferred in fee simple from Crown land, by the Minister for Lands) by: 

creation of the section 15 covenants on the Transfer document itself (to be signed by the Minister for Lands and the transferee in the usual way); or



creation of the section 15 covenants in a Deed (that is, on blank instrument form) (to be signed by the registered proprietor of the fee simple – it is not essential that the Deed is signed by the Minister for Lands or other covenantee, but they may do so).

As to “agreement land”, there may be, but need not be, a dominant tenement to which the section 15 covenants relate (that is the section 15 covenants may be in gross or in favour of specified land). As section 15(9) of the LAA is unclear as to whether indemnities need to be expressed in the covenant in order to apply upon registration, or whether they arise on registration in relation to any matter contained in the covenant, it is preferable for the indemnity to be expressed in the section 15 covenant itself to ensure that they do apply upon registration. The covenant, when registered, constitutes a charge on the relevant land (see section 15(9)(b) of the LAA). The provisions requiring encumbrancers’ consent to the creation of section 15 covenants are inconsistent, but are as follows: 

in the case of positive covenants only created over Crown land in favour of the Minister for Lands only – the consent of the holder of an interest, the management body or other person affected by a status order and any caveator;



in the case of positive covenants only created over “agreement land” in favour of the Minister for Lands only – the consent of the holder of the freehold (this would be provided by the transferee/purchaser having signed the prior agreement).

As a matter of practice and consistent with normal registration practice (especially given the possible application of section 129A of the TLA, to any restrictive covenants that are being created), the consent of all prior encumbrancers (including management bodies in the case of Crown land) should be obtained in all cases, whether or not the covenants are restrictive or positive and whether they relate to Crown land or “agreement land”. Section 15 covenants may now be brought forward as an encumbrance from the CLT/QCLT for Crown land on to the CT for freehold land, by suitable endorsement in the encumbrance panel on the transfer. The principles and policies applicable to section 15 as set out above is open to review as different circumstances may arise.

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If any DoL officer is unsure as to the application of these principles and policies or consider that they are inapplicable in any particular situation, the matter should be referred to the Commissioner of Titles, Deputy Commissioner of Titles or a legal officer for consideration. Where any member of the public has difficulty with these principles and policies, or believes that a particular situation warrants a different interpretation, the matter should be referred to a private legal practitioner for advice and assistance in the preparation of any section 15 covenant. Legal advice and assistance on this issue from DoL persons is not available to members of the public.

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2.7.

MEMORIALS Section 16 of the LAA empowers the Minister for Lands to lodge a memorial to secure the due performance of certain conditions as to use in a transfer of the fee simple interest in Crown land that has been transferred under section 75 of the LAA. When a certificate of title is created for conditional tenure land, the Minister for Lands will lodge a memorial under section 16 of the LAA to secure the due performance of other conditions imposed upon the registered proprietor of the land. The approved form of memorial used is Form LAA-1024 (Memorial of Covenant Charge). Please note, forms are to be completed by DoL staff only, however examples of completed forms are available on DoL’s website for information purposes only). The memorial, when registered, is a charge on the land for the benefit of the Minister for Lands (see section 16(2) of the LAA). If default is made by the registered proprietor in respect of the performance of any of the conditions set out in the memorial, the Minister has the same powers of sale as are given by the TLA to a mortgagee under a mortgage where default has been made in the payment of any moneys under the mortgage. If the charge over the land is no longer required, the Minister may, by order, request the Registrar of Titles to withdraw the memorial using Form LAA-1061A (Removal of Conditions from Freehold Conditional Tenure (with cancellation of memorial)). Please note, forms are to be completed by DoL staff only, however examples of completed forms are available on DoL’s website for information purposes only). These memorials serve to: 

prevent the registration of any dealings or other instruments (that is, act in a similar manner to an absolute caveat); and



give notice of its contents to those concerned with the land.

No fees are payable upon the lodgement or withdrawal of section 16 memorials.

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2.8.

WARNINGS OF HAZARDS AND OTHER FACTORS THAT AFFECT THE USE OR ENJOYMENT OF LAND Section 17 of the LAA is similar to section 70A of the TLA and section 12A of the PDA. All these sections enable a record of conditions, being more particularly hazards or factors affecting the use or enjoyment of land to be endorsed on a title for land. When the Minister for Lands has applied for the creation and registration of a freehold certificate of title, the Minister may, with the consent of the registered proprietor, have that title endorsed with a statement warning of hazards and other factors that may affect, or are likely to affect, the use or enjoyment of that land, for example: flooding. The form of endorsement is a memorial under section 17 of the LAA. The approved form used is Form LAA-1025 (Memorial of Statement under Section 17). Please note, forms are to be completed by DoLstaff only, however examples of completed forms are available on DoL’s website for information purposes only). Also, when an interest in Crown land has been or is to be granted, the Minister for Lands may have the relevant CLT endorsed with the same statement by lodging a memorial in the approved form under section 17 of the LAA. These memorials serve to give notice of its contents to any person searching the Register. The memorials do not prevent the registration of any dealings, but must be shown in the Limitations, Interests, Encumbrances and Notifications panel in a Transfer document. The Minister may, by order, request the Registrar of Titles to withdraw any section 17 memorial. No fees are payable upon the lodgement or withdrawal of section 17 memorials. The Minister of Lands also has standing as a “public authority” to lodge notifications over Crown land under section 70A of the TLA.

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2.9.

APPROVAL OF THE MINISTER UNDER SECTION 18 OF THE LAA

2.9.1.

GENERAL The Land Administration Amendment Act 2000 amended section 18 of the LAA. The amendments provide that the prior approval of the Minister for Lands is required to all transactions relating to interests over Crown land with certain exceptions set out in section 18(8) of the LAA. If appropriate approval is not obtained, the transaction is void. Regulation 17B of the Land Administration Regulations 1998 should also be noted. This regulation provides that, despite section 18(8) of the LAA, the granting of any lease, licence or sub-licence under the Local Government Act 1995 in relation to Crown land under local government management or control requires the prior approval of the Minister for Lands. Ministerial approval is not required where the interest is being granted, created or otherwise dealt with: 

if the land was vested, set aside or declared under another Act and the grant or other dealing is authorised under that other Act – section 18 (8)(a);



under another Act except for any prescribed Act (for example, the Local Government Act 1995 prescribed by regulation 17B of the Land Administration Regulations 1998) – section 18 (8)(b);



under a State Agreement, where the Minister for Lands approval was not required by section 143 of the Land Act 1933; and



under a management order, where the Minister for Lands’ approval is not required by virtue of the terms of the Management Order or the operation of section 46 of the LAA.

In relation to the last point, it should be noted that section 18 approval is not required in relation to dealings under management orders issued to Ministers or government agencies and corporations, unless the management order specifies that the Minister’s consent is required (see sections 18(8)(d) and 46(3b)). There are a number of transitional provisions set out in the Land Administration Amendment Act 2000 that are important (see note 4 of the LAA). These transitional provisions provide that: 

If a transaction required prior Ministerial approval under the LAA before 10 April 2001 (when the Amendment Act 2000 was proclaimed), and that transaction still required Ministerial approval under the Amendment Act 2000, then, that transaction must be approved within 12 months from 10 April 2001. This may be prior or post approval.



If a transaction required prior Ministerial approval under the LAA but did not require any approval after the Amendment Act 2000 came into force, then no Ministerial approval is now required.



If a new grant is made or a transaction entered into after 10 April 2001 which required prior Ministerial approval (under both the LAA and the Amendment Act 2000), that “prior” Ministerial approval may still be given within 12 months from 10 April 2001.

It should be noted that the first and third dot points allow a period of 12 months grace for pre- and post-LAA Amendment Act 2000 dealings in Crown land so that post ministerial approval can be given to transactions that would normally require prior Ministerial approval.

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There are a number of other sections in the LAA that require the prior approval of the Minister for Lands to deal in land. These additional sections are: 

Section 75(5);



Section 134(1); 7



Section 172(2); and



Section 178(5)

and are covered in the relevant Paragraphs . DoL is responsible for the administration of Crown land and may either: 

recommend to the Minister for Lands that a transaction be approved, or;



where the Minister has delegated powers, provide Minister’s approval if appropriate or decide not to recommend Ministerial approval to a transaction.

RSB is responsible for the registration and recording of all land-related documents. Documents pertaining to Crown land are examined for accuracy and eligibility for registration, which includes ensuring that prior approval from the Minister for Lands has been granted. Prior approval in writing for the purposes of section 18 of the LAA means that a document, or other evidence to support a caveat, to be lodged at LANDGATE has been given approval prior to the execution, dating and stamping of the document or other evidence.

2.9.2.

WHAT IS AN INTEREST IN CROWN LAND? Section 18 approval can only be given to transactions relating to interests over Crown land. The LAA defines an “interest” in relation to Crown land in section 3 as follows: "interest", in relation to Crown land, means, except in Parts 9 and 10, charge, Crown lease, easement, lease, mortgage, profit á 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 

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



Caveat;



Licence; or



mining and petroleum right (including mining leases).

For the purpose of Parts 9 and 10 of the LAA, the definition of “interest” is much wider. It means any legal or equitable estate in land including:

native title rights and interests;



interests or rights created under any written law; and



the rights of a management body under a management order.

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2.9.3.

WHAT CONSTITUTES PRIOR WRITTEN APPROVAL? Written approval under section 18 (and all other sections of the LAA that require approval) only authorises a person to undertake the particular Crown action under the LAA. Prior written approval given under section 18 (or other corresponding sections) of the LAA does not constitute approval of the registrability of the documents relating to that transaction nor that the document itself complies with the legal and registration requirements. Parties to a transaction or dealing must ensure that all documents prepared for the transaction complies with the legal requirements of all Acts including, and in particular, the PDA and the TLA in respect of all registration requirements. Section 18 approval will, in most cases, be given to a prepared, unexecuted and unstamped dealing/instrument with prior management body consent (as required under section 12 of the LAA). This is known as “in-principle” approval under section 18 of the LAA. This is particularly relevant for a lease where all conditions, terms etc must be known before approval can be given. However, there are instances where written section 18 approval can be given where the whole document is not presented. Examples may be: 

where a Transfer of Lease form is used and it refers to the lease document itself. Where there is no variation in the conditions in the lease, the Transfer of lease may be approved under section 18 provided the Lease document itself is a registered document.



Where the agreement relates to the beneficial ownership of a joint venture housing agreement (for example Caveat H5581). In this case, the granting of a joint venture housing agreement is not necessarily an interest in land. However, it can be argued that it relates to the ability to grant interests in land for which section 18 approval is potentially appropriate in that particular case.

Where it is unclear as to whether section 18 approval should be given to an interest or approval to deal on an interest in Crown land, the transaction should be referred firstly to the Manager of the relevant Regional and Metro Services region and then, if necessary, to a legal officer in DoL for consideration If additional information is required, section 18(5) of the LAA provides that the Minister may, before giving approval require, in writing: 

an applicant for that approval to furnish the Minister for Lands with such information concerning the transaction as the Minister requires;



a statutory declaration verifying the information provided above.

Written approval can be given by the Minister or his or her delegate in two forms: 

A letter or fax on a DoL letterhead to an in-principle transaction.

The Minister for Lands’ approval for a transaction sought prior to the preparation of a final document should be addressed to the Manager of the relevant Regional and Metro Services region by letter or fax. A copy of the entire draft document (not just the cover page), or other evidence should be included with the letter or fax. If the transaction is acceptable, an in-principle approval letter will be posted or faxed to the requestor. DoL officers should note that a photocopy of the whole of the “in-principle” approved document must be retained on the relevant file with a copy of the “in-principle” approval

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letter. This will ensure that the lodged document and the approved document to which the “in-principle” approval was given can be compared to check they are identical. A copy of the in-principle approval letter or fax must be included with the document or caveat when lodged with LANDGATE for registration. At this time, the document will be checked for compliance with the in-principle approval and stamped by RSB or DoL with the section 18 LAA approval stamp. If there is some concern as to the acceptability of a document receiving final section 18 approval, the final document should be produced to the Manager of the relevant Regionald and Metro Services region. 

An official stamp indicating Ministerial approval under section 19 of the LAA may be affixed to the document or other evidence signed on behalf of the Minister for Lands or by a delegated officer.

The endorsement of the Minister for Lands’ approval on documents or other evidence requires the production of the actual document or evidence to the Manager of the relevant Regional and Metro Services region, in person, or by post. The appropriate delegate in DoL will affix the Minister for Lands’ approval on the document or evidence provided by way of official stamp, or will request further information concerning the transaction. If further information is requested, that information must be verified by statutory declaration.

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2.9.4.

CHECKLIST OF MATTERS THAT SHOULD BE CONSIDERED WHEN A REQUEST IS MADE FOR APPROVAL UNDER THE LAA A preliminary checklist of some of the issues to be considered by parties preparing documents that need to be registered include some of the following: 

Determining whether the transaction requires Minister’s approval under section 18 of the LAA, or whether such requirement has been excluded by section 8(8) of the LAA.



Ensuring that a document: 

sets out the full and correct land description (lot on plan number).



is prepared using an approved form of cover sheet.



where it affects only part of a lot, an appropriate reference to a deposited plan created for the portion affected is made, or alternatively a sketch supplied with the document. The sketch should show sufficient dimensions and be linked to the cadastral boundary of the lot. The sketch area affected should be “stippled” or “hachured” and not “shaded” or “coloured”.



clearly states the nature of the interest being granted.



if a lease, states the commencement date and length of term of the lease.



includes lodging details and issuing instructions if duplicate documents are to be returned to someone other than the lodging party.



clearly identifies the parties involved.



where a sublease, specifies the term of the sublease and rental.



Recognising that assignments of lease are no longer acceptable and such transactions must be in the form of a registrable transfer of lease.



Ensuring that the parties in a document are correct for the purposes of maintaining the chain of title of prior approved dealings over an interest in the land. For example, if approval is sought for a mortgage of a leasehold interest, make sure the current approved lessee is the mortgagor on a mortgage document. If not, the mortgage cannot be registered without the prior transfer of that leasehold interest.



Ensuring that a dealing is not over an expired lease, or does not relate to an expired interest in Crown land.



Unlike the requirements for freehold land, WAPC approval is not required for leases over 10 years where the lease is over part of a land parcel of Crown land or for leases over 21 years where the lease relates to a building or portion of a building on Crown land.



Ensuring that any Deposited Plans referred to have been placed or are ready to be placed in order for dealings with the Registration Services Branch of LANDGATE.



Ensuring that the consent of the relevant management body/agency has been received in compliance with sections 12 and 14 of the LAA.



Ensuring that the land is not subject to a notice of intention to take (NOITT). If it is, Ministerial approval under section 172 of the LAA must also be obtained.



Determining that the “basic” registration requirements are considered in the content of the interest. For example, a variation, extension or transfer of lease cannot include additional land into the lease. Where additional land is included, a new lease for the additional land should be granted.

DoL officers reviewing documents for the granting of section 18 approval should, in addition to considering the above issues, check the relevant file and Crown title (if one has issued). A new and updated tenure search should also be undertaken.

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2.10.

CAVEATS LODGED OVER CROWN LAND

2.10.1.

GENERAL Caveats over Crown land may be lodged with the Registrar of Titles under Part 5 of the TLA. However, unlike caveats lodged in respect of claims against freehold land, caveatable claims against Crown land are regulated by section 20 of the LAA. Section 20 of the LAA effectively replaced section 152 of the Land Act 1933: “20(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; or

(b)

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

(c)

an interest referred to in section 18(8).”

Section 20 was amended by the Land Administration Amendment Act 2000 to allow for lodgement of caveats in relation to interests in Crown land that had not been approved by the Minister under section 18 of the LAA, where such approval is not required. The LAA, unlike the TLA, is very specific as to when a caveat may be lodged against Crown land. A caveat over Crown land can only be lodged with the Registrar: 

to protect a registered interest, or



directly against the Crown’s radical title where there is an unregistered interest approved by the Minister for Lands under section 18 of the LAA.

It should be clearly noted that caveats over Crown land can only be lodged in respect of an “interest in Crown land” approved by the Minister for Lands, or, in relation to an interest in Crown land which does not require the approval of the Minister under section 18 of the LAA. A caveat is not registered on the title to the land. It is simply noted on the title.

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2.10.2.

WHAT IS A CAVEAT? A caveat over land, whether it is Crown or freehold land, only provides a “caution or warning” that there is a claim of an interest in land by a caveator. It does not prove that the interest claimed exists or is valid. A caveat is effective from the time of lodgement. A caveat confers no proprietary interest in itself. It has a two-fold effect until removed: 

It gives notice of the claim by a caveator of an unregistered interest in the land or, in the case of section 20(2)(a) of the LAA, a registered interest in the land.



It prohibits the caveator’s interest described in the caveat from being defeated by the registration of a dealing either conditional on the continuation of the caveator’s claim (subject to its claim) or, where the caveat is absolute, without the caveator having first had the opportunity to invoke the assistance of a Court to give effect to the caveator’s claim and substantiate his/her interest.

As with caveats over freehold land (set out in Paragraph 4.30 of the Land Titles Registration Practice Manual), provided a caveat: 

is in a form approved by the Director General of DoL,



sufficiently identifies the land sought to be affected, and



claims a registered or unregistered interest in Crown land that has been approved by the Minister or is exempt for approval under section 18 of the LAA,

then it will generally be accepted for entry onto the Register. As with freehold land, the Registrar of Titles does not decide whether or not the interest claimed in the caveat is valid. The Registrar simply records the caveat against the affected title if the caveat complies with the requirements of form, and the evidence lodged with the caveat, supports the claim. A caveat over Crown land may however be rejected by the Registrar, for example where section 18 approval has been given to a dealing that clearly lacks legislative basis. In this regard, the Registrar is still not considering the legal effect of the caveator’s claim. The Registrar is only complying with section 20 of the LAA. As provided under section 137 of the Transfer of Land Act 1893 (TLA), the Registrar may however require the lodgement of a statutory declaration stating the nature of the estate or interest claimed. If such declaration is lodged within seven days of the date of the requisition and satisfies the requisition, the Registrar will accept the caveat. If the statutory declaration is not received in time (being 7 days from the date of the requisition), then the caveat is absolutely null and void. Subsequently if a circumstance arises requiring the removal of a caveat under section 138 of the TLA, the registered proprietor may summon the caveator to appear before the Supreme Court or a Judge in Chambers to show cause why a caveat should not be withdrawn. Caveats lodged by or on behalf of, or with the consent of, the Minister cannot be removed by the proprietor of land applying to the Registrar of Titles to serve a 21-day notice to the caveator under section138B of the TLA. Section 140 of the TLA provides that a caveator lodging a caveat without reasonable cause shall be liable to pay such compensation for damages caused.

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2.10.3.

WHO IS THE REGISTERED PROPRIETOR FOR CAVEATS OVER CROWN LAND? A registered proprietor in relation to a caveat over Crown land, subject to the particular circumstances, can be any of the following persons: 

The “State of Western Australia”;



The holder of a registered interest in Crown land;



A management body empowered under the LAA to grant or enter into interests in Crown land, or



a management agency with power to deal in Crown land under its own Act,

whose name appears in the Register as the holder of that interest in Crown land. 2.10.3.1.

REGISTERED PROPRIETOR (STATE OF WESTERN AUSTRALIA) The State of Western Australia, otherwise known as the “Crown”, is always the registered proprietor of a parcel of Crown land and can be shown in a caveat as the registered proprietor. However, the State of Western Australia should only be shown as the registered proprietor in a caveat when the claim made by the caveator relates to an interest in the land that was issued by the Minister for Lands on behalf of the State of Western Australia. For example, a caveat lodged to protect a contract of sale entered into by the Minister for Lands to convey a freehold interest in land or a caveat to protect a lease granted by the Minister for Lands where the lease term is greater than 12 months.

2.10.3.2.

HOLDER OF A REGISTERED INTEREST IN CROWN LAND The holder of a registered interest in Crown land may be shown as the registered proprietor in a caveat of that land. For example, if a caveat is to be lodged in respect of a leasehold interest whether granted by the Minister for Lands or a management body or agency, the current lessee should be entered in the caveat as the registered proprietor. The land description of the caveat must refer to the registered interest. For example, “As to Lease X111111 Only”. A caveat can be lodged showing the holder of an interest in the registered proprietor panel of the caveat in two (2) instances. These are:

2.10.3.3.



To protect an interest arising out of an interest approved by the Minister for Lands under section 18 of the LAA but not registered. For example, to protect a mortgage approved by the Minister for Lands over a registered and approved management body lease; and



To protect an interest arising out of a registered interest. This may occur for example, where a duplicate original lease is lost.

MANAGEMENT BODIES A management body may be a designated entity, person, agency or company with perpetual successor to whom the care control and management of a reserve have been placed by a management order issued under section 46 of the LAA. Management bodies usually include local governments, State government authorities and incorporated bodies. A management body should be shown as the registered proprietor in a caveat, where the claim is against an interest issued by that management body.

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Examples of caveats lodged where a management body is shown as the registered proprietor may be as follows:

2.10.3.4.



To protect an interest issued by a management body and approved by the Minister for Lands under section 18 of the LAA but not registered. For example, to protect a management body lease approved by the Minister for Lands but not registered;



To protect a secondary or sub-interest arising out of an interest issued by an interest holder and approved by the Minister for Lands under section 18 of the LAA and the management body but not registered. For example, to protect a mortgage approved by the Minister for Lands over an unregistered but approved management body lease.

MANAGEMENT AGENCIES There are numerous management agencies administering and managing Crown land under other State legislation that are not yet shown to be registered against a Crown title. Management agencies are not the same as management bodies under the LAA. Such management agencies are vested with Crown land management responsibilities under their own legislation, by direction or proclamation by the Governor. The vesting in such cases takes effect under that legislation upon gazettal of the Governor’s proclamation in the Government Gazette rather than upon registration. In such cases, the management agency must be shown as the registered proprietor in the appropriate panel of the caveat form even if it is not yet endorsed as such on the Crown title. For further information on registration of interests created by such management agencies see Paragraph 2.3.13. Examples of management agencies that are created under other legislation include: 

Minister for Transport;



Westrail;



CALM; and



All Port Authorities.

An endorsement noting the administration and management by another agency under other State legislation will be recorded in the First Schedule of the Crown title. This notation may not be endorsed on the Crown title at the time of lodgement of the caveat.

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2.10.4.

NATURE OF A CAVEATOR’S CLAIM As in the case of freehold land, a caveator can restrict dealings by the registered proprietor in three different ways: 

Absolutely;



Until after notice of any intended registration or dealing to be given to the caveator; and



Unless such instrument be expressed to be subject to the caveator’s claim (known as a subject to claim caveat).

Information about these three different types of caveatable claims is set out in Paragraph 4.1.8 of the Land Titles Registration Practice Manual.

2.10.5.

INTERESTS IN CROWN LAND CAPABLE OF SUPPORTING A CAVEAT As a general rule, a caveator’s claim should arise through some dealing with the registered proprietor. Where the caveator is not dealing directly with the registered proprietor, the caveat must clearly recite the step-by-step events that tie the caveator to the registered proprietor and the land. Where the claim arises out of rights under an easement or restrictive covenant, such claim must be made by or through the proprietor of land appurtenant to the land against which the caveat is lodged. The documentary evidence supporting the caveatable claim must be signed by the proprietor of the interest against which the caveat is lodged or by his or their duly appointed representative. That documentary evidence must also be stamped at the State Revenue Department (Stamp Duties Division) in accordance with the Stamp Act 1921.

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2.10.6.

CAVEATS CAN BE LODGED UNDER SECTION 20(2) OF THE LAA

2.10.6.1.

A REGISTERED INTEREST Subsection 20(2)(a) of the LAA enables a caveat to be lodged against Crown land in respect of a registered interest. Where a registered interest exists, the interest itself may be caveated. Sub-interests may be caveated where, for example, a duplicate lease is registered in place of the original and the lessee has no security document or due to marital problems. A caveat may also be lodged to protect an equitable mortgage in respect of a registered lease.

2.10.6.2.

AN INTEREST APPROVED BY THE MINISTER UNDER SECTION 18, BUT NOT REGISTERED Subsection 20(2)(b) of the LAA states that a caveat can be lodged in respect of an interest approved by the Minister under section 18, but not registered. 

Interests to be granted under the LAA

Although a document relating to an interest in Crown land may not have been drafted, section 18 approval under the LAA may be given before the creation of such a document where the nature and terms of the proposed transaction are clear (for example, a transfer from A to B of a lease over a reserve). For example, section 18 approval under the LAA for the purposes of satisfying the requirements of section 20(2)(b) of the LAA may be given to such as a contract of sale or option to purchase. 

Interests granted or entered into by Management Bodies

With interests granted or entered into by management bodies (as defined in the LAA), DoL officers should note that section 18 approval under the LAA should in most cases be given only to a prepared and unexecuted dealing/instrument (document that when registered creates, effects, cancels or alters interests) that has also received prior management body consent (where required). This is particularly relevant for a lease where all conditions, term, etc. must be known before approval can be given. The legal ability to accept an agreement as evidence for the purposes of a caveat over Crown land under section 20(2)(b) of the LAA is not always clear. The agreement may not strictly be an interest in itself. The parties to the agreement may however have some difficulty in understanding why LANDGATE’s Registration Services will not accept a document stamped with Minister’s approval as evidence to a caveat. Section 18 approval under the LAA by the Minister does not validate a transaction. Where there is any doubt, the matter should be firstly referred to the Manager of the relevant Regional and Metro Services region, and, where necessary, to a legal officer in DoL for determination. 

Interests entered into under the repealed Land Act 1933

Under item 40 in Schedule 2 of the LAA, provided a pre-LAA interest has received the appropriate approval under section 143 of the Land Act 1933, the interest can become the subject of a caveat. If approval of a document transferring, mortgaging or subleasing a lease or licence made under the Land Act 1933 was not given under section 143 of that Act, approval under section 18 of the LAA may be given. 2.10.6.3.

AN INTEREST REFERRED TO IN SECTION 18(8) OF THE LAA Subsection 20(2)(c) of the LAA provides that the approval of the Minister for Lands is no longer required if a caveat is being lodged in respect of an interest defined by section 18(8) of the LAA.

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2.10.7.

WHAT CONSTITUTES AN “INTEREST” FOR THE PURPOSES OF SECTION 20 OF THE LAA? Refer to Paragraph 2.9.2 for the definition and principles as to what is an interest in Crown land.

2.10.8.

ROLE OF DOL IN GRANTING APPROVAL TO EVIDENCE SUPPORTING CAVEATS DoL does not approve caveats. DoL can only approve the supporting evidence of the interest claimed pursuant to the caveat. Unless the form of the caveat itself is clearly wrong, DoL will not be particularly concerned with the form of a caveat or even that a caveat is to be lodged by any party. The form of a caveat over Crown land and the caveatable claim will be examined by RSB in LANDGATE. DoL’s role is to carefully consider whether the approval of the Minister under section 18 of the LAA can and should be given to an interest, or whether it is not required under section 18(8) of the LAA. In considering the approval of the Minister under section 18 of the LAA, the checklist of matters set out in Paragraph 2.8.4 should be considered. In addition, the relevant file and an updated tenure and title search should be checked to identify any prior dealings and approvals to the land. In granting approval under section 18 of the LAA, DoL should clearly advise the caveator that the form of the caveat is still subject to the registration requirements of the TLA and the Registrar of Titles. Where the form is obviously wrong, the Minister’s approval should not be given until the form is corrected.

2.10.9.

REGISTRATION REQUIREMENTS OF CAVEATS OVER CROWN LAND Further information relating to the processes affecting caveats lodged under Part 5 of the TLA can be found in Chapter 4 of the Land Titles Registration Practice Manual.

2.10.10. FORMS TO BE USED Caveats to be used in respect of Crown land can be prepared on a form approved by the Director General of DoL. The approved form used in the case of freehold land, Form C1, is available for this purpose. Please note, forms are to be completed by DoL staff only, however examples of completed forms are available on DoL’s website for information purposes only).

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2.10.11. REMOVAL OF CAVEATS Caveats can normally be removed from freehold land by 8 different methods as set out in Paragraph 4.3 of the Land Titles Registration Practice Manual. However, not all methods used in the freehold can be used to remove caveats affecting Crown interests in land. Caveats affecting Crown interests in land can be removed in one of the following methods: 

By withdrawal;



By lapse under section 138 of the TLA (14 days notice);



By taking or acquisition;



By order of the Court;



By application of the registered proprietor under section 138B of the TLA and possible lapse by 21 day notice;



By application of the registered proprietor or any person claiming an interest in the land under section 141A of the TLA to show that the interest protected has ceased to exist.

The process for each of the above methods of removal of caveats over Crown land is the same as that set out in Paragraph 4.3 of the Land Titles Registration Practice Manual. It should be specifically noted that certain caveats lodged over Crown land cannot be removed by application under section 138B of the TLA. Subsection 138A(g) precludes an application under section 138B for any caveats lodged by or on behalf, or with the consent of the Minister for Lands. However, caveats that are lodged in respect of an interest referred to in section 18(8) of the LAA can be removed by way of an Application under section 138B of the TLA.

2.10.12. CAVEATS LODGED BY THE MINISTER FOR LANDS UNDER SECTION 21 OF THE LAA Like caveats that can be lodged by the Registrar of Titles pursuant to section 188(iii) of the TLA, the Minister for Lands has power to lodge a caveat on behalf of the State or to protect minors, those with mental disorder or mental illness or who are intellectually handicapped, is absent from the State or otherwise under a disability. Caveats lodged under section 21 of the LAA have the effect of an absolute caveat forbidding the registration of any transfer of the land into the fee simple or any disposal of the interest in, or any other dealing in the Crown land.

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2.11.

FORFEITURE OF INTERESTS IN CROWN LAND

2.11.1.

GENERAL Interests in Crown land granted or entered into under the LAA including conditional tenure land transferred under section 75 of the LAA may be forfeited (extinguished or terminated) under section 35 of the LAA where the Minister is of the opinion that there has been a breach of any covenant or condition under which that interest or conditional tenure land has been granted. Before commencing forfeiture action, where there is a breach of any covenants or conditions, the interest holder must be given notice of the breach, including details of the breach and an opportunity to rectify that breach and advice that failure to rectify the breach will result in the interest being forfeited.

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2.11.2.

TRANSITIONAL PROVISIONS – LICENCES GRANTED UNDER THE LAND ACT 1933 Clause 12 of Schedule 2 of the LAA provides that any lease granted under the Land Act 1933 or other holding and the lands therein (including statutory licences granted under the Land Act 1933) that were liable to be forfeited for non-compliance with conditions under section 23 of the Land Act 1933 but were not forfeited, are liable to be forfeited under section 35 of the LAA as if the failure or neglect, or non-payment of rent or instalment of purchase price were a breach of condition within the meaning of section 35 of the LAA. Licences to occupy issued under the Land Act 1933 were a form of statutory tenure issued to the purchaser of town or suburban lands on payment of the first instalment enabling the purchaser to mortgage or transfer that land subject to the Act. Such licences were forfeited under section 23 of that Act. When the Land Act 1933 was repealed and the LAA enacted, the remaining licences issued under section 43 of the Land Act 1933 were not transitioned across into the LAA, but remained in force as if the Land Act 1933 had not been repealed. Some of the powers, as they related to these licences, also continued to apply (clause 21 of Schedule 2 of the LAA). The powers under the Land Act 1933 that were retained are as follows: 

section 18 which empowered the Minister to replace lost duplicate copies of licences upon satisfaction that the same was lost or destroyed;



section 22 enabling insolvent licensees to assign his or her estate for the benefit of his or her creditors or through a trustee, subject to the Minister’s consent;



section 41 enabling the balance of the purchase price to be paid by the licensee and, subject to subsection 41(4), enabling a Crown grant to issue in relation to that lot;



section 42A empowering the Minister to refund the purchase money or a portion thereof where the purchaser is unable to comply with a condition of sale or cannot continue payment of instalments.

None of the above powers included the power to continue forfeiture of that form of statutory tenure under section 23 of the Land Act 1933. Therefore, it is clear that all interests in land issued under the Land Act 1933, including statutory tenures, for example, licences issued under that Act; should be forfeited under section 35 of the LAA.

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2.11.3.

FORFEITURE PROCESS – GIVING OF NOTICE Section 35 of the LAA provides that the Minister may, where there has been a breach of any condition or covenant of an interest in Crown land or any conditional tenure land held in fee simple, give notice of the breach to the respondent. The Minister must also, as part of that notice, advise the respondent of the Minister’s intention to forfeit if the breach is not rectified. The giving of the notice for a breach of an interest in Crown land. For example, a breach of a lease provision; invokes the formal procedure for forfeiture of the leasehold interest. The respondent may appeal against the forfeiture notice to the Governor within 30 days of the notice. For further information on the appeal process, see Chapter 3 (Appeals to Governor) in this Manual. There are a number of important principles to consider before a forfeiture action is commenced: 

The forfeiture provisions should only be invoked after detailed discussions have been undertaken with the interest holder and DoL. It is suggested that it may be appropriate to involve other interest holders, for example: mortgagees, who may be in the process of acquiring the interest through a power of sale for non-payment of moneys.



The Minister has no power to allow a forfeiture notice to “lapse” to allow a further extension after the Notice has been issued.



The Minister has no power to “withdraw” the forfeiture Notice.



Once the forfeiture process has commenced, the Minister has no power to stop that interest from being forfeited.



Where the interest proposed to be forfeited is a “licence” issued under the Land Act 1933, the forfeiture process under section 35 of the LAA should be used and not the gazettal process provided under the repealed Act. See Paragraph 2.11.2 for further information on this process for forfeiture of licences granted under the Land Act 1933.

Unlike the forfeiture process under the repealed Land Act 1933; once a formal Notice of Forfeiture has been given to the respondent, forfeiture action must proceed through the appeal process and the determination of the Governor. There is no statutory power under the LAA enabling the Minister to change his mind and not present the appeal to the Governor once the Minister has made a formal notice of forfeiture. Once a forfeiture notice has been given to the respondent, the only power that the Minister has is whether or not to extend the time to enable the respondent to lodge an appeal under section 35(2) of the LAA. There is no discretion and no power enabling the Minister to allow the forfeiture notice to lapse or be withdrawn. Where as a consequence of a notice of intention to forfeit, the lessee or other interest-holder rectifies the default which occasioned forfeiture action (eg, pays rent arrears), and it is decided that forfeiture should not proceed, DoL officers should arrange for the Minister to advise the Governor to this effect, and that the appeal (assuming one has been lodged) should be upheld, with appropriate wording in the Governor’s determination to specify that his decision solely reflects the lessee’s rectifying action and the Minister’s recommendation. In practice, forfeiture should only be initiated as a last recourse. DoL officers and the respondent should have held detailed discussions as to the appropriate course of action where a breach of conditions or covenants in an interest in Crown land has occurred, together with how to correct/rectify any breach and avoid forfeiture.

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Before commencing formal action for forfeiture under section 35 LAA, DoL should issue a letter or series of letters with warnings attached to the letters advising the respondent of the breach, of the seriousness of the breach, requesting that the respondent rectify the breach specified within a specified timeframe and advising that the consequence of not rectifying the breach is forfeiture which means termination of his interest in the land. Copies of these letters will also need to be forwarded to all encumbrance and sub-interest holders accompanied by advice of the opportunity to appeal, the appeal process and the period allowed for the lodgement of an appeal with the Minister. The importance of ensuring that sufficient PRE-forfeiture letters are provided cannot be over emphasised. If however, the forfeiture notice has been sent out in error due to a miscalculation of time and the Minister has subsequently ordered the interest to be forfeited, then, to prevent any miscarriage of justice, section 55 of the Interpretation Act 1984 may assist to correct such an error. In the event of such an error the Minister may cancel the Forfeiture Order. The Forfeiture Order should be cancelled by striking through the Order across the page with parallel lines and marking between the lines the following words: “Cancelled – made in Error” The cancellation of the Forfeiture Order should be signed by the Minister and dated has the effect of cancellation of the Forfeiture Order – that is the original interest still exists. An example of the manner of cancelling a Forfeiture Order is shown below:

_ ___ _ _ ___ ___ _ _ __ ___ _ _ r _ rro ___ e _ _ in __ de ___ _ a _ m _ ___ ed __ l l e ___ ds c _ n _ Ca __ an r L __ ed o n g f __ Si ___ e r _ ___ _ _ t _ s i _ ___ Min te __ ___ _ _ a D __ ___ _ _ ___ ___ _ _ __ ___ _ _ _

The striking through should include striking through the Minister’s original signature to the Forfeiture Order. This will enable the Registrar to act on this cancellation order and register the cancellation.

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2.11.4.

APPEAL PROCESS Once a notice of intention to forfeit has been given to the interest holder, the interest holder then has 30 days to appeal against the proposed forfeiture. If an appeal is not lodged within 30 days, or the appeal lapses, is withdrawn or is dismissed, the Minister may lodge an order with the Registrar of Titles, who will cause any freehold land to revest as Crown land or for the Crown interest to be cancelled. The appeal process is set out in Chapter 3 (Appeals to the Governor) of this manual.

2.11.5.

CONSEQUENCES OF MAKING A FORFEITURE ORDER On registration of the Forfeiture Order, any sub-interests, such as a lease or caveat, continues to exist as a tenure with the Crown. Sub-interests and claims protected by caveats will only continue where the Minister, by order, exempts that sublease or caveat from the Forfeiture Order: section 35(5) of the LAA. In cases where a sublease continues to have effect by virtue of section 35(5)(a)(i) of the LAA, the Minister may make amendments to any sublease with the consent of the sublessee. On registration of a Forfeiture Order against a lease, the production of the duplicate lease is not compulsory. Other direct consequences of the Forfeiture Order are that any monies paid to the Crown, such as deposit instalments or rents are retained by the Crown and cannot be recovered by the interest holder, and any improvements made on the land subject to the forfeited interest becomes the property of the Crown. However, in special cases, the Minister for Lands may agree to reimburse the former interest holder the value of any improvements to the land. If there is any disagreement with the value placed on the improvements by the Minister, the former interest holder may refer the matter to arbitration under the Commercial Arbitration Act 1985. Where the Minister agrees to reimburse the former interest holder for the value of any improvements, it will be usual practice to add the value of these improvements as an ingoing premium to a new lessee or purchaser. Any monies owing to the Minister can be deducted from the reimbursement payment. An amount owed to the Minister at the time of forfeiture such as unpaid rent, remains a debt that can be collected by the Minister. Any part payment of the debt is accepted on a without prejudice basis and does not constitute a waiver by the Minister to receive the balance of the unpaid monies or enforce any conditions or covenants held: section 35(9) of the LAA. The Minister should make this clear at the time any such part payments are accepted. A registered forfeiture order represents the right for the Minister to enter and regain possession of the land. Where there is a breach of condition involving the sale of an interest in Crown land into the freehold, or conditional tenure land, section 36 of the LAA provides that the Minister and the interest holder may agree to the surrender or other termination of that interest. The interest holder must agree to and remove any encumbrances from the title prior to any surrender or termination. With the exception of the 10% deposit, any monies paid towards the purchase of the land may, in the discretion of the Minister for Lands and subject to available funds and other considerations may be refunded to the purchaser.

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2.11.6.

AFTER FORFEITURE After a leasehold interest has been forfeited, DoL should provide a report following its forfeiture on any improvements remaining on the leasehold property and the condition of those improvements. In appropriate circumstances, tenders may be called for the management of the improvements until such time as the land is released again. Where a leasehold interest is forfeited, it is reasonably foreseeable that there may be outstanding rates and taxes and water consumption charges affecting the leasehold interest. Before the land is again released, DoL should also try to make enquires to ensure that all outgoings have been paid and that they are no outstanding statutory charges or rates and taxes due in relation to the property. While it is standard practice for any incoming purchaser to enquire on the rates and taxes due on any property, DoL should also try to ensure that, at the time of re-releasing the land or interest, that the land is free of any outstanding rates and charges and other encumbrances.

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2.12.

APPLICATION FOR APPROVAL TO COMMENCE DEVELOPMENT ON CROWN LAND (MRS FORM 1) Since June 2000, there has been a requirement for LANDGATE/DoL to sign off all applications for development approvals in relation to Crown land under Section 35E of the Metropolitan Regional Town Planning Scheme Act 1959 (MRTPS Act). In addition to unallocated Crown land and unmanaged reserves, this requirement relates to Crown land that is dedicated to the purpose of another Act, or is reserved and managed by another agency, or is dedicated as a public road. The requirement is confined to land, which is subject to the MRTPS Act – ie Perth metropolitan region land. As such, Applications for Approval to Commence Development are required to be submitted on the standard Metropolitan Region Scheme Form 1 (Attachment 7). This form must be either co-singed by the controlling agency before being submitted to DoL, or be submitted with a letter of consent from the controlling agency who has management control. DoL will only endorse applications after the proponent has obtained the written agreement of all Government agencies that have management responsibilities over the development area. Signature by a Manager of the relevant Regional and Metro Services region, is necessary in order to allow the development approval process to proceed. However, this endorsement should not be taken as “in principle” approval of the proposal. Therefore, the Manager ‘s signature is always accompanied by a stamp reading “Signed as an acknowledgement of and to facilitate only, the processing of this application by the WAPC. No endorsement, undertaking or assessment is made or intended.” As part of the development approval process, the Department of Lands (DoL) performs an extensive and all inclusive referral process. To avoid duplication of the referral process, DoL involvement extends only to checking the land tenure and ensuring that the consent of any management agency has been obtained. DoL has given a letter of authorisation to the Manager of Hillary’s Boat Harbour, authorising him to sign Form 1’s on behalf of DoL, in relation to development of Crown land within the boat harbour.

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2.13.

APPLICATION FOR PLANNING APPROVAL UNDER A TOWN PLANNING SCHEME Town planning schemes commonly require that where development of reserved land and the subject of that scheme is to commence, planning approval is required by the relevant local government Council. The scheme will normally provide a standard form of application for planning approval, which must be signed by the landowner and the applicant. Council’s powers may in some cases be delegated down to the Council’s planner, to deal with certain types of development. DoL or the Western Australian Planning Commission (WAPC) do not become involved in this process. Such planning approval applications relate to Crown land throughout the State, not just to the Metropolitan region. Procedures in paragraph 2.12, in relation to MRS Form 1’s otherwise apply, so far as concerns signature by DoL on behalf of the Crown (as landowner). Once DoL has obtained conditions and approvals from all relevant Agencies (as part of the planning process) tenure amendments will be initiated to finalise the disposal of the Crown land.

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ATTACHMENT 1 Example of CLT created for Wreck Site of HMAS Swan at Dunsborough - Paragraph 2.3.3 refers.

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ATTACHMENT 2 Example of a Certificate of Crown Land Title - Paragraph 2.3.8.1 refers.

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ATTACHMENT 3 Example of a Qualified Certificate of Crown Land Title - Paragraph 2.3.8.2 refers.

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ATTACHMENT 4 Example of a Subsidiary Certificate of Crown Land Title - Paragraph 2.3.8.3 refers.

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ATTACHMENT 5 Example of a Qualified Subsidiary Certificate of Crown Land Title - Paragraph 2.3.8.4 refers.

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ATTACHMENT 6 Example of a Sketch acceptable for Registration Purposes - Paragraph 2.3.11.9 refers.

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CHAPTER 03 APPEALS TO GOVERNOR

TABLE OF CONTENTS 3.

APPEALS TO GOVERNOR

3-1

3.1.

INTRODUCTION

3-1

3.2.

APPEAL PROCESS

3-2

3.2.1. WHERE IT IS PROPOSED TO RECOMMEND A DISMISSAL OF THE APPEAL

3-2

3.2.2. WHERE APPEALS ARE UPHELD BY THE GOVERNOR

3-3

3.2.3. EFFECT OF A FORFEITURE ORDER

3-3

3.3.

FORFEITURE PROVISIONS UNDER SECTION 35

3-4

3.4.

DIFFERENT NOTICE PERIODS FOR APPEALS

3-4

3.4.1. SECTION 35

3-4

3.4.2. SECTION 133

3-4

3.4.3. SECTION 145

3-4

3.4.4. SECTION 190

3-5

3.4.5. SECTION 272

3-5

3.5.

CALCULATION OF NOTICE PERIOD FOR APPEALS

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3.

APPEALS TO GOVERNOR

3.1.

INTRODUCTION Chapter 3 of this manual provides for the appeal to the Governor against certain decisions made by the Minister for Lands in the exercise of his or her powers. A structured right of appeal to the Governor against a decision of the Minister is set out in Part 3 of the Land Administration Act 1997 (LAA). This right of appeal is only available in 5 specific instances:



forfeiture provisions (section 35 LAA);



abandonment of a pastoral lease (section 133 LAA);



cancellation of easements (section 145 LAA);



setting of purchase price on surplus acquired land being disposed of (section 190 LAA); and



removal of unauthorised structures (section 272 LAA).

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Appeals To Governor

APPEAL PROCESS Section 37 of the LAA provides that a person who is aggrieved by a decision of the Minister in one of the above 5 instances, can lodge an appeal by serving a notice in writing of the appeal with the Minister under Part 3 of the LAA setting out the grounds of the appeal. Once a notice of appeal has been served on the Minister, section 38 of the LAA provides that the Minister must prepare a document, to be delivered to the Governor, setting out the following matters:



the background relating to the appeal;



the grounds set out in the notice of appeal made by the appellant together with the Minister’s comments on each of those grounds of appeal; and



a recommended determination of the appeal.

On receiving a notice of appeal, the Minister may request the Department of Lands to provide a briefing note for submission to the Governor, in Executive Council, to assist with a determination. The briefing note or Ministerial submission to the Governor should be prepared in the appropriate form and should contain the following information:



the background relating to the appeal including the grounds set out in the written appeal made by the appellant;



any comments of the Minister in relation to the grounds of appeal;



a recommended determination in relation to the appeal that is whether or not the appeal has merit and should be upheld, or, whether the appeal should be dismissed and the reasons for the dismissal.



an Executive Council Minute should also be prepared by DoL reflecting the Minister’s recommended determination of the appeal.

Upon receiving the document from the Minister, under section 39 of the LAA the Governor must consider the appeal. In so doing, the Governor may dismiss or uphold the appeal. In either case, the Governor must notify the Minister in writing of his determination. The Governor, in considering the appeal may seek advice from any person as he or she chooses. Once the Governor has made his or her determination and advised the Minister in writing, the Minister must notify the appellant in writing of the outcome of the appeal and take such necessary action to give effect to the outcome of the Governor’s determination: section 40 of the LAA.

3.2.1.

WHERE IT IS PROPOSED TO RECOMMEND A DISMISSAL OF THE APPEAL There is no delegation of responsibilities under sections 35(3) or 40 of the LAA. Where the Governor has determined to dismiss the appeal, or where the appeal was not received within the required period of time, DoL should prepare a submission to the Minister containing the following matters: 

it should set out a summary of the actions;



it should include the Governor’s determination, if applicable; and



a Forfeiture Order should be prepared and enclosed with the submission for the Minister’s signature.

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Once the Minister has signed the Forfeiture Order, it must be lodged for registration. Upon registration of the Forfeiture Order a letter should be forwarded to the appellant advising that the Forfeiture Order has been effected and the interest has been forfeited. Where as a consequence of a notice of intention to forfeit, the lessee or other interest-holder rectifies the default which occasioned forfeiture action (eg. pays rent arrears), and it is decided that forfeiture should not proceed, DoL officers should arrange for the Minister to advise the Governor to this effect, and that the appeal (assuming one has been lodged) should be upheld, with appropriate wording in the Governor’s determination to specify that his decision solely reflects the lessee’s rectifying action and the Minister’s recommendation.

3.2.2.

WHERE APPEALS ARE UPHELD BY THE GOVERNOR The Governor, in consideration of the appeal lodged by the appellant, may provide concessions or support further extensions of time to rectify breaches of conditions or covenants. Where the Governor upholds the appeal, the Minister should send a letter to the appellant: section 40 of the LAA. DoL should prepare the draft letter and forward a submission to the Minister setting out the following matters:

3.2.3.



a summary of the process, including the determination by the Governor; and



enclosing a draft letter to the appellant, for the Minister’s signature, advising of the Governor’s determination and any conditions that may apply.

EFFECT OF A FORFEITURE ORDER Where a Forfeiture Order has been made, signed by the Minister and registered with the Registrar of Titles, the interest is forfeited and the land becomes unallocated Crown land: section 35(4) of the LAA. If any existing sub-interest or caveat is exempted from the forfeiture process by order of the Minister, that sub-interest continues to have effect as the primary interest despite the Forfeiture Order and may be varied by agreement of the Minister for Lands and the interest holder. Any caveat exempted from the forfeiture process is retained and continues to give notice of an existing claim. Under section 35(4) of the LAA the respondent cannot recover any moneys paid to the Minister in respect of the forfeited interest. The respondent remains liable to pay any moneys payable to the Minister in respect of the interest before the date of registration of the Forfeiture Order. Sections 35(8) of the LAA allows the Minister to charge interest on any outstanding amounts at the rate determined under section 142(1) of the Supreme Court Act 1935 and recover the outstanding interest as a debt due to the Minister in a court of competent jurisdiction. For further information on the consequences of a Forfeiture Order, see Chapter 2 of this manual.

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Appeals To Governor

FORFEITURE PROVISIONS UNDER SECTION 35 The most common process handled within the Regionald and Metro Services Division where an appeal is made to the Governor is where the Minister invokes the forfeiture procedure set out in section 35(1) of the LAA. For further information on the forfeiture process see Chapter 2 of this manual.

3.4.

DIFFERENT NOTICE PERIODS FOR APPEALS The five different provisions in the LAA that provide for appeals to the Governor contain different notice periods in which an appeal should be made. The period of notice for enabling an appeal to be made is very important. The rights of appeal under sections 35, 133 and 145 of the LAA may be made within 30 days of the event set out in the respective sections of the LAA or such longer period as the Minister may decide. The rights of appeal under sections 190 and 272 of the LAA may be made within 21 days of the event set out in either of these sections or such longer period as the Minister may decide.

3.4.1.

SECTION 35 Section 35(2) of the LAA provides that the interest holder/respondent who has been given a forfeiture notice has 30 days in which to lodge an appeal with the Minister against the proposed forfeiture order. Section 35(1) provides that, if the Minister intends to forfeit a Crown interest, he or she must “give to the holder of that interest” (or that freehold owner, in the case of conditional tenure land) notice of the nature of the breach and of that intention. Section 35(2) then provides that the respondent (being the interest holder) may lodge an appeal with the Minister “within the period of 30 days after the giving to him or her of a notice under subsection (1)”.

3.4.2.

SECTION 133 Section 133 of the LAA provides that the Minister may, upon advice from the Pastoral Lands Board of Western Australia (“the Board”), authorise the Board or its agents (by instrument in writing) to enter upon land held under a pastoral lease and assume temporary care, control, and management of the land. Under section 133(2) and (3) a pastoral lessee, who is aggrieved by the issue of an instrument in writing by the Minister, may lodge an appeal within 30 days after the Board has entered the land.

3.4.3.

SECTION 145 Under section 145 of the LAA, the Minister has power, after serving a notice in writing (in an approved form) on the grantee of an easement and on any lessee or management body of the Crown land, to cancel the easement. Section 145(2) provides that the grantee of the easement may lodge an appeal with the Minister “within the period of 30 days after the service on him or her of the notice under subsection (1)”.

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SECTION 190 Section 190 of the LAA provides that where fee simple land was taken or resumed without agreement less than 10 years ago or has not been used for any public work and subject to the conditions set out in that section, the holding authority must advertise the fact that the land is no longer required for the purposes of the work for which it was taken or any other purpose ancillary or incidental to that purpose. A “qualified” person who wishes to be given an option to purchase the fee simple interest in the land must apply in writing to the holding authority within 30 days: section 190(5) of the LAA. Where the holding authority is satisfied that the applicant is a “qualified person”, the holding authority must grant an option to purchase the fee simple to the applicant and so advise the applicant within 60 days after the applicant has applied to the holding authority of its wish to purchase the fee simple interest in the land. Under section 190(9) of the LAA, the option granted by the holding authority may be granted on such terms and conditions as the holding authority requires and may include a condition prohibiting the option holder from assigning the option. Any person aggrieved by a decision of the holding authority in 

Refusing to grant an option under this section;



Ordering the priorities of options;



Setting the purchase price; or



Other terms and conditions of an option

may lodge an appeal within 21 days after receipt of the notice of decision by the holding authority: section 190(10) and (11) of the LAA. In this context the term holding authority has a special meaning defined in the LAA.

3.4.5.

SECTION 272 Section 272 of the LAA gives owners or occupiers of alleged unauthorised structures on Crown land a limited right to appeal against a decision of the Minister (made under section 270 of the LAA) to remove the alleged unauthorised structure and its contents and any fixtures, materials and objects in the vicinity of the alleged unauthorised structure from the Crown land within a period specified in the notice. Section 272(2) of the LAA provides that the appeal can only be made on the grounds that the structure to which the notice relates is not an unauthorised structure. The aggrieved person must lodge an appeal within 21 days after service on him or her of the notice under section 270(4) of the LAA.

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3.5.

Appeals To Governor

CALCULATION OF NOTICE PERIOD FOR APPEALS The wording of the different notice periods set out in the relevant sections of the LAA are important in that they all mean the same as the service of a notice. The right of appeal may be lost if the prescribed timeframes are not met. The careful consideration of time in serving notices is set out in the Interpretation Act 1984. In summary, the rules for calculating time and counting when the 30 or 21 days has expired are as follows:



The date of the forfeiture notice and the date of posting of the forfeiture notice should not be counted in calculating the date of deemed delivery.



The actual date of service of the notice itself should not be counted as part of the notice period of 30 or 21 days.



The notice period commences on the day following the date of service of the notice.



The end of the 30 or 21 days occurs at midnight on the 30th or 21st day of the notice period. This is calculated without counting the date of posting or the deemed date of service.

In calculating the period of notice, care should be taken to consider the service of notices provision set out in section 274 of the LAA. Where posting a letter effects service, that letter is deemed to be delivered in the ordinary course of the post. This will depend upon where the letter is to be posted:



Within the metropolitan region – on the next business day after the letter was posted; section 274(4)(a)



Outside the metropolitan region but within the State – the second business day after the letter was posted; section 274(4)(b)



Outside the State, but within Australia – on the third business day after the letter was posted; section 274(4)(c)



Outside Australia – on the fourteenth business day after the letter was posted section 274(4)(d).

The phrase “after the letter was posted” means “after the day on which the letter was posted”. In calculating dates of service, care should be taken to ensure that the computation of time accords with section 61 of the Interpretation Act 1984 that is where the date of service is a Saturday, Sunday, public service holiday, bank holiday or public holiday throughout the State, the date of service will be calculated as being the next day.

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CROWN LAND ADMINISTRATION AND REGISTRATION PRACTICE MANUAL

CHAPTER 04 RESERVES

TABLE OF CONTENTS 4.

RESERVES

4-1

4.1.

INTRODUCTION

4-1

4.1.1. WHAT IS A RESERVE?

4.2.

4-1

CREATION OF RESERVES

4-2

4.2.1. UNDER THE LAA

4-2

4.2.2. UNDER THE TOWN PLANNING AND DEVELOPMENT ACT 1928

4-3

4.2.3. UNDER THE CONSERVATION AND LAND MANAGEMENT ACT 1984

4-4

4.2.4. UNDER OTHER WRITTEN LAW

4-4

4.3.

RESERVES

4-6

4.3.1. INTRODUCTION

4-6

4.3.2. AMENDMENT OF RESERVES

4-6

4.3.3. CANCELLATION OR CHANGE OF PURPOSE OF RESERVES

4-6

4.4.

MANAGEMENT OF RESERVES

4-8

4.5.

MANAGEMENT ORDERS

4-9

4.5.1. WHAT IS A MANAGEMENT ORDER?

4-9

4.5.2. WHO CAN BE A MANAGEMENT BODY?

4-9

4.5.3. WHAT POWERS DOES A MANAGEMENT BODY HAVE TO DEAL WITH LAND?

4-10

4.5.4. PRINCIPLES CONSIDERED BY DOL WHEN ISSUING MANAGEMENT ORDERS UNDER THE LAA

4-11

4.5.5. REVOCATION OF A MANAGEMENT ORDER

4-11

4.6.

RESERVE CLASSIFICATIONS

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Reserves

4.6.1. CLASS A RESERVES

4-12

4.6.2. CLASS B RESERVES

4-14

4.6.3. CLASS C RESERVES

4-14

4.7.

TYPES OF RESERVES

4-15

4.7.1. MALL RESERVES

4-15

4.7.2. CALM RESERVES

4-19

SECTION 20A RESERVES

4-21

4.8.

MANAGEMENT PLANS

4-26

4.9.

RESERVE ACTIONS (DEALINGS/TRANSACTIONS ON RESERVES)

4-28

4.9.1. EASEMENTS OVER CLASS A RESERVES

4-29

4.9.2. TRANSACTIONS OVER RESERVES

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Reserves

Chapter 4

4.

RESERVES

4.1.

INTRODUCTION Part 4 of the Land Administration Act 1997 (LAA) provides the legislative basis for the creation, management, amendment and cancellation of reserves of Crown land. Before 30 March 1998, reserves were created under Part III of the Land Act 1933 or under the Land Act 1893. Any land reserved under section 29 of the Land Act 1933 and remaining so reserved immediately before 30 March 1998, was transitioned into the LAA and taken to be reserves created under section 41 of the LAA: Clause 14(2) Schedule 2 LAA. As at 1 January 2001, approximately 16% (396,610 square kilometres) of the State’s total area (2,527,600 square kilometres) comprised reserved land. The DoL is responsible on behalf of the Minister for Lands for the administration of reserved land in Western Australia created under the LAA.

4.1.1.

WHAT IS A RESERVE? A reserve is a form of tenure of Crown land. It is not an interest in land. A reserve is Crown land that has been set aside or dedicated for a particular purpose in the public interest. A list of purposes for which Crown land has been reserved by the Department of Lands (DoL) under the LAA, as at June 2001, is set out in Table A. It should be noted that this is not a definitive list of reserve purposes. Reserve tenure is usually applied to land, which, because of its intrinsic community value, should be preserved and maintained for the benefit of present and future generations. This is primarily because of its recreation, historical, social, natural resources, its environmental, or cultural significance, or because it has special value for present or future generations. Examples include recreation reserves, national parks, conservation reserves, heritage areas and timber reserves.

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Chapter 4

4.2.

Reserves

CREATION OF RESERVES There are a number of ways in which reserves may be created in this State. Being a form of statutory tenure, a reserve is usually created under a legislative power. The most common types of statutory power are set out below. However, there are still many reserves that can be created under other written law. This manual is not intended to cover all the different ways to create reserves under other written law. For further information on the creation of reserves under other written law, see Paragraph 4.2.4.Generally reserves should only be created over unallocated Crown land that is Crown land that is not subject to any other tenure or interests. Action to reserve Crown land is usually carried out by the Regional and Metro Services Division following

4.2.1.



a request from a corporate body or Government agency or local government,



land planning decisions, or



as a result of a subdivision of land.

UNDER THE LAA There are 3 main types of reserves that can be created over Crown land under the LAA by the Minister for Lands: 

Reserves: created by the Minister making a Ministerial Order (prepared on LAA Form1015) under section 41 of the LAA reserving a parcel of Crown land for one or more specific purposes in the public interest;



Class A reserves: created by the Minister making a Ministerial Order (prepared on LAA Approved Form-1015A) under section 41 and classified as a class A reserve under 42 of the LAA; and



Mall reserves: created by the Minister making a Ministerial Order at the request of Local Government within its district under section 59 of the LAA.

Please note, forms are to be completed by DoL staff only, however examples of completed forms are available on DoL’s website for information purposes only). Where a reserve is requested or is proposed to be created, the Lands Division will take into consideration principles, which include, but are not limited to the following: 

Crown land required for operational use for the delivery of Government services or for commercial operation should not be reserved, except to the extent set out in these principles.



Commercial activities that restrict the free use and enjoyment of a reserve for its purpose are not appropriate.



In many cases, the creation of a reserve remains a valid option for the disposition of Crown land, with leasehold also being an appropriate option under certain circumstances.



Land should generally only be reserved where it has an intrinsic community value, within the general terms of a reserve described in Paragraph 4.1.1. In some instances this element may be difficult to determine.



Where there is doubt as to whether a parcel should be reserved or leased the purpose and reason for creating a reserve and any decisions taken regarding a reserve should usually be for the benefit of the community generally.



Any secondary interests granted or approved over a reserve should not compromise, and should preferably enhance, the fulfilment of the purposes for which the land is reserved.

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

Where land is required, exclusively, for a substantially commercial venture, the creation of a reserve of that land should not be considered. Leasehold or freehold tenure (at market value) should be the appropriate tenure considered.



Large areas of land used on a relatively low-intensity basis may be appropriately reserved, especially if the land is also used for other purposes (for example, water catchments and State forests). The extent of intrinsic, non-monetary community values (for example, conservation, strategic location, long-term community requirements) will generally be the primary determinant of tenure, in such cases, especially where there is unfettered public access to the land.



As a general rule, reservation of large areas of operational land should only be acceptable where the public has unrestricted right of access. However, reservation and leasing may be an appropriate tenure arrangement, depending on the circumstances.



Applying reserve tenure to sites with special historical, social or cultural significance is not appropriate where the property has a potential commercial or operational use. In such cases sale in freehold may be possible, subject to the imposition of heritage covenants or restrictive covenants under section15 of the LAA on the CLT or QCLT for that parcel of Crown land.



Find the purpose and reason for creating a reserve, and any decisions taken regarding a reserve, should usually be for the benefit of the community.

Government policy may occasionally dictate reservation, even where the land is being used for operational and/or commercial purposes (for example, existing municipal endowment or port activities).

4.2.2.

UNDER THE PLANNING AND DEVELOPMENT ACT 2005 Reserves may be created as a consequence of land vesting in the Crown as a land planning use and requirement under section 20A of the PDA by way of a subdivisional plan. Such land automatically vests in the Crown in fee simple, for the purpose of conservation or protection of the environment or a waterway, pedestrian access way, right-of-way or reserve for water supply, sewerage, drainage, foreshore management, waterway management or recreation upon the creation and registration of titles the subject of land in the deposited plan. Such land will remain in fee simple under the Transfer of Land Act 1893 (TLA) until it is revested by the Minister under section 243 of the TLA and section 82 of the LAA and will then be created as a reserve under section 41 of the LAA. Land vesting in the Crown under section 20A of the TP &DA will not generally be revested as Crown land by the Minister where the land is subject to encumbrances. While section 82 of the LAA provides that the Minister may revest land with or without encumbrances, there is no express provision in the PDA that provides that land may vest in the Crown subject to encumbrances. It is presumed that the land will be free from encumbrances in most cases. However, as a matter of policy, the Minister may agree to revest land subject to encumbrances in certain cases where it is clear that the encumbrances do not detract or inhibit the Minister’s powers to otherwise deal with the land once it has been revested. All lots revested following the section 20A process are reserved under the LAA for the purpose described on the Deposited Plan approved by the WAPC. For more detailed information, Government policy and Government Approved Guidelines on this type of reserve, see Paragraph 4.7.3.

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Chapter 4

4.2.3.

Reserves

UNDER THE CONSERVATION AND LAND MANAGEMENT ACT 1984 The CALM Act deals with the management of national parks, State forests, conservation nature parks and the conservation estate generally. Under the CALM Act, the Governor in Executive Council has power to reserve any Crown land for the purpose of a State forest, timber reserve or marine reserve (being a marine nature reserve, marine park or marine management area). Once Crown land is reserved under the CALM Act, or reserved under the LAA and brought under the CALM Act, such Crown land is subject to the provisions of the CALM Act. State forests, timber reserves, national parks, conservation parks and nature reserves are vested in the Conservation Commission, while marine reserves covered by the CALM Act are vested in the Marine Parks and Reserves Authority. Section 45 of the LAA sets out the relationship between Part 4 of the LAA and the CALM Act and the powers that can be exercised by the Minister for Lands over Crown land under the CALM Act. For further information on the Minister for Lands’ powers under the LAA to amend and cancel CALM reserves, see Paragraph 4.7.2.2. Reserves under the CALM Act can be declared Class A under the CALM Act. When creating/amending reserves for the purpose of National Parks, Conservation Parks and Conservation of Flora and Fauna, a standard letter is attached to the Reserve Creation/Amendment Document. This letter requests the creation of a Sundry document and in effect will endorse the affected CLT as follows: “Reserve vested under Statute”; The primary interest holder being “Conservation Commission of Western Australia, corner Hackett Drive and Australia II Drive, Crawley; “Vested. Pursuant to Section 7 of the Conservation and Land Management Act 1984. DoL does not issue LAA Management Orders in relation to CALM Act reserves other than s.5 (1)(h) reserves. Management Orders issued over s5 (1)(h) CALM Act reserves do not include leasing or licensing powers.

4.2.4.

UNDER OTHER WRITTEN LAW There are a number of other Acts in Western Australia that empower the Governor to create reserves or to vest Crown land in an agency, or to dedicate Crown land to the purposes of an Act. Once the reserves have been created under other written law, the power to then undertake transactions in respect of those reserves will depend upon the powers contained in the respective legislation to the vesting authority and whether any other powers under the LAA can be exercised in relation to that land. In considering this issue, it is important to identify the Act that created the reserve or dedicated the land, the statutory authority in whom that reserve or land has been vested and the express powers of the vesting authority in its dealings within that reserve or land. Examples of such Acts include the Government Railways Act 1904, the Marine and Harbours Act 1981, the Port Authorities Act 1999, the Aboriginal Affairs Planning Authority Act 1972 and the various tertiary education institution Acts.

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Reserves

4.2.4.1.

Chapter 4

CAN THE MINISTER FOR LANDS ADMINISTER RESERVES CREATED UNDER OTHER WRITTEN LAW? It is clear that where reserves are created under other written law, those reserves are usually managed in accordance with the powers and functions of the statutory authority in whom that reserve is vested under that written law. However, as the land the subject of the reserve is Crown land as defined in the LAA, the Minister for Lands does have certain powers to deal with that land. The Minister for Lands should exercise those powers so they do not inhibit or conflict with the powers of the particular Minister or statutory authority vested with the control and administration of that reserve by that other written law. Any powers exercised by the Minister for Lands under the LAA in such instances should only be done with the consent and knowledge of the vestee.

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Reserves

4.3.

RESERVES

4.3.1.

INTRODUCTION All class C reserves created under the Land Act 1933 are treated simply as a reserve under the LAA. Crown land that is reserved under section 41 of the LAA and not classified as a Class “A” reserve is now known as a reserve. The Minister for Lands has general powers to deal with reserves under his or her powers set out in Part 4 of the LAA.

4.3.2.

AMENDMENT OF RESERVES Reserves may be amended or cancelled by Ministerial Order under section 51 of the LAA. Any management order over that part of the reserve that is being cancelled or amended must be identified and, for that part of the reserve proposed to be cancelled, or amended under section 50 of the LAA before a reserve can be amended or cancelled. Special procedures must be followed in relation to Class A Reserves, Conservation Parks, National Parks and Class A Nature Reserves. Refer to Sections 4.6.1 and 4.7.2.2 in this regard. In general management orders are only revoked after consultation with relevant management body. This is accomplished where the Minister or his or her delegate completes a Revocation Order (Form LAA-1044) and lodges that Order with the Registrar of Titles for registration under the TLA. Please note, forms are to be completed by DoL staff only, however examples of completed forms are available on DoL’s website for information purposes only). Any interests in land created by the management body will be extinguished on the revocation of the management order unless that interest is clearly specified, in the Revocation Order, to continue to exist (section 50(4) of the LAA). When creating/amending reserves for the purpose of National Parks, Conservation Parks and Conservation of Flora and Fauna, a standard letter is attached to the Reserve Creation/Amendment document. This letter requests the creation of a Sundry document and in effect, will endorse the affected CLT as follows: “Reserve vested under Statute”; The primary interest holder being “Conservation Commission of Western Australia, Corner Hackett Drive and Australia II Drive, Crawley”. “Vested. Pursuant to Section 7 of the Conservation and Land Management Act, 1984.

4.3.3.

CANCELLATION OR CHANGE OF PURPOSE OF RESERVES The Minister for Lands has power, under section 51 of the LAA to cancel or change the purpose or amend the boundaries of a reserve subject to the amendment powers of the Minister set out in sections 42, 43 and 45 of the LAA by Ministerial Order prepared, lodged and registered with the Registrar of Titles under the TLA. Before a reserve is cancelled or its purpose changed, any management order over that part of the reserve must be revoked before the Reserve Cancellation Order (Form LAA-1042) or Reserve change of Purpose Order (Form LAA-1011) is lodged. A statutory declaration is requested from the management body in respect to its consent to the proposed revocation of

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Reserves

Chapter 4

the management order as to the part of the reserve to be cancelled and to any interests that may be affected. Please note, forms are to be completed by DoL staff only, however examples of completed forms are available on DoL’s website for information purposes only). See also Paragraphs 4.6.1.2 and 4.7.2.2 in relation to amendments of class A reserves and CALM reserves.

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Chapter 4

4.4.

Reserves

MANAGEMENT OF RESERVES This section relates to reserves created under the LAA and administered under the LAA. This includes those reserves created under the PDA and vested in the Crown. Once created, a reserve is usually placed under the care, control and management of a State government department, Local Government or incorporated community group by way of a Management Order registered against the relevant parcel of Crown land and endorsed on a CLT. For further information on Management Orders, see Paragraph 4.5. At times, a reserve may have been created but has not been placed under the care, control and management of a management body. Such reserves are known as unmanaged reserves. Such reserves remain under the administration of the Minister for Lands and may be leased by the Minister under section 47 of the LAA for purposes that accord with the purpose of the reserve. The benefit of leasing an unmanaged reserve is that the lessee may mortgage the leasehold interest. Under section 48 of the LAA, the Minister for Lands has the power to lease, licence or grant a profit á prendre over an unmanaged reserve for a purpose that is different to that for which the reserve was created but is compatible with or ancillary with the current use or future intended use of that Crown land. The lessee may not mortgage leases granted under Section 48(2) of the LAA. For further information on unmanaged reserves and the powers exercised by the Minister for Lands in relation to unmanaged reserves, see Paragraph 4.9.2.2.

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Reserves

4.5.

Chapter 4

MANAGEMENT ORDERS The LAA now uses the term “management orders” to replace “vesting orders” provided in the Land Act 1933. There is no significant distinction between a vesting order under the Land Act 1933 and a management order under the LAA. The change in terminology will not affect the management powers currently available to Local Governments, State authorities or other management bodies that hold reserved land under a Land Act 1933 vesting order. Management Orders may be granted by the Minister for Lands under section 46 of the LAA.

4.5.1.

4.5.2.

WHAT IS A MANAGEMENT ORDER? 

A Management Order, like its predecessor, a vesting order, is not an interest in land. It is a statutory right to manage and control Crown land in accordance with the Management Order granted under the LAA.



Management Orders place reserves in trust with management bodies on behalf of the public and do not constitute an interest in the land.



Generally Management Orders should support the principle that reserves are in the public interest, are for the general benefit of the community and should preserve the communities right of access over the land (wherever possible).



Management Orders can contain both positive and negative conditions on the use and development of the reserve. These could include the requirement to submit Management Plans and to manage the reserve in accordance with these plans, or the requirement that a Management Body must ensure all processes of the Aboriginal Heritage Act 1972 with respect to the use and development of the Reserve are complied with.



Except in relation to reserves placed under the management of State Government agencies, all powers to deal with land, for example, leases, sub-leases, licences, mortgages and other charges granted under a Management Order require the Minister for Land’s consent. This is usually expressly stated in the Management Order.

WHO CAN BE A MANAGEMENT BODY? Under recent amendments to the LAA by the Land Administration Amendment Act 2001, any of the following persons may now be a management body: 

An entity having perpetual succession (section 46(10)(a) of the LAA); and



An entity not having perpetual succession, but who is 

a Minister responsible for the Act specified in the Management Order (for example the Minister for Justice)(section 46(10)(b)(i) of the LAA);



the Marine Parks and Reserves Authority under the CALM Act (section 46(10)(b)(ii) of the LAA); or



a person holding a prescribed office (section 46(10)(b)(iii) of the LAA). As at July 2001, no person has been prescribed

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Chapter 4

4.5.3.

Reserves

WHAT POWERS DOES A MANAGEMENT BODY HAVE TO DEAL WITH LAND? The following principles are based on section 46 of the LAA and must be borne in mind by any person involved with a management body who deals with land: 



If a management body does not otherwise have power in its own Act to deal with land (that is does not have any power to lease/sublease/licence), where required that body can be given the power to so deal with the land by virtue of the management order unless: 

another Act expressly prevents that management body from exercising that power (that is if the other Act is silent as to the power to enter into a lease, then the management order can give it power to enter into a lease);



another Act expressly authorises another person to exercise that power (for example another Minister has the power to lease, but not the Government agency with whom the management order is placed) (See section 46(7) and (8).

If a non-corporate Minister administering an Act at the Governor’s discretion enters into a lease/sublease/licence, it is deemed to have been entered into by the relevant Minister from time to time, so no further assignment of the rights is needed on a change of Minister.

Existing management orders must be revoked and a new management order issued to change the management body from a body corporate to a permitted non-body corporate management body. 

Leasing or licensing under power or authority of Management Orders must be consistent with the reserve purpose, or ancillary or beneficial to that purpose. The Manager of the relevant Regional and Metro Services region determines what is consistent for the purposes of registration.



Reserves under Management Orders should not be leased or licensed on a commercial basis unless the objective of the proposed lease or licence is to enhance the use and enjoyment of the land for the community benefit, for example, a caravan park in a remote area or a kiosk to serve people using a recreation reserve for recreational purposes. Where in doubt, such matters should be discussed with the Manager of the relevant Regional and Metro Services region.



A power to lease or license is a power to grant interests in property and via the Management Order can be delegated to the holder of the Management Order. This power is to be carried out as a management responsibility with the Minister for Lands’ approval.



The land the subject of a management order cannot be sold or transferred into the freehold without the prior consent of the Minister for Lands.



Transitional and validation provisions have been made confirming that certain provisions in the Land Administration Amendment Act 2001 in relation to management orders also apply to management orders that were in effect before the Land Administration Amendment Act 2001 came into force (that is before 10 April 2001).

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Reserves

4.5.4.

Chapter 4

PRINCIPLES CONSIDERED BY DOL WHEN ISSUING MANAGEMENT ORDERS UNDER THE LAA Where a request has been made for a management order over a reserve, the following principles should be taken into consideration by DoL:

4.5.5.



Inclusion of a condition in Management Orders prohibiting leasing for commercial purposes unless ancillary to reserve purpose or for community benefit.



Recommend positive and negative conditions to be included in Management Orders in potentially contentious situations to allow proper monitoring of use and development of reserves.



Set out express powers to deal in reserved land, including powers to both lease and license the land, where it is intended to convey such powers.



When submitted as a requirement of section 18, scrutinise and approve all leases, subleases, licences, mortgages and other charges granted under a Management Order, having regard to the requirements of the Management Order.

REVOCATION OF A MANAGEMENT ORDER Management orders may be revoked in 3 instances: 

By surrender of that management order by the management body



Where the land the subject of the management order has not been appropriately managed; or



Where it is in the public interest to revoke the management order.

No compensation is payable for the revocation of a management order which is surrendered or revoked for improper management by the management body. Where a management order is revoked in the public interest, compensation may be payable on a claim by a management body under Part 10 of the LAA for improvements that have been lawfully made on the reserve. No compensation will be payable for loss of land or loss of any earning capacity from the land. Where an agreement has been made with the management body for a revocation of the management order; or there has been a breach by the management body of the management order or with a management plan; an interest created under a Management Order, or a caveat that has been lodged against a certificate of Crown land title or qualified certificate of Crown land title for that reserve under a right or interest created by the management body will not continue to subsist unless the Revocation Order made by the Minister for Lands expressly provides for the continuation of that interest or caveat in a Revocation Order: section50(4) of the LAA. It is very important that a Revocation Order contains a clear statement that all encumbrances and interests will remain and continue to subsist if that is the intention. Where a Management Order is revoked in the public interest, section 50(4)(b) of the LAA provides that any interest or caveat that existed in respect of the land will continue to subsist. This will occur whether or not an express provision is specified by the Minister in a Revocation Order for the continuation of that interest or caveat. Section 50(7) of the LAA confirms that section 50 of the LAA as it relates to the revocation of management orders also applies to such management orders (known then as vesting orders) made under the Land Act 1933 and the Land Act 1898 and still in effect before 10 April 2001.

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4.6.

Reserves

RESERVE CLASSIFICATIONS The Land Act 1933 provided for reserves of Crown land to be classified as Class A, B or C reserve. Under the LAA, there is only one classification for reserves – Class A reserves. All other reserves are simply known as “reserves”. However existing Class “B” reserves are continued by the LAA’s transitional provisions (see paragraph 4.6.2).

4.6.1.

CLASS A RESERVES

4.6.1.1.

INTRODUCTION Class A reserves afford the greatest degree of protection for reserves of Crown land created under the LAA. The “A” classification is used solely to protect areas of high conservation or high community value. As a matter of policy, DoL officers should take into consideration principles including but not limited to the following when proposing to classify Class A reserves:

4.6.1.2.



Where reserved land has special values warranting a very high level of protection,



“A” classification should not be created without restraint, as the perceived value of such classifications may otherwise be degraded, and because of the substantial overheads involved in modifying such reserves;



Reserves should not be given an “A” classification without reference to and agreement by the Department of Industry and Resources (DOIR) because of the constraints on accessing class “A” reserves for mining, resource development and other uses;



Cabinet may direct “A” classification for specified reserves or a particular category of reserves;



Regard must be had to the requirements of the Native Title Act 1993 and associated policies, before proceeding with an “A” classification.

AMENDMENT OF CLASS A RESERVES Under the Land Act 1933, class A reserves were, subject to certain actions under section 31(4) of that Act only amended by an Act of Parliament. Under the LAA, the process to amend Class A reserves has been modified. As a general rule, with the exception of class A CALM reserves, amendments of Class A reserves under the LAA do not require an Act to be presented before both Houses of State Parliament. Under the LAA, class A reserves can be amended in one of 2 ways: 

Where the amendments are of a minor nature, those amendments may be made by the Minister making a Ministerial order.

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What constitutes a minor amendment is set out in section 42(3) of the LAA. Minor amendments include: 

adding Crown land to a class A reserve (Refer Form LAA - 1100– Order for Addition of Land to Class “A” Reserves);



amending Class A reserves for the purpose of correcting unsurveyed boundaries provided that the area of the reserve is not reduced by more than 5%;



excising 5% or one hectare, whichever is the lesser, of the area of a class A reserve for the purpose of public utility services;



redescribing locations or lots or adjusting areas of locations or lots within a class A reserve provided that the external boundaries of the class A reserve do not change; and



amalgamating 2 or more class A reserves having a similar purpose and the same management body (Refer Form LAA - 1097 – Amalgamation Order for Class “A” Reserves).

Please note, forms are to be completed by DoL staff only, however examples of completed forms are available on DoL’s website for information purposes only). 

Where the amendments are not of a minor nature (that is. do not come within any of the above 5 types of amendments), the Minister can only amend a Class A reserve by tabling the proposal in both Houses of Parliament in accordance with section 43 of the LAA.

What constitutes a major amendment is set out in section 42(4) of the LAA. Major amendments include: 

reducing the areas of, or excising an area from, a class A reserve for a purpose other than the correction of unsurveyed boundaries or for public utility services – Section 42(4)(a);



excising an area from a class A reserve for the purpose of creating a road Section 42(4)(b);



cancelling a class A reserve - Section 42(4)(c);



changing the purpose of a class A reserve - Section 42(4)(c); or



changing the classification of a class A reserve - Section 42(4)(c).

Under section 43, the proposal to amend a Class A reserve can only proceed where: 

a disallowance motion to the proposal is not made within 14 sitting days of either House of Parliament; or



a disallowance motion is made within the 14 sitting days, debated and lost in 30 sitting days.

Where the disallowance motion is not debated within 30 sitting days, the proposal to amend the Class A reserve lapses and the process must be started all over again. The number of sitting days for the tabling of a proposal to amend a Class A reserve can be counted across different sessions of Parliament and across different Parliaments – Section 43 (2) and (3) of the LAA. Any amendment of a Class “A” reserve can only be made after the Minister has advertised his or her intention to make those amendments in a newspaper circulating throughout the State 30 days before making that order – Section 42(5) of the LAA.

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Quality Assurance Procedures within DoL state, that Members of Parliament representing the region affected by the proposal from both houses are advised of the impending advertisement and tabling of the proposal. Quality Assurance procedures also make reference to the preparation and submission for a correction to a submission tabled before Parliament.

4.6.2.

CLASS B RESERVES

4.6.2.1.

INTRODUCTION Class “B” reserves were created under the Land Act 1933. Those class B reserves remaining under the Land Act 1933 continue and remain so classified as if the Land Act 1933 had not been repealed. Class B reserves cannot be created under the LAA.

4.6.2.2.

CANCELLATION OF CLASS B RESERVES Class B reserves can only be cancelled by the Governor by proclamation in accordance with section 31(2) of the Land Act 1933 by order made under the LAA (see clause 14(6)(a) of schedule 2 of the LAA) The Minister for Lands may continue to deal with Class “B” reserves created under the Land Act 1933 provided that, should the reservation be required to be cancelled, the Minister must make an order under the LAA and also present a special report to both Houses of Parliament setting out the reasons for the cancellation and the purpose to which the land is intended to be used. The report must be made to both Houses of Parliament within 14 days from the date of cancellation, if Parliament is already in session, and if not, within 14 days after the commencement of the next session of Parliament: Section 31(2) of the Land Act 1933.

4.6.3.

CLASS C RESERVES Class C Reserves were created under the Land Act 1933. Class C Reserves cannot be created under the LAA.

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TYPES OF RESERVES There are a variety of different types of reserves that can be created under the LAA. Some examples of the different types of reserves that are mentioned in and administered under the LAA are set out below.

4.7.1.

MALL RESERVES

4.7.1.1.

INTRODUCTION Division 2 of Part 5 of the LAA provides for a statutory form of reserve known as a Mall reserve under section59 of the LAA. The Minister for Lands may create this form of statutory tenure by Ministerial Order at the request of a Local Government within its district. Mall reserves will most commonly be created over existing roads. Section 59(1) provides that a Local Government may request the Minister for Lands to reserve any Crown land for the purpose of passage through that land by pedestrians, vehicles used by adjoining land owners or other vehicles permitted access under local laws, or any other compatible purpose. Section 59(2) and Regulation 10 of the Land Administration Regulations 1998 sets out the procedural requirements to be undertaken by Local Government prior to submitting a request for a mall reserve to the Minister.

4.7.1.2.

LOCAL GOVERNMENT REQUIREMENTS TO CREATE A MALL RESERVE To enable the creation of a Mall reserve, Local Government or the party seeking the creation of a Mall reserve should provide DoL with the following documents and information: 

signed copy of Council’s resolution to create a Mall reserve – Regulation 10(2)(a); and



copy of a plan showing the extent of land in the proposed Mall reserve – Regulation 10(2)(c);



provision of relevant information concerning the proposed mall’s operation;



copies of all submissions received from affected parties – Section 59(3) of the LAA;



copies of agreement to the proposal with public utility service authority providers;



confirmation advice of the notification requirements, for example notice on a signpost on the land or in a manner otherwise approved by the Minister,



copy of the advertisement referred in section 59(2) of the LAA, and



a statutory declaration that Local Government has complied with section 59(2) and (3) of the LAA;



an indemnity from Local Government in favour of the Minister against all costs and claims relating to the creation of a Mall reserve;



any other information that Local Government considers is relevant to the Minister’s consideration of its request.

Also under section 59(3) the Local Government is required to provide to the Minister its comment on the submissions received.

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Where there is substantial opposition to the creation of a Mall by an affected party, this information must be brought to the Minister’s (DoL’s) attention, together with any explanation material provided by the Local Government. Once Local Government has made a request, DoL should ensure that Local Government has 

obtained agreement from public utility service providers to the relocation or protection of any services; and



provided the Minister and DoL with an indemnity against claims for compensation and costs

before commencing any action to create a Mall reserve. The Minister has the discretion about whether or not to create a mall reserve. Once the above information has been forwarded by Local Government, the Minister has 3 options as set out in section 59(4) of the LAA -: 

create the reserve by Ministerial Order,



direct the Local Government to reconsider its request, or



reject the request.

Most malls will be created over pre-existing roads. Any road within a land parcel will be automatically closed upon creation of the mall reserve. Once created as a mall reserve, any land within a mall is treated by section 59(7) of the LAA as if it were a road for the purpose of access, installing, maintaining or removing services. Where public utility services exist, public utility service providers must give written advice that satisfactory arrangements have been made for the protection or relocation of the services. Under section 60 of the LAA further consultation with service authorities is required if it is intended to create, place or erect any landscape improvement or structure that may affect access to public utility services. In such cases, Local Government will need to indemnify DoL against any claims for compensation or costs that may arise from such actions on a mall reserve. 4.7.1.3.

CREATION OF A MALL RESERVE To create a mall reserve, the land the subject of that reserve must have a parcel identifier, be shown as a lot on a deposited plan and a CLT for that land must be created and registered with the Registrar of Titles. A CLT is created by way of an Application for a CLT (Form LAA–1008) followed by the registration of an approved document, being the Creation of a Mall reserve form (Form LAA1014) against the relevant CLT. All mall reserves should be under the care, control and management of a management body (generally the Local Government) and an appropriate management order (Form LAA-1023) should be prepared, lodged and registered. It should be clearly noted that, as with management orders over reserves of Crown land, a management order over a mall reserve does not create an interest in Crown land in favour of the management body: Section 59(6) of the LAA.

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However under section 59(5), that management order may confer a power to the management body to grant leases or licences, or to mortgage the reserve. If it is proposed to give the management body power to grant leases or licences, or otherwise mortgage the reserve, DoL must set out these powers in the Management Order. A person leasing land from a management body may sub-lease that lease provided it has the necessary power in the lease. Please note, forms are to be completed by DoL staff only, however examples of completed forms are available on DoL’s website for information purposes only). 4.7.1.4.

BY-LAWS Under section 61 of the LAA the management body may also make by-laws for the care, control and management of a mall reserve. These by-laws may adopt provisions of the Road Traffic Act 1974 to facilitate control and management of traffic or provide conditions for the granting of leases or licences. By-laws made by the management body should be approved by the Minister to ensure that the by-laws are compatible and correspond with the intent of the reservation. DoL should ensure that the by-laws meet the intent of the mall reserve before a recommendation is made to the Minister for her approval. By-laws cannot be recorded on the CLT. These by-laws only enhance the management body’s powers to administer the reserve. However, similar to leases, sub-leases and encumbrances, the Minister should approve by-laws to ensure they meet the intent of the reservation.

4.7.1.5.

THREE DIMENSIONAL MALL RESERVES As roads may be three dimensional, it is also possible to create three-dimensional mall reserves by reference to an appropriate deposited plan. Similarly, mall reserves may be created on overhead or underground access ways. When considering the creation of three dimensional mall reserves, the same principles apply as those set out on three-dimensional roads.

4.7.1.6.

CANCELLATION OF MALL RESERVES Section 62 of the LAA empowers the management body to request the Minister to cancel a mall reserve, subject to the same advertising and consultation requirements for the creation of such a reserve. Regulation 11 of the Land Administration Regulations 1998 sets out the procedural requirements to be undertaken by Local Government prior to submitting a request to cancel a mall reserve to the Minister.

4.7.1.7.

LOCAL GOVERNMENT’S REQUIREMENTS TO CANCEL A MALL RESERVE Where Local Government or the management body proposes to cancel the Mall reserve, it should provide DoL and the Minister with the following documents and information: 

signed copy of Council’s resolution to cancel the mall reserve: Regulation 11 (2)(a); and



provision of written details of any lease, sublease, licence, or mortgage granted in respect of the mall reserve: Regulation 11 (2)(c);



confirmation advice of the notification requirements, for example notice on a signpost on the mall reserve or in a manner otherwise approved by the Minister,



copy of the advertisement referred in Regulation 11(1)(a) of the LAR, and

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

a statutory declaration that Local Government has complied with section 59(2) and (3) of the LAA as read with section 62(2) of the Act;



any other information that Local Government considers is relevant to the Minister’s consideration of its request.

As in the case of the creation of a mall reserve the decision to cancel a mall reserve is discretionary and the Minister has 3 options when asked to cancel the reserve as set out in section 62(3) of the LAA. The Minister can 

cancel the reserve by Ministerial Order,



direct the Local Government to reconsider its request, or



reject the request.

Registration of a Ministerial Order to cancel a mall reserve (Form LAA-1009) has the following effect as provided by section 62 of the LAA: 

it automatically dedicates the land as a road,



it cancels the Management Order, and



it repeals any by-laws made in respect to the mall reserve.

Please note, forms are to be completed by DoL staff only, however examples of completed forms are available on DoL’s website for information purposes only). It is important to remember that any land that was not already a pre-existing road before the creation of a mall reserve will be dedicated as a road upon the cancellation of a mall reserve by virtue of section 62(4)(b) of the LAA. DoL and other agencies that request a cancellation of the mall reserve should be aware of this and if necessary ensure that the road is closed under Part 5 of the LAA before it is set aside for another purpose or before an interest is proposed to be granted over it. 4.7.1.8.

REMOVAL OF INTERESTS AND ENCUMBRANCES ON CANCELLATION OF MALL RESERVE There is no legislative provision for dealing with leases, sub-leases, other interests and encumbrances created over the mall reserve in the event of its cancellation. It is essential that the management body arrange the removal, surrender, discharge or cancellation of any lease, sub-lease, interest or encumbrance, before the mall reserve is cancelled as these interests or encumbrances would be inconsistent with the dedication of the land as a road for use by the public. All relevant documentation for the removal, surrender discharge or cancellation of the interests or encumbrances must be lodged prior to or simultaneously with the Ministerial Order to cancel the mall reserve. Three-dimensional mall reserves will be converted to three-dimensional roads. Similarly, mall reserves created on overhead or underground access ways will continue as roads, unless other contrary action is taken (for example road closure, followed by a grant of lease or other tenure).

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4.7.2.

DEPARTMENT OF ENVIRONMENT AND CONSERVATION (DEC) RESERVES

4.7.2.1.

INTRODUCTION Reserves for the management of national parks, conservation nature parks and the conservation estate generally may be created under the CALM Act or the LAA. See also Paragraph 4.2.3. DEC Class A reserves will generally be created by DEC officers. However, if DoL is to create these under the CALM Act, officers should take into consideration principles including, but not limited to the following, when proposing to create class “A” CALM reserves:

4.7.2.2.



Where DEC has purchased freehold land for reservation as part of the conservation estate, an “A” classification may be given upon request;



Where DEC provides government-approved criteria for “A” classification of conservation estate reserves, reserves may be classified in accordance with these criteria; and



Regard must be had to the requirements of the Native Title Act 1993 and the Mining Act 1978 and associated policies, before proceeding with an “A” classification.

CANCELLATION OR AMENDMENT OF CONSERVATION AND NATURE RESERVES Minor amendments can be made to conservation parks, national parks and Class A nature reserves under the LAA by virtue of section 45 of the LAA. Under section 45, the Minister for Lands can only make a Ministerial order for minor amendments with the consent of the Minister for the Environment and Conservation (that is or whoever is the Minister for the time being to whom the administration of the CALM Act has been given by the Governor). Minor amendments to conservation parks, national parks and Class A nature reserves include: 

adding Crown land to such a reserve (Refer to Form LAA - 1099 Order for Addition of Land to Certain Class “A” Reserves);



amending such reserves for the purpose of correcting unsurveyed boundaries provided that the area is not reduced by more than 5%;



excising 5% or one hectare, whichever is the lesser, of the area of such a reserve for the purpose of public utility services;



redescribing locations or lots or adjusting areas of locations or lots within such a reserve provided that the external boundaries of the reserve do not change; and



amalgamating 2 or more such reserves having a similar purpose and the same management body (Refer to Form LAA - 1098 Amalgamation Order for Certain Class “A” Reserves).

Please note, forms are to be completed by DoL staff only, however examples of completed forms are available on DoL’s website for information purposes only). Where the Minister for Lands wishes to 

make any of the above minor amendments, or



excise land from a conservation park, national park or Class A and nature reserve for the purposes of creating a road,

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the Minister must advertise his or her intention in a newspaper circulating throughout the State: section 45(5) of the LAA. In addition, where the Minister wishes to excise land for the purpose of creating a road, the Minister must cause that proposal to be tabled before both Houses of Parliament (within 30 days of advertising his or her intention in a newspaper) under section 43(1) of the LAA. Any other amendment to a conservation and nature reserve, including changing the purpose of a DEC reserve, can only be done by an Act of Parliament. (See Section 45(3) of the LAA).

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SECTION 152 RESERVES See also Paragraph 4.2.2. As a matter of Government policy, there are strong grounds for retaining the purpose for land set aside under section 152 of the PDA. In particular: 

the subdivider of the land may be justified in expectations that the reserve would be used for the purpose for which it was created via the subdivisional process; and



purchasers or users of subdivided blocks may be frequently influenced in their decisions to acquire land and build based on the existence of such a reserve and may have an expectation that these reserves will remain.

Although this land is vested in the Crown in fee simple under section 152 of the PDA, the Minister for Lands can deal it with under the LAA after it has been revested. In revesting the land as Crown land under the LAA, DoL will give effect to the clear intentions of the PDA and associated planning approvals by reserving the land for its vested purpose even though the land can be reserved and used for other purposes in whole or in part, at a later time. Generally section 152 reserves should be retained as Crown land in the name of the State of Western Australia for their reserved purpose to the greatest degree practicable. Where any such reserve is proposed to be cancelled or disposed into the fee simple, strict adherence to Cabinet approved guidelines set out below should be followed.

The greatest protection should be afforded to section152 “public recreation” reserves and private interests should not be granted over such reserves. 4.7.2.3.

GOVERNMENT APPROVED GUIDELINES The following Guidelines for section 152 reserves are approved by the Government and should be taken into consideration by Officers within DoL: 

Land vested in the Crown under section152 of the PDA for recreation should be reserved for “public recreation”. This purpose should only be applied to section 152 recreation land.



Every effort should be made to locate an appropriate management body, with the ideal position being to secure agreement with Local Governments for management orders to issue to them without individual reference over section152 land, as soon as the land has been revested and reserved.



Leasing powers should not be included in management orders over section 152 “public recreation” reserves, to avoid private interests being given over such land.



Leasing powers may however be included in a Local Government’s management order over a section 152 “public recreation” reserve in limited circumstances, to enable outsourcing of Local Government recreational facilities.



Licensing powers may be included in a Local Government’s management order, to allow licensing, however section 18 Ministerial approval should be a condition of the Management Order for such reserves.



Section 18(2) of the LAA requires the Minister’s prior approval to all licences by Local Governments over managed reserves.



As a matter of principle, DoL will not permit leasing of section 152 recreation reserves to clubs. A case may be argued for the use of small areas of large reserves for club

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premises while the playing fields remain open for public use when not being actively utilised by clubs for games and perhaps training. In certain localities, section 152 reserves may comprise the only public land available, and where the area of reserve is great, it may be reasonable to insist it remain open in its entirety to the general public. 

Small portions of “public recreation” reserves may therefore be excised and separately reserved (for example, for “club and club premises”) with management order issuing to Local Governments with power to lease. Use by clubs of the playing fields on the remainder of the original reserves may be licensed. This option has been adopted in relation to certain tennis clubs.



When considering Licences for Minister’s consent Licences should not be permitted where – 

while being stated to be licences, they are in fact leases (advice should be sought from legal officers within DoL in this connection);



they interfere with the general public’s continuous access to, and use of the whole of the reserve is affected (that is exclusive possession is conveyed, and the licensees have authority to interfere with others using the reserve);





buildings or developments are constructed consequent to such agreements, for the use of the licensees (buildings on recreation reserves cannot legally have any other character than premises in or relation to which the public is entitled to enjoy recreation upon the reserve; that is exclusive use could not be given to a club). Section 152 land (particularly section 152 “public recreation” land) should be retained for its reserved purpose.



Necessity or desirability of a high order is to be established before a proposal affecting a section 152 “public recreation” reserve may be approved.



Where the “public recreation” reserve is to be cancelled or substantially reduced, a Local Government or other proponent must signpost the affected reserve to indicate the intended change, advertise in the local newspaper and, in appropriate cases canvass nearby landholders by mail in order to demonstrate to the Minister the level of ratepayer support. Town planning procedures where formal re-zonings are required may satisfy this action.



A request from Local Government for approval to dispose of a section 152 reserve must be supported by the following: 

reasons for requesting the disposal of the reserve(s).



in the event that the proposal is to purchase replacement land, the submission should – identify the land involved and detail what negotiations for purchase have been undertaken, and

 

meet the requirements of point 14 below.



Details of the level of public consultation undertaken together with the results of that consultation.

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

Where the reserve is to be sold to fund the purchase of other replacement land to effect consolidation of another recreational reserve nearby, Local Government must: 

provide details of the proposed new site and budget forecasts, and





give an undertaking to supply a statement of income and expenditure in relation to the transaction, with surplus proceeds either being committed to a Trust fund established by Local Government for capital improvements to recreational land or being passed to the Crown. Section 152 reserves should not be a source of general revenue.



Such relocation is to be on the basis of equal area and suitability and Department of Planning support is necessary.



Town Planning Schemes may be employed to comprehensively rationalise reserves created under section 152 of the PDA, subject to 

the agreement of the Minister for Lands to the content of each Scheme, and

 

such variation of the Guidelines as may be agreed by the Minister for Lands is necessary to give effect to the intent of the Scheme. This is not intended to derogate from the overall responsibility of the Minister for Planning for such Schemes, but is aimed at ensuring Crown land administration issues are also accounted for.



Where relocation of unwanted section 152 land does not offer the best solution to the local community’s needs, a Local Government may, with the prior approval of the Minister for Lands and Department of Planning, dispose of identified reserves and apply the proceeds to capital improvements to other recreation reserves in the general locality.



A condition of a reserve’s sale to Local Government for disposal will require that a Trust fund be established for this purpose and that a separate audit and Audit Certificates be provided annually to show how the proceeds have been applied. Should certification be inadequate or indicate a breach of conditions, the Minister for Local Government will be asked to issue directions under the Local Government Act 1995 to address the situation.



To facilitate disposal in accordance with this policy, DoL will transfer the fee simple of the land to the relevant Local Government.



Disposal of section 152 reserves to Local Government should generally be on the basis of payment to DoL of $500 or 5% of unimproved market value (as advised by the Valuer General), whichever is the greater. Statutory fees are also payable by Local Government.



Local Government may establish one section 152 Trust fund for proceeds from sale of all surplus section 152 land, subject to:





community consultation, including reference to where funds are likely to be expended;



the community being given an opportunity to comment on where funds from a particular disposal should be expended;



establishment of a separate Trust fund for a particular purpose, where the community attitude is that disposal funds should be allocated to a specific project.

Funds should only be spent on capital improvements to recreation land in the vicinity of the land sold.

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

Teams within the relevant region of the Regional and Metro Services Division should maintain a Register (initially manual but hopefully PC-based in the future) recording details of reserves approved for disposal, VGO valuation, land to be acquired by Local Government (if appropriate), record of follow-up of Trust Fund and payments out of the Trust Fund (as audited).



Teams within the relevant region of the Regional and Metro Services Division should follow up outstanding audits in January of each year, peruse the audits, and take any appropriate action.



Separate files should be maintained for each Local Government to deal with disposal of section 152 Reserves. DoL files are to contain copies of recommendations etc from the relevant reserve(s) file(s) and follow up of Trust audits should be undertaken in the DoL General File. (This file will also be used to consider overall rationalisation programmes covering section 152 reserves).



Where DoL has exhausted all other avenues for passing management responsibility to Local Governments, section 152 reserves identified as being no longer required for community purposes may be sold by DoL, with revenue offsetting funds needed to undertake essential maintenance on unvested reserves remaining under DoL ’s control.



Where section 152 reserves are to be disposed of by DoL–





Teams within the relevant region of the Regional and Metro Services Division should undertake public consultation;



VS valuation and Department of Planning approval should be obtained;



The approval of the Minister for Lands needs to be sought;



Disposal should be by competitive process, except where section 87 amalgamation with an adjoining property is the only feasible option;



Payment is to be within a short term (30 to 90 days);



Funds are to be paid into Revenue following which a submission is to be made to Treasury seeking additional funds for an ongoing program of removal of hazards from Crown reserves etc;



If additional funds are granted, expenditure is to be identified by a separate Chart Number (to be established by the Finance and Budget Officer);



Expenditure is to be approved by the Manager of the relevant Regional and Metro Services region;



Teams within the relevant region of the Regional and Metro Services Division should maintain a Register detailing reserves to be disposed of, Local Government area, VGO valuation, release date, disposal price, fund sought from Treasury, funds received and expenditure (how much, on what).

Sites may be excised from section 152 “public recreation” reserves for telecommunications facilities. Such sites will then be reserved for that purpose, and a management order issued to the Local Government with power to lease, subject to the lease revenue being used for either – 

improvements to the “parent” section 152 reserve from which the telecommunications site is excised, or



betterment of other “public recreation” reserves in the vicinity, if the lease revenue cannot reasonably be applied to the “parent reserve”.

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

Excisions of minor areas for public utilities such as Western Power padmounts or Water Corp pumping stations may be permissible where an easement is not a reasonable alternative.



When section 152 reserves created to protect areas with conservation values are involved, there shall be consultation with the relevant Government agencies during the formulation of a Town Planning Scheme.



The change of purpose of section 152 reserves affected by EPA System recommendations (or similar) are not to be constrained by these Government Approved Guidelines, provided that specific clearance is given by the Minister for Lands in each case, following consultation with the DEP.



Where appropriate, section 152 reserves may be added to adjoining Conservation reserves.



There is no obligation to return section 152 land to a former owner for nominal consideration.



These Guidelines apply to land set aside in Crown subdivisions for the purposes specified in section 152 of the PDA.



Landscaped drainage ponds can form part of the landscaping of a “public recreation” reserve, and drainage can therefore co-exist with recreation in such cases.



Leasing or licensing of a section 152 foreshore reserves can occur in certain cases.



Section 152 land in rural subdivisions intended for recreation may be set aside for purposes such as “paddock and recreation” or “bridle path”, depending on the circumstances; and leasing powers may be appropriately included in a Local Government’s management order.



These Government Approved Guidelines can only be changed by specific approval of the Minister for Lands.

It should be noted that the above are only guidelines and are subject to change.

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4.8.

Reserves

MANAGEMENT PLANS Section 49 of the LAA provides for management plans to be prepared by a management body and submitted for the Minister’s approval, in the approved form, in relation to a managed reserve. Such plans may be either prepared voluntarily by the management body, or at the request of the Minister. Management plans provide detail on how a particular reserve should be developed, managed and used. Such plans are used infrequently, and usually occur where reserves are in sensitive areas, are of a sensitive nature or are for a potentially damaging purpose – for example, gravel reserves, toxic disposal reserves. When granting a management order in a sensitive area or for a sensitive purpose, DoL should make the order conditional on the preparation of a management plan. In recommending management plans for approval, Regional Managers should consider whether cultural, social, health and natural resource issues, as well as conservation, environmental and heritage issues, have been adequately addressed. Management plans should (where applicable) contain a land management component providing for soil/flora/fauna conservation, water supply, pollution control and/or other land information. A financial component may also be included. In preparing a management plan the management body should provide evidence of liaison with relevant agencies. Costs of preparing management plans are to be borne by the management body. Management bodies may require management plans as a condition of a management order. Management plans are to be ‘recorded’ on the relevant file cover for information purposes only. Management Plans cannot be registered. Reserves should not be used for purposes, which have a high potential for contamination. Generally such uses are operational or service delivery in nature, meaning that the land should be sold or leased at commercial rates. Management Plans should address the following issues: A. Introduction A.1 A.2 A.3 A.4

Name/location/area of reserve Purpose of reservation, date, management authority Characteristics of boundaries/tenures and management of adjoining land Reasons for/purpose of working plan

B. Natural Resources of the Reserve B.1 B.2 B.3 B.4 B.5 B.6 B.7

Topography/natural drainage/waterways Geology and soils (including dunes, beaches etc) Climate Vegetation (including fire history, disease, noxious weeds etc) Wildlife (fauna, avifauna, pests, etc) Water resources Minerals and construction materials.

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C. Existing Use and Management C.1 C.2 C.3

Past and present uses/facilities Access (to and within the reserve, including use of off-road vehicles) Current management controls and programs (including outstanding proposals for improvements, staffing, etc)

D. Assessment of Management Needs D.1 D.2 D.3 D.4

Pressures for future use (further development of existing uses plus possible new uses) Identification of sensitive/robust areas (ability of the reserve to cope with intensified usage without severe environmental damage, and the need for management to prevent such damage) (Large reserves only) Division of the reserve into management units (areas with similar landscape characteristics and/or ability to cope with likely usage) Adequacy of existing management (need for additional controls resources etc)

E. Management Proposals E.1 E.2 E.3 E.4 E.5 E.6 E.7 E.8 E.9 E.10

Goals and objectives (Larger reserves only) Structure plan (identifying the overall pattern of proposed uses/facilities/improvements/access and parking) Proposed uses and facilities Proposed pattern of access (roads, parking areas, footpaths, ORV tracks etc) Fire management Soil conservation/erosion control Management of Wildlife and vegetation Landscape protection/rehabilitation Reserve maintenance (including inspection, litter control etc) Visitor services (information etc)

F. Implementation F.1 F.2 F.3 F.4

Priority works/management programs (5 years) Proposals for staffing/expert assistance Proposed sources of funding Proposed by-laws/regulations/lease conditions etc

G. Maps and Diagrams G.1 G.2 G.3 G.4

Location/boundary/key features of reserve Management units (where applicable) Structure plans (where applicable) Concept plans for key areas/sites (including preliminary works drawings where applicable)

Where a management body does not comply with the requirements of a management plan, the management order may be revoked (see section 50(1) (b)).

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4.9.

Reserves

RESERVE ACTIONS (DEALINGS/TRANSACTIONS ON RESERVES) Reserve land, being a form of tenure of Crown land only, may be dealt with by -



the Minister under his or her powers under the LAA where the reserve has been created under the LAA;



another Minister or Statutory Authority under express powers set out in other written law creating that reserve; or



a management body who has power to deal in the land under a Management Order, and subject to the LAA.

For example, reserve land created under the LAA may be leased or licensed by the Minister for Lands. Similarly, easements or profits á prendre may be granted over reserved land created under the LAA. Whether the Minister for Lands has power to create other interests over reserved land created under other written law is dependent on that written law. See Paragraph 4.2.4. Where DoL proposes Crown actions in relation to reserved land, consideration must be made as to:



the type of reserved land, that is Class A reserve, or reserved land;



the purpose for which the reserve has been granted;



whether the reserve is managed or unmanaged – 

If the reserve is managed, any action proposed will be subject to the powers of that management body expressly set out in the management order;



Where the reserve is unmanaged, any action will be subject to the purpose of the reserve;



whether the reserve is a LAA reserve or a reserve created and vested under another statutory authority pursuant to another piece of State legislation;



actions proposed on a reserve is subject to the prior consent of the Minister for Lands in accordance with section 18 of the LAA, unless the transaction proposed falls within one of the exceptions in section 18. See Chapter 2 of this manual for further information.

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4.9.1.

Chapter 4

EASEMENTS OVER CLASS A RESERVES Once a reserve has been classified as a Class A reserve for a particular purpose, the Minister can only grant an easement under section 144 of the LAA or permit the creation of an easement (under section 148 of the LAA) over a Class A reserve under section 44 of the LAA. An easement over a Class A reserve can only be granted where: 

the Minister advertises his or her intention to so act in a newspaper circulating throughout the State, and



a proposal for the easement is laid before both Houses of Parliament in accordance with the procedure set out in section 43 of the LAA.

The Minister must advertise his or her intention in a State newspaper not less than 30 days before granting an easement or permitting the freehold owner of a Class A reserve to issue an easement. The advertisement must detail the reason for granting the easement and the purpose of the easement. Under section 43, the easement can only proceed where: 

a disallowance motion to the proposal for the easement is not made within 14 sitting days of either House of Parliament; or



a disallowance motion to the proposal for the easement is made within the 14 sitting days, debated and lost in 30 sitting days.

Where the disallowance motion is not debated within 30 sitting days, the proposal to grant the easement lapses and the process must be started all over again. The number of sitting days for the tabling of a proposal to grant an easement over a Class A reserve can be counted across different sessions of Parliament and across different Parliaments: see section 43(2) and (3) of the LAA. Easements over Class A reserves should be avoided, wherever possible. Use of existing roads or other ‘corridors’ through such reserves is to be encouraged. Where it is necessary to grant an easement through an A Class Reserve, the easement and the services it protects should constitute minimal interference with the reserve’s values and use and enjoyment by the public. The easement purpose should complement at least or be compatible with the purpose of the reserve. For example, a gas pipeline through a show ground reserve or an easement that requires substantial land clearing through a flora conservation reserve may not be appropriate. If such easements are essential, it will be necessary to ensure adequate conditions are contained in the easement document to provide protection and/or compatibility between the two purposes or to excise the area from the reserve. The Manager of the relevant Regional and Metro Services region should ensure that any high-risk easement (eg. gas pipeline) through a Recreation or high public use reserve makes comprehensive provisions to safeguard users against danger (eg. encasing pipe in concrete) and the agreed Crown indemnity clause is used. Where a Class A reserve is the subject of conditional tenure under section 75 of the LAA, and the landowner proposes to grant an easement using his powers under section 148 of the LAA, Registration Services should not accept such easement without first ensuring that 30 days’ notice of intent has been published in the newspaper and approval on behalf of the Minister has been granted after tabling in Parliament. No other transaction is permitted over a Class A reserve. If a particular transaction is essential over part of a Class A reserve, the land must first be excised from the Class A reserve and brought back to unallocated Crown land. The tabling process for excision of the

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land in section 43 of the LAA must be followed. See Paragraph 4.6.1.2 for details of this process. Once the land becomes unallocated Crown land, the powers of the Minister under the LAA can apply.

4.9.2.

TRANSACTIONS OVER RESERVES Transactions under the LAA over reserved land are dependent upon whether or not the reserved land is managed or unmanaged.

4.9.2.1.

TRANSACTIONS OVER MANAGED RESERVES Where a reserve is classified for a specific purpose and placed under the care, control and management of a management body, the management body may deal with the reserved land subject to 

the express powers granted to that management body in the Management Order; and



the consent of the Minister for Lands under section 18 of the LAA.

It should be noted that section46 (3b) of the LAA provides that where a management order has been issued to a state government agency or a Minister, the consent of the Minister for Lands under section18 of the LAA to a dealing in that reserve is not required unless the management order specifically requires such consent. Section 18(8) (d) of the LAA also sets out some exceptions when prior ministerial approval under section 18 is not required. 4.9.2.2.

POWERS OF LOCAL GOVERNMENT UNDER THE PARKS & RESERVES ACT 1895 Section 3.54 of the Local Government Act 1995 empowers Local Governments to exercise certain powers for the purpose of controlling and managing reserves placed under their care, control and management by the Land Act 1933 and, following its repeal, by the LAA. Under this section of the Local Government Act 1995, Local Governments have certain powers under section 5(1) of the Parks and Reserves Act 1895 to control and manage reserves, including the power to grant licences for 

the de-pasturing of animals on reserves; and



the removal of any sand, gravel or other earth or mineral, and for cutting and removing wood.

With the exception of section 5 of the Parks and Reserves Act 1895 as it relates to the exercise of certain management powers in relation to reserves by Local Government under the Local Government Act 1995, most of the management issues relating to reserves of Crown land are now covered by Part 4 of the LAA. The powers exercised by Local Government over reserves under the Local Government Act 1995 are statutory powers given to Local Government, and are in addition to the powers under the LAA. Licences prepared and entered into by Local Government (using the powers of a Board appointed under the Parks and Reserves Act 1895) are licences granted by Local Government under the Parks and Reserves Act 1895. However, Officers within the Directorate should note that section 5(1a) of the Parks and Reserves Act 1895 clearly provides that, unless the purpose of the reserve is the same as that for which the licence is proposed to be granted, Local Government cannot grant a licence for any of the two purposes set out in section 5(1)(e) and (f) of that Act without the prior approval of the Minister for Lands.

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In addition, officers within DoL should note that removal of any sand, gravel or other earth for non-covered purposes should be referred for Mining Act tenure as all such materials where occurring on Crown land are classed as minerals. 4.9.2.3.

LEASES OVER UNMANAGED RESERVES Sections 47 and 48 of the LAA provide for leasing of unmanaged reserves. Section 47 of the LAA empowers the Minister to grant a lease for the reserve purpose and permits mortgaging of such leases. The term of the lease should be limited to allow a review of the need for that reserve purpose. Section 48 of the LAA empowers the Minister to grant a lease for purposes other than the reserve purpose provided those purposes are compatible or ancillary to the reserve purpose. Such leases cannot be mortgaged. When exercising a power to grant a lease of an unmanaged reserve, DoL should take into consideration principles including but not limited to the following: 

When assessing requests for the leasing of a reserve, the Manager of the relevant Regional and Metro Services region should determine if the intended lease is for the benefit of the general community and will preserve the natural resources, recreational, social, environmental cultural and historical value for present and future generations. Alternatively, he or she should determine whether there is indeed a continuing need for this reserve.



Leasing of reserves should preserve the intrinsic community value of the land for benefit of present and future generations.



Leasing of reserves for commercial purposes is not appropriate. If a commercial lease is required, the Manager of the relevant Regional and Metro Services region should attempt to identify alternative Crown land available for leasing or sale, or the area of the reserve excised for leasing or sale. If there is no substantial community interest served in retaining the reserve, the Manager of the relevant Regional and Metro Services region should identify other Crown land for lease or sale or the area of the reserve to be excised for leasing or sale, and should progress consultations leading toward the reserves cancellation, to enable leasing or sale under Part 6 of the LAA.



Leases of reserves should not be approved or consented to if the lease is inconsistent with the reserve purpose or the future use of the land for that purpose.

Any decision to permit leasing of reserves should generally be for the benefit of the community. Generally commercial activities that restrict the free use and enjoyment of a reserve for its purpose, or are not conducive to the public’s enjoyment of the reserve, are not considered appropriate for leasing. Furthermore, any secondary interests granted over a reserve should not compromise the reserve purpose or benefit to the community. 4.9.2.4.

LICENCES OVER UNMANAGED RESERVES The Minister for Lands may issue licences, being a personal contractual right between the parties, over unmanaged reserves under 48 of the LAA to address short-term occupancy of reserved land. These licences may be for a purpose which is different from that or those of the unmanaged reserve, provided it is compatible with or ancillary to that purpose. Licence terms can be for any term but to facilitate flexible land management should be limited to a maximum of twelve months.

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As a licence is not an interest in land, it cannot be registered against the Crown title and a caveat cannot be lodged to protect that interest. 4.9.2.5.

PROFITS Á PRENDRE OVER UNMANAGED RESERVES Section 48 of the LAA also empowers the Minister for Lands to grant profits á prendre in respect of unmanaged reserves where the use of the reserve is compatible with or ancillary to the current use or intended use of that Crown land. Where a profit á prendre has been granted under section 48, the powers of the Minister to otherwise vary or change the profits á prendre are set out in section 91 of the LAA. A profit á prendre is only defined in the LAA as being such rights that are granted under section 91(1) of the LAA. Generally, at common law, a profit á prendre is considered to be such rights that are exercised by a person taking the natural produce or part of the soil from the land of another person. It can, but is not necessarily accompanied with the participation in the profits of the soil. When granting profits á prendre over Crown land generally, the following principles and policies should be borne in mind. The one exception is in relation to the granting of profits á prendre over unmanaged reserves. In that case, it must be emphasised that profits á prendre should only be granted over unmanaged reserves where the use of the reserve is compatible with or ancillary to the current use or intended use of that unmanaged reserve. The following principles must be borne in mind by DoL when considering a request for a profit á prendre under section 91 of the LAA: 

Profits á prendre may be granted for the harvesting of vegetation or the taking of materials from specified Crown land.



When an application is made for a profit á prendre, the Manager – Land Asset Management within the relevant region should:





consider whether the nature of harvesting warrants a longer term;



set terms and conditions allowing for renewal; and



determine the amount of royalty or profit sharing applicable and should require submission of regular returns.

Where taking of materials from the earth is proposed, the Manager of the relevant Regional and Metro Services region should consult with the Department of Mineral and Petroleum Resources. Where a proposed profit á prendre affects land the subject of mining or petroleum rights, the Manager within the relevant region of the Regional and Metro Services Division must obtain the agreement of the Minister for Lands and the Minister for Mines.



When considering a proposal for a profit á prendre, the Manager of the relevant Regional and Metro Services region must take into account other statutory powers and consider whether the Wildlife Conservation Act 1950 and the DoL/DEC Memorandum of Understanding in relation to the harvesting of wildflowers and seeds permit the Minister for Lands through DoL, to grant a profit á prendre.



In particular, the provisions of the CALM Act in relation to “forest produce” must be considered, as “forest produce” is a CALM responsibility with respect to Crown land.

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

Profits á prendre may be for any term, but to allow regular review, should be limited to relatively short periods with renewal options unless the nature of growth and harvesting (for example trees) requires longer terms.



Conditions of a profit á prendre should restrict development of permanent improvements.



Profits á prendre should require the provision of produce returns on a regular basis. Royalties may be charges under the terms of the agreement.



A document preparation and/or renewal fee, as prescribed, should be charged when granting profits á prendre.



In all cases, it is prudent for officers who are negotiating the terms of a profits á prendre to consult a DoL legal officer on the appropriateness of the terms of a profit á prendre.



DoL must charge the prescribed fees when preparing documents relating to profits á prendre.



Regular inspection should be made to ensure compliance with conditions and to monitor any damage to the land.



All profit á prendre documents must be lodged with the Registrar of Titles and will be registered on a Crown title.

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TABLE A List of Reserve Purposes for a Public Interest as at April 2001 Access Accessway Administration Centre Aerial Landing Ground Aged Care Aged Persons Accommodation Agricultural Hall Agricultural High School Site Agricultural Research Station Ambulance Depot Aquatic Centre Arboretum Arts Centre Bore Site Bowling Club Broadcast Buffer Strip Bush Fire Brigade Purposes Cables Camping Car Park Caravan Park Catchment Area Cemetery Site Chalets Child Care Centre Children’s Playground Church Site Civic Centre Clinic (Silver Chain Nursing Association Inc.) Club Premises Communication Site Community Care Centre Community Centre Community Hall Community Purposes Conservation Conservation of Flora and Fauna Conservation Park Court House Cultural Centre Cultural Purpose Cycleway Day Care Centre Depot Site Detention Centre

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Emergency Services Centre Environment Centre Equestrian Purposes Explosives Extension of Townsite Family Centre Farm School Fire Brigade Purposes Fire Rescue Fire Station Site Floodway Footway Foreshore Conservation Foreshore Management Foreshore Protection Forestry Purposes Forests Department Fremantle Port Authority Purposes Gardens Gas Pipeline Geodetic Station Goldfields Water Supply Administration Golf Course Government Requirements Gravel Hall Site Hall Site Boy Scouts & Girl Guides Harbour Extensions Harbour Purposes Health Health Centre Helicopter Landing Site Heritage Place Heritage Purposes High School Site Historic Site Historical Buildings Historical Purposes Horticulture Hospital Hospital and Allied Purposes Hostel Hotel Site Housing Housing Department of Hospital & Allied Services Infant Health Centre

Reserves

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Infant Health Clinic Intractable Waste Storage Site Irrigation Jetties Facilities Juvenile Detention Centre Kindergarten Landing Ground Landscape Protection Library Light Industry

Drain Drainage Drive-In Theatre Dune Protection Ecclesiastical Purposes Education Centre Educational Endowment Educational Purposes Effluent Disposal Electricity Purposes Electricity Sub Station Site Lighthouse Limestone Quarry Marina Purposes Marine Navigation Aid Marine Park Mechanics Institute Medical Centre Medical Residence Memorial Park Meteorological Station Microwave Translator Site Mill Site Minerals Mining Purposes Municipal Municipal Depot Municipal Purposes Museum National Park Natural Gas Pipeline Navigation Beacon Site Occupational Health and Safety Education Office Premises Padmount Site Park Parking Parkland Passive Recreation Pedestrian Access Pedestrian Accessway Picnic Ground Pipeline Police Police Complex Port Purposes Post Office Power Station Site Pre-Primary Centre

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Resource Centre Respite Centre Resting Place Rifle Range Road Board Office Road Purposes Rubbish Depot Rubbish Disposal Rubbish Dump Saleyards Salvation Army Sand Sanitary School Scout Hall Senior Citizens Centre Sewage Sewage Pumping Station Sewage Treatment Sewer Sewerage Sewerage Treatment Works Shire Depot Shire Housing Shire Office Shire Purposes Showground Single Persons Accommodation Staff Accommodation State Emergency Services Stock Route Stock Sales Stock Saleyards Stock Yards Stockpiling Stopping Place Storage Stormwater Sub Station Site Swimming Pool

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Tank Site Telecommunications Site Television Site Television Translator Site Tennis Courts Timber Tourism Tourist Centre Tourist Development Tourist Information Bay Town Hall Townsite Trades Hall Training Centre Transmission Line Transmitter Site Excepted From Sale Experimental Farm Trigonometrical Station Tropical Gardens Trucking Yard T.V. Repeater Site

Pre School Centre Primary School Site Prison Public Buildings Public Conveniences Public Purposes Public Recreation Public Utilities Public Utility Pumping Station Quarantine Quarry Racecourse Radar Site Radio Communications Site Radio Mast Site Radio Station Site Radio Transmitter Site Railway Recreation Regenerator Site Rehabilitation Centre Repeater Station Site

Water Catchment Water Pipes Water Mains Water Storage Water Supply Water Supply Depot Water Supply Purposes Water Tank Watering Place Waterway Welfare Purpose Works Depot Yacht Club Youth Centre

T.V. Transmitter Site Underground Cable Use and Benefit of Use and Requirements of Vehicle Parking Vehicular Access V.H.F. Radio Mast Site War Memorial Waste Disposal Site Waste Management Waste Water Water Water Bore

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CROWN LAND ADMINISTRATION AND REGISTRATION PRACTICE MANUAL

CHAPTER 05 ROADS

TABLE OF CONTENTS 5.

ROADS

5-1

5.1.

INTRODUCTION

5-1

5.2.

ROADS

5-2

5.3.

PRIVATE ROADS

5-4

5.4.

PEDESTRIAN ACCESSWAYS AND RIGHTS OF WAY

5-5

5.5.

CROWN RIGHTS OF WAY

5-6

5.6.

PROTECTED ROADS

5-7

5.6.1. DEFINITION AND BACKGROUND OF PROTECTED ROADS

5-7

5.6.2. EXCISIONS FROM STATE FORESTS

5-8

5.7.

DEDICATION OF ROADS

5-9

5.7.1. GENERAL 5-9 5.7.2. EXCEPTIONS TO UNALLOCATED CROWN LAND REQUIREMENT

5-10

5.7.3. DIFFERENT WAYS TO DEDICATE A ROAD

5-11

5.8.

CLOSURE OF PRIVATE ROADS

5-19

5.8.1. CLOSURE OF A PRIVATE ROAD AT THE REQUEST OF LOCAL GOVERNMENT

5-20

5.8.2. CLOSURE OF PAWS AND ROWS VESTED UNDER SECTION 20A OF THE TOWN PLANNING AND DEVELOPMENT ACT 1928

5-24

5.9.

CLOSURE OF PUBLIC ROADS

5-32

5.9.1. PRINCIPLES TO BE CONSIDERED BY DOL IN ROAD CLOSURES

5-32

5.9.2. POLICY PROCEDURES TO BE CONSIDERED BY DOL IN ROAD CLOSURES AND DISPOSALS

5-33

5.10.

MALL RESERVES

5.10.1. BACKGROUND INFORMATION AND PRINCIPLES FOR CREATION OF A MALL RESERVE

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5.10.2. CANCELLATION OF A MALL RESERVE

5.11.

5-36

PUBLIC ACCESS ROUTES

5-37

5.11.1. BACKGROUND INFORMATION

5-37

5.11.2. WHAT IS A PUBLIC ACCESS ROUTE (PAR)?

5-37

5.11.3. HOW TO CREATE A PUBLIC ACCESS ROUTE?

5-38

5.11.4. ALTERNATIVE TO PARS – PUBLIC ACCESS EASEMENTS

5-41

5.12.

REGISTRATION DOCUMENTS AND PROCESS

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5.

ROADS

5.1.

INTRODUCTION Part 5 of the Land Administration Act 1997 (LAA) provides the current primary legislative basis for the creation/dedication of roads and closure of roads and private roads in Western Australia. Before the LAA was proclaimed on 30 March 1998, the Local Government Act 1960 was the primary legislation for administering the creation, management and closure of roads. The provisions relating to roads in the Local Government Act 1960 were repealed and replaced by Division 1 of Part 5 of the LAA. The Main Roads Act 1930 also contains a legislative framework for roads, but more particularly in relation to highways, main roads and secondary roads. It should be noted that section 53 of the LAA provides that the Main Roads Act 1930 prevails where there is any inconsistency between the LAA and that Act. Where land becomes a main road (as distinct from being owned in fee simple by the Commissioner), the absolute property in the land over which a highway or main road is declared under the Main Roads Act 1930 vests in the Crown under section 15(1) of the Main Roads Act 1930. The Commissioner of Main Roads has the care, control and management of such a road and any “property” (as provided in Section 15(3) of the Main Roads Act 1930) placed on or upon or appurtenant to a main road vests in the Commissioner of Main Roads. If any action is required in relation to a private road or road, an appropriate search must be made at LANDGATE to determine its tenure, management provisions and whether or not there are encumbrances affecting the land the subject of the private road or road. Also, it is likely that public and private utility service providers will have overhead or underground installations located within a road corridor, for example power lines, gas mains, telephone cabling, water and sewerage mains. Contact needs to be made with all public utility service providers to advise them of any change in tenure to the road and obtain their comments and/or agreement to any tenure changes. Under the LAA, there are two types of roads:



roads; and



private roads.

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5.2.

Roads

ROADS Definition of a road

Roads are defined in section 3 of the LAA as (subject to section 54 of the LAA) being 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.

A road consists of the “road corridors” which is the cadastral boundaries of a land parcel created for road purposes. The cadastral boundaries define the legal limits of the road. Generally, a road corridors includes the constructed bitumen road, the kerbing and verge areas (for example: street lawns in urban areas, road side vegetation in rural areas) up to the boundaries of abutting land parcels. Roads are parcels of land used for the passage of pedestrians or vehicles or both and are dedicated to use by the public. At common law, the absolute property in land includes unlimited rights to the land below the surface of the road and the airspace above the road. That airspace is limited in height to whatever is necessary for the use and management of the road. However, the Courts have held that where the absolute property in land was vested by statute in a government entity, for example: Local Government, their interest in the land was limited to the statutory functions and powers of Local Government. Despite the Common Law view, section 55 of the LAA provides that the absolute property in a road revests in the Crown and is removed from the operation of the TLA. The State of Western Australia is the owner of all land in roads. Where the land is under the operation of an Act other than the LAA, the road is not usually revested as Crown land under the LAA. However, sometimes such land may be revested as Crown land under the LAA. This occurs to the extent permitted by that other Act and based upon the definition of “road” in the LAA to include one dedicated under another Act, and in conjunction with section 55 of the LAA. The care, control and management of roads is placed with the relevant Local Government in which the road is situated or, where the road is a main road or highway, with the Commissioner of Main Roads. For example, the Main Roads Act 1930 also contains a legislative framework for roads, but more particularly in relation to highways, main roads and secondary roads. Section 53 of the LAA provides that the Main Roads Act 1930 prevails where there is any inconsistency between the LAA and that Act. Where land becomes a main road (as distinct from being owned in fee simple by the Commissioner of Main Roads), the absolute property in the land over which a highway or main road is declared under the Main Roads Act 1930 vests in the Crown under section 15(1) of the Main Roads Act 1930. Where the road is a main road or highway, the Commissioner of Main Roads has the care, control and management of such road and any property placed on or upon or appurtenant to a main road vests in the Commissioner of Main Roads pursuant to section 15(2) and 15(3) of the Main Roads Act 1930. Any road may be dealt with under Division 1 of Part 5 of the LAA. This includes roads that were not dedicated under the LAA, but may have been dedicated or declared under other Acts (for example: Main Roads Act 1930) and at common law.

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Roads are sometimes also referred to as dedicated roads, gazetted roads, government roads or declared roads. For the purposes of the LAA, under section 54(a) of the LAA a road may have a 2 dimensional configuration (length and width), or, under section 54(b) of the LAA a 3dimensional configuration (length, width and height or depth or both) as specified in a plan or sketch plan lodged with the Registrar of Titles. A road may be situated in airspace, waters or, on the surface of or below the ground (including the bed of waters): section 54 of the LAA. For example, a 3-dimensional road may be constructed in tunnels, bridges and overpasses. In all cases, where roads are dedicated across a mining tenement, the mining tenement is “suspended” for so long as the land is a road. Where the road is either deviated or closed, the land the subject of the road automatically becomes subject to any existing mining tenement once again.

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Roads

PRIVATE ROADS Definition of a private road

Under section 3 of the LAA, a private road is defined as an alley, court, lane, road, street, thoroughfare or yard on alienated land or a right of way created under section 167A of the TLA which is not dedicated (under either written law or at common law) for use by the public but is shown on a plan or diagram deposited or shown in an instrument lodged with the Registrar of Titles and which 

forms a common access to land, or premises, separately occupied;



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



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;



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.

A private road is freehold land over which persons (and sometimes a limited class of persons) have a right of entry and access to adjoining properties. This right of access may or may not be subject to terms and conditions. Some examples of private roads include the following:



Parcels of freehold land owned by private individuals or companies and used for general access;



Rights of ways (“ROWs”) shown and marked on subdivision plans deposited with the Registrar which may be owned by private persons or the Crown.



ROWs or pedestrian accessways (“PAWs”) vested in the Crown under section 152 of the Planning and Development Act 2005 (PDA) (formerly section 20A of the PDA). ROWs and PAWs are however a special case, and are treated differently to private roads.

Any land that was previously taken or resumed by Local Government as a “right of way” or “right of way and recreation” remains a right of way and is not dedicated as a road by the mere act of taking or resumption (see section 6B of the LAA). Rights of way including rights of way with the benefit of an implied easement under section 167A of the TLA can be dealt with in the same manner as private roads and can be closed under section 52(1)(b) of the LAA.

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PEDESTRIAN ACCESSWAYS AND RIGHTS OF WAY PAWs and ROWs vested in the Crown pursuant to section 152 of the PDA are not subject to private access rights in favour of adjoining landowners under section 167A of the Transfer of Land Act 1893 (TLA). PAWs are created as a requirement of the WAPC as part of the subdivision of freehold land, as a means of pedestrian access between public roads, and for providing a corridor for public utility services. ROWs are created as a requirement of the WAPC upon subdivision to allow for existing or planned future public access over land by vehicles, cycles or pedestrians, usually where it is not considered appropriate or possible to dedicate land as a public road under the LAA or as a road widening under section 168 of the PDA.

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Roads

CROWN RIGHTS OF WAY Crown right of ways (“ROWs”) were created by the Minister for Lands under the Land Act 1933 or earlier legislation. These rights of way are not subject to private access rights in favour of adjoining landowners under section 167A of the Transfer of Land Act 1893 (TLA). These rights of way remain Crown land and are actually accessway reserves. When considering the legislative powers relating to these rights of ways, it is arguable that they fall within the definition of “roads” as these rights of way are not held in fee simple. Alternatively, they can be considered reserves and dealt with under Part 4 of the LAA.

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5.6.

PROTECTED ROADS

5.6.1.

DEFINITION AND BACKGROUND OF PROTECTED ROADS “Protected roads” are unsurveyed roads shown on LANDGATE Crown plans and original public plans (which have now been superseded by SmartPlan), extending only across unallocated Crown land, reserves and State forests. Where shown on a Crown plan, “protected roads” indicate the approximate position of a road. The purpose was to assist in future subdivision over the area and to indicate the presence of a road in the event of an enquiry over the land. Where a “protected road” was shown on plans after 1 July 1961 and is shown over a reserve, it is not legally available for public access unless it has been formally dedicated and removed from that reserve. The same principle applies to other forms of Crown tenure. For a “protected road” to be deemed to be for public use, it must have existed as LANDGATE’s plans prior to 1 July 1961 and must have been created over unallocated Crown land, or excised from the tenure and then created. Where a “protected road” is shown through a State Forest, and was not shown before 1 July 1961 that road is part of the State Forest and under the control of the CALM Act. Legally, it is not a road for public access unless it has been excised from the State Forest and dedicated (Paragraph 5.6.2). The term “protected roads” arose under sections 5 and 153 of the Road Districts Act 1932. Section 5 of the Road Districts Act 1932 defined a “road” to mean and include: any thoroughfare or highway which the public are entitled to use and every part thereof and all bridges and culverts and other things appurtenant thereto, and used in connection therewith, and includes any land marked as a road upon the plan of any lands publicly exhibited in the public office of the Department of Lands and Surveys, or on any plan deposited in the Office of Titles either prior to or after the passing of this Act. Section 153 of the Road Districts Act 1932 provided the following statement in relation to rights of way over vacant Crown land: No public right-of-way shall be acquired or be deemed to exist over unoccupied Crown land, unless such right-of-way has been officially marked upon some plan in the Department of Lands and Surveys. Prior to 1961, under the Road Districts Act 1932, a “protected road” or any road shown on a LANDGATE Crown plan was and remains a public road, and the local authority had control and power to finance its construction. After 1961, under the Local Government Act 1960, this power was lost and “protected roads” created after 1961 are not considered public roads. Section 6 of the Local Government Act 1960 contained the following definitions: “road” has the same name as “Street”. “Street” includes a highway; and a thoroughfare; which the public are allowed to use; and includes every part of the highway or thoroughfare, and other things including bridges and culverts, appurtenant to it. “allowed to use” where used in relation to public place; Street; or

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way; means a public place, a street, or a way respectively, 

which having been dedicated to use as such by the public under an Act or at common law, the public has a right to use as such;



but only while it is being used as mentioned in this paragraph, a place, a street, or a way, which not having been so dedicated, is being used as such by the public as a public place, public street, or public way with the permission express or implied of the person entitled to grant or refuse the permission substantially as if it were so dedicated and notwithstanding the exercise by the person entitled to exercise it of a right which temporarily interrupts that use whether the right is exercised for the purpose of precluding dedication at common law to that use or for another purpose.

Formal dedication may not have occurred under the Road Districts Act 1932, but it appears that the public was entitled to use “protected roads” under the Local Government Act 1960. It can be argued that there has been a common law dedication. The general principles in considering whether or not there is a dedication at common law, regard must be had to two principles: 

there must be an intention to dedicate the road by the person who created the road; and



there must be acceptance of that dedication by the public.

The intention to dedicate the road is readily inferred by the courts if the road communicates at each end with another road, and there is sufficient acceptance of that dedication by the public if members of the public have in fact used the road. The Local Government Act 1995 dispenses with the terms “roads”, “streets” and “highways”, and uses the term “thoroughfare”, which is defined as (section 1.4) “a road or other thoroughfare and includes structures or other things appurtenant to the thoroughfare that are within its limits, and nothing is prevented from being a thoroughfare only because it is not open at each end”. Section 3.53 of the Local Government Act 1995 places responsibility for controlling and managing “otherwise unvested facilities” with local governments. An “otherwise unvested facility” is defined by that section to include a thoroughfare “belonging to the Crown, the responsibility for controlling or managing which is not vested in any person other than under this section”. Given the above, there is a strong likelihood that “protected roads” and other roads established under the Road Districts Act 1932 are “thoroughfares” available for use by the public and managed by local governments. Protected roads that have arisen under the provisions of the Road Districts Act 1932 may be considered to be dedicated at common law and can be considered a “road” for the purposes of the LAA. Roads can be closed under section 58 of the LAA. See Paragraph 5.9.

5.6.2.

EXCISIONS FROM STATE FORESTS A protected road may exist through a State Forest however a comprehensive search of Statutory graphics would be needed in order to verify its existence. Should the search reveal the protected road does not exist then any rights of access, for public use, through a State forest either remains part of that State forest under the control of Department of Environment and Conservation DEC, or are a dedicated public road for use by the public excluded from the State forest. The procedure to excise land from a State forest can only proceed in accordance with section 9 of the CALM Act by an Order in Council made by the Governor and laid before both Houses of Parliament.

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5.7.

DEDICATION OF ROADS

5.7.1.

GENERAL Dedication is the act of declaring or setting apart a portion of land for use by the public as a road. Roads can be dedicated by registration of an Order of the Minister for Lands under the LAA or through a subdivision process of Crown or freehold land. Roads on freehold land can be dedicated through a subdivisional process under section 168 of the PDA, (dealing with freehold subdivisions) or, by order of the Minister for Lands under section 56 of the LAA. In all cases, before the Minister can proceed with a request to acquire land and dedicate a road over unallocated Crown land, the existence of any native title rights and interests affecting the parcel of land the subject of the dedication must be considered. Before land can be dedicated, a tenure search and where necessary, a historical tenure search must be undertaken. In all cases, for the purpose of maintaining a database within LANDGATE of all Crown actions undertaken, consideration needs to be made by Officers within the DoL as to whether or not the Native Title Act 1993 applies. If it is determined that the Native Title Act 1993 does not apply, dedication of the land as a road can proceed. Where the Native Title Act 1993 does apply, native title future act processes must be followed. For more information, see Chapter 9 of this manual. Subject to a number of exceptions including those set out below, before Crown land can be dedicated, there are at least two preconditions that should be satisfied: 

all existing tenure, status orders, interests, encumbrances and caveats affecting that parcel of Crown land must be cancelled, surrendered, discharged, forfeited, withdrawn or otherwise removed; and



the land must be brought back to unallocated Crown land status.

In some cases, this may require a “taking” of the relevant interests, including native title rights and interests, in the land.

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EXCEPTIONS TO UNALLOCATED CROWN LAND REQUIREMENT The exceptions to the removal of all tenure, status orders, interests and encumbrances over Crown land to bring it back to unallocated Crown land are as follows:

5.7.2.1.

MANAGEMENT ORDERS Management orders are a type of status order created for the purpose of granting to any one or more persons the care, control and management of a reserve for a particular purpose. A management order, once registered, attaches to the reserve itself. While the reserve is contained within an identified parcel of land, the management order will always remain with the reserve despite any changes to the reserve itself. As a matter of business practice, management orders do not need to be amended or revoked when a reserve is amended for the purpose of removing an area of land for the dedication of a road. Where local government manages the land, section 55(2) and (3)(b) of the LAA support this principle. However, interests created by the management body will be created over the particular parcel of land the subject of the reserve and will need to be cancelled, surrendered, discharged, withdrawn or otherwise removed over the portion of land to be dedicated as a road.

5.7.2.2.

PRIVATE ROADS Amendments made to section 56 of the LAA by the Land Administration Amendment Act 2000 now provide that a private road, being alienated land, can be dedicated directly as a road for public use, without it having to first revest as unallocated Crown land. However, there is still a general requirement to remove any encumbrances, other interests and caveats affecting that parcel of alienated land. Section 56 (6) of the LAA excludes any interest-holder from claiming compensation for loss of interest due to dedication.

5.7.2.3.

MINING OR PETROLEUM RIGHTS Mining or petroleum rights, as defined in section 3 of the LAA, do not need to be removed prior to the dedication of land as a road. Section 55 of the LAA provides that the absolute property in land comprising a road revests the land in the Crown and where applicable, removes the land from the operation of the TLA or the Registration of Deeds Act 1856 and revests it under the LAA. This has the effect of suspending any rights to mine for minerals within the meaning of the Mining Act 1978 until the road is closed under section 58 of the LAA. When a road is proposed to be closed, the Department of Industry and Resources should be informed because of the effect this has on the rights to mine for minerals under the Mining Act 1978 , and as a consequence of section 16(3) of the Mining Act.

5.7.2.4.

EFFECT OF THE DAMPIER TO BUNBURY PIPELINE ACT 1997 Where land has been designated as land within the DBNGP Corridor within the meaning of the Dampier to Bunbury Pipeline Act 1997 (“DBP Act”), the restrictions on land in the DBNGP Corridor provided by section 41(2) of the DBP Act will prevail over and qualify the exercise of statutory powers under any other written law. In such circumstances, a road cannot be dedicated under section 56 of the LAA if the construction and/or dedication or declaration of a road over the DBNGP Corridor can reasonably be expected to materially interfere with the exercise of existing or future rights of the DBNGP Land Access Minister for the purpose of having, constructing or operating any pipeline for transporting gas on the DBNGP Corridor. In every case where it is proposed to construct a road over the DBNGP Corridor, the prior approval of the DBNGP Land Access Minister must be obtained.

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5.7.3.

DIFFERENT WAYS TO DEDICATE A ROAD

5.7.3.1.

SUBDIVISION AND DEVELOPMENT OF CROWN LAND The Minister for Lands is empowered, under section 27 of the LAA, to subdivide and develop Crown land into lots. Where a plan of survey subdividing Crown land is approved by an authorised land officer (defined in section 3 of the LAA), any roads shown on such plan of survey are automatically dedicated as a road and placed under the care, control and management of Local Government (section 28(1) of the LAA). Where lots the subject of the subdivision are intended to be sold and transferred into the freehold for the purposes of selling that Crown land under section 74 of the LAA, the approval of the WAPC pursuant to section 27(5) of the LAA must be obtained.

5.7.3.2.

SUBDIVISION OF FREEHOLD LAND Where the owner of freehold land wishes to subdivide such land into lots for disposal, the owner must prepare a plan of subdivision for that purpose. Section 168 of the PDA provides for the automatic dedication of roads within that freehold plan of subdivision once the plan is deposited with LANDGATE and approved by the Inspector for Plans and Surveys.

5.7.3.3.

REMOVED

5.7.3.4.

DEDICATION OF ROADS UNDER THE PLANNING AND DEVELOPMENT ACT 2005 Land acquired to extend or improve roads will be dedicated as a road on the lodgement of an approved plan of subdivision and registration of an Application for New Title the subject of the plan under section 168 of the Planning and Development Act 2005. Legally and by statute, there are 4 ways to dedicate land under the PDA: 

Section 168(1) and (2) allow for dedications of new roads.



Section 168(5) allows for the automatic dedication of land to be added to an already existing road by the registration of a Transfer document with the Registrar of Titles.



Section 168(3) dedicates any road shown as “road widening” on a plan of subdivision on the date the new titles for the lots the subject of the plan are created and registered.

However, following the implementation of SmartRegister, no new part lots can be created, with the exception of some Crown land situations. New survey plans must now show any residue land as a separate lot or lots. For further information, see Paragraphs 1.20, 9.140 and 20.20 of the Survey and Plan Practice Manual. Hence, the ability to dedicate land under section 168 of the PDA is now limited by the requirements set out by the implementation of SmartRegister. Local Governments should be aware that this is an alternative way to enable them to dedicate land the subject of road widening as roads. 5.7.3.5.

COMMON LAW DEDICATIONS In relation to roads created before the Local Government Act 1960 came into force, dedication at common law also has to be considered. In considering whether or not there is a dedication at common law there must be: 

an intention to dedicate the road by the person who created the road; and

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

acceptance of that dedication by the public.

The intention to dedicate the road is readily inferred by the Courts if the road communicates at each end with another road, and there is sufficient acceptance of that dedication by the public if members of the public if members of the public have in fact used the road. 5.7.3.6.

DEDICATIONS UNDER SUPERSEDED LEGISLATION Roads may have been dedicated under superseded provisions of legislation for which there are now no corresponding powers, for example-

5.7.3.7.



Section106 of the Land Act 1933 – declaring of public roads through pastoral leases (such road is a thoroughfare within the meaning of section1.4 of the Local Government Act 1995 and via section3.53 of that Act, comes within the care, control and management responsibilities of the relevant Council.



Section 105 of the Public Works Act 1902 – declaring as public road, land resumed for railways.



Former section 3.49 of the Local Government Act 1995 - until its repeal in 1998, section 3.49 of the Local Government Act 1995 provided for private thoroughfares to be made public upon notice being publicised by the local government.

DEDICATION OR DECLARATION OF ROADS UNDER THE MAIN ROADS ACT 1930 Under section 13 of the Main Roads Act 1930, the Commissioner of Main Roads may declare (by Governor’s proclamation), any land as a highway or a main road. Where a main road or highway is opened to the traffic by the Commissioner of Main Roads, section 14 of the Main Roads Act 1930 provides that such road shall be deemed to have been proclaimed as a main road or highway. On declaration or proclamation under sections 13 or 14 of the Main Roads Act 1930, the absolute property in land over which a highway or main road is declared shall vest in the Crown under section 15(1) of that Act. Where the Commissioner of Main Roads seeks to acquire and subsequently dedicate or declare a main road or highway under the provisions of the Main Roads Act 1930, Main Roads WA should do all consultation with other bodies for the acquisition, purchase or taking of the land. It is presumed that matters like consultation with relevant community and Local Government; planning assessment and liaison with relevant agencies would already have occurred at the time Main Roads enter onto the land for the purposes of constructing the main road or highway. Under section 13A of the Main Roads Act 1930, the Commissioner of Main Roads is required to consult local government before declaring a main road or highway and before making improvements to a main road or highway. In respect of Crown land only and in some limited cases, DoL performs these functions on behalf of Main Roads WA at their request. Where land needs to be taken for the purposes of a main road or highway, consultation with the community, adjoining owners, existing landowners, Local Government and planning issues should be and are considered by Main Roads WA. In addition, Main Roads WA should arrange for the preparation of the appropriate plan of survey and lodge it with LANDGATE. Main Roads WA have delegated authority under Parts

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9 and 10 of the LAA for the preparation of relevant documents for registration, for exampleTaking Order and removal of any encumbrances. Further detail on the business processes for declaration of roads under the Main Roads Act 1930 (as distinct to the dedication or roads process under the LAA) is still the subject of discussions between Main Roads WA and DoL. When those business processes are more clearly identified, they may be included in this manual. 5.7.3.8.

DEDICATION OF ROADS UNDER THE LAA Local Governments may request the Minister for Lands to dedicate land described in a plan of survey, sketch plan or document as a road under section 56 of the LAA where: 

the land (being alienated land or Crown land) has been reserved or acquired for use by the public, or is used by the public, as a road and such land is under the care, control and management of Local Government (section 56(1)(a) of the LAA); or



the owner of a private road or the adjoining owners apply to the Local Government and the private road has been constructed and maintained to the satisfaction of Local Government (section 56(1)(b) of the LAA); or



land comprising a private road has been used by the public for an uninterrupted period of not less than 10 years (section 56(1)(c) of the LAA).

Where land is being dedicated as a road at the request of Local Government under section 56(1)(a) of the LAA, indemnities must be obtained from Local Government and from the ultimate beneficiary indemnifying the Minister and DoL against claims for compensation and costs that may reasonably be incurred by the Minister in considering and granting the request to dedicate the land as a road (see section 56(4) of the LAA). If the land in a private road is dedicated as a road, the owner of that land and any other person having an interest in the private road (including any person with the benefit of a ROW under section 167A of the TLA) is not entitled to compensation on the dedication (see section 56(6) of the LAA). As such, indemnities from the Local Government, in the case of dedication of private roads under section 56(1)(b) or (c) of the LAA, are not required. Private roads owned by third parties can be dedicated by a Dedication Order under section 56 of the LAA. The Dedication Order, which will be endorsed on the freehold title, has the effect of transferring that private road to the Crown in the name of the State of Western Australia, and revesting the land as Crown land on registration of that Order. Where land is not a private road, the land must be unallocated Crown land and described in a survey plan. As such, where land is held in freehold and is not a private road, the freehold land must firstly be acquired either by agreement and all encumbrances affecting the land removed or withdrawn, or by compulsory acquisition. Where the land is acquired by agreement, it must be revested under section 243 of the TLA and section 82 of the LAA before it can be dedicated using the provisions in the LAA. Information to be provided by Local Government in its request to DoL to dedicate a road under the LAA Before Local Government can request the Minister for Lands to dedicate a road under section 56 of the LAA, Local Government must comply with the requirements set out in section 56 and regulation 8 of the Land Administration Regulations 1998. Tasks including, but not limited to the following, should be undertaken by Local Government before it makes a resolution to dedicate a road:

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

identify the land and in particular 

whether it has been or is to be reserved or acquired for use by the public under local government’s care, control and management;



whether the land already comprises a private road and a request has been made by either the freehold owner or a sufficient number of adjoining holders to local government requesting the dedication;



whether the land is a private road that has been used by the public for an uninterrupted period of not less than 10 years.



where the land is freehold land, set out all of the steps necessary to identify the freehold owner/s and where possible, obtain the freehold owner/s’ consent to the dedication. Where the freehold owner/s cannot be located, Local Government should undertake and provide evidence of searches of relevant registers and records to try and locate the freehold owner/s.



undertake a community consultation in relation to submissions received on the dedication request.



prepare a sketch plan or survey plan to describe the dimensions of the proposed road.



where the land is Crown land, Local Government should consult with the Manager of the relevant Regional and Metro Services region for the acquisition of the relevant parcel of Crown land for the purposes of the road dedication. Native title considerations should be addressed at this stage and a taking of Native title rights and interests in the land may need to occur, depending on State policy at the time.



where the land is freehold land and the request has been made by a sufficient number* of adjoining land holders, Local Government should obtain a copy of the application request/s together with details of the rateable value of all the rateable land relevant to the application to conform with section 56(1)(b) of the LAA. [* A sufficient number of adjoining owners is that number of adjoining owners required by section 56(1)(b)(ii) of the LAA – that is 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].



where the land is freehold land and has been used as a private road for a period of not less than 10 years, Local Government must: 

obtain written confirmation that the public has had the uninterrupted use of the private road for a period of not less than 10 years;



prepare a description of the section or sections of the public who have had the use of that land as a road; and



prepare a description of how the private road is constructed.

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

consult and refer the proposal to public utility service authority providers and obtain their agreement to the dedication.



pass a resolution to dedicate the land as a road.



where the land is freehold but not a private road, Local Government must provide Minister for Lands with an indemnity against any claim for compensation in accordance with section 56(4) of the LAA.

It is the responsibility of Local Government to carry out all the above steps. When it has completed all the above steps, Local Government may write to DoL with all information set out in the Regulations and outlined above requesting the Minister to dedicate of the road. The relevant checklists to be followed by Local Government when making its request to DoL to dedicate land as a road are set out in Tables D, E and F. DoL will not proceed with the request to close a private road unless all documents and necessary correspondence set out in the checklists at Tables D, E and F have been provided by Local Government. Please note that any omission to provide all relevant documents listed in the checklists will result in delays in finalising the road dedication. Except in relation to private roads owned by Local Government, DoL will not proceed with dedication of a private road unless the following issues have been clearly identified by Local Government: 

all parties have agreed to the dedication of the land as a road and the procedure is non-contentious;



the road is clearly constructed and maintained as a street in the traditional sense; and



the land has been used as a road by a broad section of the public, and that use has not been obstructed by gates at any time during the 10 year minimum period.

Once DoL receives all documents and request from Local Government, DoL will, on behalf of the Minister for Lands do the following: 

check instructions from the Local Government,



make sure WAPC approval has been obtained, where applicable,



check that Local Government have obtained agreement for the dedication process and have complied with section 56(2) of the LAA,



perform a tenure search and historical tenure search,



where the road is proposed over Crown land, ensure that the relevant interest holders and management body/statutory vestee has agreed to the removal of that parcel of land from its tenure/interest for the purposes of a road,



check to ensure all other interest holders and public and private utility service providers are agreeable to the dedication of the land as a road,



check to ensure that the Department of Industry and Resources and the Land Access Minister to the Dampier to Bunbury natural gas pipeline have agreed to the construction of the road (see Paragraph 5.7.2),



where the request is over Crown land, undertake necessary future act processes under the Native Title Act 1993 for the land,

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consider the request and, as delegate on behalf of the Minister for Lands 

grant the request to dedicate the land as a road; section 56(3)(a) of the LAA,



direct the Local Government agency to reconsider its request: section 56(3)(b) of the LAA, or



refuse the request: section 56(3)(c) of the LAA.

Prior to acting to dedicate the land as a road where the request is over Crown land, the Minister for Lands will, where necessary, undertake Native Title investigations over Crown land and seek to have all interests and tenure over the Crown land removed to enable the dedication order to proceed by preparing the appropriate documents for the removal or extinguishment of interests or management orders. In some cases, this may be achieved by the issue of a NOITT and a Taking Order. Once the Crown land has been cleared of all interests and status orders, it will become unallocated Crown land. The unallocated Crown land can be dedicated as a road upon the registration of a Ministerial Order (a Road Dedication Form LAA-1046) to that effect. Please note, forms are to be completed by DoL staff only, however examples of completed forms are available on DoL’s website for information purposes only). 5.7.3.9.

DEDICATION AS ROADS OF PAWS AND ROWS CREATED UNDER SECTION 152 OF THE PDA Section 152 of the PDA provides for the creation of pedestrian accessways and rights of way which vest in the Crown on the approval of a diagram or plan of subdivision in LANDGATE. PAWs and ROWs created under section 152 of the PDA are automatically 

created on the subdivision plan, and



vested in the Crown in freehold

on approval of a plan of subdivision in LANDGATE. By definition, PAWs and ROWs are private roads under the LAA. Being a private road under the LAA, PAWs and ROWs created under section 152 of the PDA also come within the definition of “thoroughfare” in section 1.4 of the Local Government Act 1995. As such, all these PAWs and ROWs come within the control and management of Local Governments under section 3.53 of that Act. It should be noted that land the subject of PAWs and ROWs to be vested in the Crown under the PDA are usually not subject to any encumbrances so it should not be necessary to consider the discharge or removal of any encumbrances prior to their dedication as public roads. It should also be noted that it is no longer required to revest the land as unallocated Crown land following amendments to section 56 of the LAA by the Land Administration Amendment Act 2000. Private roads can now be dedicated without revesting the land as unallocated Crown land or acquiring the private roads under section 52 of the LAA. Where local government requests the dedication of a PAW or ROW as a public road, the dedication process is relatively simple. Local Government will still have to undertake items (i)-(iv), (vii) and (viii) of the tasks set out in Paragraph 5.7.3.8 and headed “Information to be provided by Local Government in its request to DoL to dedicate a road under the LAA” and then request DoL to dedicate the PAW or ROW. However, once the request has been made to DoL, the following will be done:

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

check instructions from the Local Government;



check that Local Government have obtained agreement from the public and private utility service providers to the dedication of the land as a road;



check that Local Government have complied with section 56(2) of the LAA;



check that Local Government have obtained WAPC comments if the proposed road is under-width (that is less than 20 metres wide);



perform a tenure search (a historical tenure search will not be necessary as the land is already freehold land);



if the land is vested check to ensure that the management body (usually Local Government) have agreed to the dedication. This may be a simple matter if the request for the dedication is made by the management body itself;



check to ensure that all public and private utility service providers’ consents to the dedication have been obtained;



ensure that the balance of the land is shown as a new lot or lots on a deposited plan;



delegate of Minister for Lands to consider the request and where, acceptable, prepare a Dedication Order under section 56(3) of the LAA for signature by the delegate.

ROAD DEDICATION IN ASSOCIATION WITH SECTION 24KA OF THE NTA 1993 Section 24KA of the Native Title Act 1993 (NTA) is the mechanism where facilities for service to the public can be established for the benefit of the community as a whole (ie roads etc.) whilst maintaining the preferred policy of non extinguishment of native title. This means that the native title rights and interests affected by the doing of the future act continue to exist and are not extinguished. However, whilst the facility exists, those native title rights and interests have no effect on the construction, operation, use, maintenance or repair of that facility. Section 24KA applies to a future act if it is for the construction, operation, use, maintenance or repair of a facility by or on behalf of the Crown, local government body or statutory authority of the Crown in any of its capacities. Compliance with the Aboriginal Heritage Act 1972 still needs to occur, as this is a separate issue to native title. The use of the non-extinguishment principle in no way absolves the responsibility of DoL to address heritage issues under the Aboriginal Heritage Act 1972. Aboriginal heritage is an issue whether or not a future act process under the NTA is being followed. When Section 24KA is used, the NTA requires that the basic procedural rights that must be granted to the relevant Registered Native Title Claimants and Registered Native Title Body Corporate for the particular area: That they are notified of the State’s intention; and They must be given an opportunity to make comments relating to the proposed future act. Opportunity to comment is a procedural right that gives the relevant person or parties an opportunity to provide argument and information about their native title interests to the decision-maker. The intention of an opportunity to comment is to ensure that any possible

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impact of the proposed future act on native title rights and interests is considered when a final decision is made to proceed with the future act. Notification of the proposed future act must be given before the decision is made to proceed with the future act (ie before any approvals are given). NB Initial consultation with parties should occur prior to the Notification being sent out. Notifications for a Registered Native Title Body Corporate and Registered Native Title Claimant must be sent to the name and address that appears on the Native Title Register. Notifications for the Native Title Representative Body should be sent directly to the relevant representative body. The standard notification period is 30 days from the day that the native title parties receive the notification. Where additional information has been provided, extra time from the date that the native title parties receive the additional information should be given. This time should be limited to 14 days.

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CLOSURE OF PRIVATE ROADS Care should be taken to check the tenure of land the subject of a road to be closed to clearly identify the type of road that is the subject of the request, for example whether it is a private road, a road dedicated for use by the public, a Crown pedestrian accessway or a right of way, (see definitions in Paragraphs 5.2, 5.3, 5.4 and 5.5). Different processes and consultative requirements apply to the different types of roads. Public Roads may be closed under section 58 of the LAA while private roads may be closed under section 52 or section 56 (dedication) of the LAA. Generally, road closures will not be approved by the Minister or his or her delegate unless the road is to be totally amalgamated into adjoining land or is reserved with a management order to an appropriate management body. In general it is DoL’s preference that management responsibility for the land once the road has been closed is undertaken by local government.

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5.8.1.

Roads

CLOSURE OF A PRIVATE ROAD AT THE REQUEST OF LOCAL GOVERNMENT Any freehold land that comes within the definition of a “private road” under the LAA (see Paragraph 5.3) may be closed by the Minister for Lands at the request of Local Government. However, closure of PAWs and ROWs vested in the Crown under section 152 of the PDA is dealt with differently – refer Paragraph 5.8.2. For the purposes of this Paragraph, reference made to “private roads” will mean freehold land owned by private persons and not owned by the Crown or the State of Western Australia. Private roads (for the purposes of this Paragraph) generally consist of land set aside in older subdivisions of freehold land as laneways at the rear of residential lots. Fee simple title to the land in private roads usually remains in the name of the original subdivider, but who in fact has no further real interest in the land. Commonly, such landowners are long since deceased, or are defunct land development companies. The private road is subject to implied easements under section 167A of the TLA in favour of the residential lots created by the relevant plan of subdivision. Where private roads (being PAWs and ROWs held in freehold by the Crown or the State of Western Australia) are proposed to be closed, the procedure set out in Paragraph 5.8.2 should be followed. A private road may be closed under either section 52 of the LAA by way of an Acquisition Order (LAA Form-1000) made by the Minister following a request made by a local government in accordance with the provisions of section 52. A private road may also be dedicated as a public road under section 56 of the LAA, if the requirements in section 56(1)(b) or (c) are followed. Please note, forms are to be completed by DoL staff only, however examples of completed forms are available on DoL’s website for information purposes only). Registration of an Acquisition Order under section 52 extinguishes all rights, interests and encumbrances affecting the subject land and revests the land as Crown land. Where a private road is closed by an Acquisition Order under section 52 of the LAA, compensation is not payable to any person with an interest in the land (including the owner of the fee simple interest in the land) nor any person who may have the benefit of an easement over the private road created under section 167A of the TLA. Where the private road may have been taken or resumed for the purpose of a right of way or a right of way and recreation, the provisions of sections 188, 189, 190 and 191 of the LAA do not apply (see section 52(8) of the LAA). The closure of a private road by way of a Ministerial order known as an Acquisition Order should not proceed without clear evidence that: 

arrangements have been made to protect or relocate any public utility services currently installed within the private road;



reasonable objections by the landowner, adjacent property owners and owners of properties served by the private road have been satisfactorily addressed; and



the future use of the land is resolved.

Indemnities for closure of private roads are not required from the local government or the ultimate beneficiary against claims for compensation or cost, even where there are recorded interests against the affected land.

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Section 52(7) of the LAA provides that compensation is not payable to a person with a right or an interest in land the subject of a private road including a person who has the benefit of an easement created under section 167A of the TLA. Information to be provided by a local government in its request to DoL to close a Private Road owned by a private person (not being the Crown): Before a local government can request the Minister for Lands to close a private road, the local government must comply with the requirements set out in section 52 of the LAA and regulation 6 of the Land Administration Regulations 1998. The following tasks should be undertaken by the local government before it makes a resolution to close a private road: 

undertake a community consultation,



consult with WAPC/the Department of Planning,



discuss the proposed closure with landowners of the private road or take steps to locate the landowners or their executors,



liaise with adjoining landowners,



seek public utility service authority providers’ agreement to the closure, and



pass a resolution to close the road.

Where adjoining landowners are interested in purchasing part of the closed road for amalgamation with their land, Local Government should now also: 

arrange, with adjoining landowners, for a survey plan showing the manner of allocation of the closed road with adjoining land. The survey plan must be prepared by a licensed surveyor and must be approved by the WAPC (see section 52(2)(a)(ii) of the LAA). In doubtful cases or, where the local government has some difficulty in its discussions with adjoining landowners, the Manager of the relevant Regional and Metro Services region may be contacted for advice.

It will be the responsibility of the local government, who has the care control and management of land in roads and managed reserves within its district to carry out all of the above steps set out in this Paragraph on private road closures. When the local government has completed the above steps in Paragraph 5.8.1 under the heading of “Information to be provided by a local government in its request to DoL to close a private road owned by a private person (not being the Crown)”, it may write to DoL with all information set out in the checklist requesting the Minister to consent to the closure of the private road and agree to the proposed amalgamation of the land in the private road to adjoining landowners. Once the local government decides to write to DoL with its request to close the private road, a recent full market valuation must be obtained from the Valuer General. The Minister for Lands must have regard to the advice of the Valuer General as to the market value of the land. Exceptions to this requirement are set out in Regulation 12 of the Land Administration Regulations 1998. Normal pricing of Crown land at nominal rates per section (plus all statutory fees and charges) may also be applicable where: 

closure is part of an overall Local Government initiative to reduce crime or anti-social behaviour; or

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

closure is part of a Local Government planning initiative which would be frustrated by market value pricing; or



closure was not initiated by the adjacent landowners, they have little desire to acquire the land, and they are responding to some other initiative;



Local Government owns the freehold of the private road.

The checklist to be followed by a local government when making its request to DoL’s Land Management Directorate to close a private road is set out in Table A at the end of this chapter. DoL will not proceed with the request to close a private road unless all documents and necessary correspondence set out in the checklist at Table A have been submitted by the local government. Please note that any omission to provide all relevant documents listed in the checklist will result in further delays in finalising the road closure process. Once DoL receives all documents and request from a local government to close a private road, DoL will, on behalf of the Minister for Lands, do the following: 

check instructions from the local government,



check that the local government has obtained all clearances and interest holder agreements relating to the closed road,



check that WAPC has agreed to the road closure and proposed amalgamation,



perform a tenure search and historical tenure search (if necessary),



check the sketch plan setting out proposed allocation of the closed road with adjoining owners,



check any easement requirements of public utility service providers that can be created under section 167 of the PDA,



determine the purchase price, easement fees (if any) and any other relevant costs,



check the need to prepare any easements required under section 144 of the LAA, for example to Telstra for telecommunications purposes (that are not provided within section 167 of the PDA, and



submit the valuation, proposed purchase price and other costs and fees to the Minister or delegate for consideration under section 52 of the LAA.

The Minister or delegate has discretion as to whether or not to approve the closure of the road. Where the Minister or delegate approves the closure, the Minister or delegate’s approval is subject to and conditional upon: 

agreement by adjoining owners to pay the purchase price and all costs and fees for the closed road as approved by DoL,



approval by WAPC of the survey plan to be prepared by a surveyor for the closure and amalgamation with adjoining land,



all easements required by public utility service providers to be detailed and agreed, and



all land the subject of the proposed closure being amalgamated into adjoining land.

The Minister’s conditional approval for the Acquisition Order will be subject to all parties entering into an Offer and Acceptance based upon the agreed purchase price and all fees and costs and, the whole of the subject land in the closed road being amalgamated with adjoining land. Once the Minister has given his or her conditional approval to the closure of the private road, the Local Government will need to write to the adjoining owners and advise them of the

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purchase price to acquire part or whole of the closed road and the costs and fees payable to enable the closed road to be amalgamated with their adjoining land. A surveyor who has been appointed to prepare an acquisition plan (section 52(2)(a) of the LAA) and an amalgamation plan for the amalgamation of land in a closed road with adjoining freehold land, will need to discuss the proposed allocation with the adjoining owners, co-ordinate the placement of easements under either section 167 of the PDA or section 144 of the LAA, prepare the necessary survey plan and forward a copy of the survey plan for approval through the DoL and WAPC. In appropriate cases, the surveyor may wish to clarify certain aspects of the survey plan with DoL. Once the acquisition plan has been approved by WAPC and the plan lodged with LANDGATE, DoL’s standard form Letter of Offer & Acceptance modified if appropriate, will be forwarded to the adjoining landowners to enable them to submit a firm offer based on the agreed purchase price and costs for the acquisition and amalgamation of land the subject of the closed road with their land. All offers must be made for all the land the subject of the closed road before the Minister or his or her delegate will accept the offers and finalise the transaction by signing the relevant approved documents for lodgement with the Registrar of Titles to close the road and have the land in the closed road amalgamated into the adjoining land. DoL will also forward the State’s standard easement document under section 144 of the LAA to Telstra or the relevant service provider/s for telecommunications network services that has expressed a desire for an easement for its services and arrange settlement. Where Telstra or other relevant service provider requires an easement over the closed road before it is amalgamated with the adjoining land, the consent of the adjoining owner’s mortgagee (if any) to that easement is required. Where the consent of the adjoining owner’s mortgagee cannot be obtained, Telstra or other relevant service provider that requires the telecommunications network services facilities protected by way of easement must be informed that consent from the adjoining owner’s mortgagee has not been obtained. In such a case, Telstra or other relevant service provider should be made aware that, in the unlikely event of there being a power of sale by that adjoining owner’s mortgagee to the registered mortgage, Telstra’s or other relevant service provider’s easement lodged subsequent to the registered mortgage will be extinguished under section 110 of the TLA. Despite this, Telstra or other carrier can still enter upon that land to maintain its facilities pursuant to clause 7 of Division 4, Part 1 in Schedule 3 of the Commonwealth Telecommunications Act 1997. If there are other forms of easements that need to be prepared, the parties to that easement should arrange privately to have the easement prepared in time for settlement on the assumption that the land the subject of the closed road will be amalgamated with the adjoining land. The easement will be prepared between the new proprietor of the land and the easement holder and lodged simultaneously following lodgement of the Application for land the subject of the deposited plan, the Acquisition Order (approved Form LAA-1000) and the Conveyance and Amalgamation Order (approved Form LAA-1003). Please note, forms are to be completed by DoL staff only, however examples of completed forms are available on DoL’s website for information purposes only). Prior to settlement, the survey plan showing the amalgamated private road with adjoining land must be lodged and placed in order for dealings by LANDGATE before appropriate documents can be lodged for registration.

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The documents will normally comprise a Conveyance and Amalgamation Order (LAA Form1003), any relevant easements that may need to be lodged, and an Application for title for the amalgamated lot on a plan approved for dealing at LANDGATE. Refer to Paragraph 5.12 and Chapter 2 of this manual of this manual for further information on the registration of Crown interests. The road will only be closed once all relevant documents have been lodged and registered with the Registrar of Titles.

5.8.2.

CLOSURE OF PAWS AND ROWS VESTED UNDER SECTION 152 OF THE PLANNING AND DEVELOPMENT ACT 2005 The closure of Public Access Ways (PAWs) and Right of Ways (ROWs) held in freehold by the Crown, and controlled and managed by Local Government, are somewhat different to closure of private roads owned by private persons. PAWs and ROWs created on freehold plans of subdivision under section 152 of the Planning and Development Act 2005 are vested in the Crown in freehold. While they may meet the LAA’s definition of “private road”, they are dealt with differently from other private roads. In 1992, the former Department of Land Administration adopted a set of “Guidelines for Closure of Pedestrian Access Ways and Rights of Way”. This Paragraph updates the closure information and process requirements for PAWs and ROWs owned in freehold by the Crown. It should be noted by local governments in particular, that the information contained here encourages a higher level of consideration of broader planning issues, and wider consultation with affected parties. Provided the fee simple interest has not revested under section 243 of the TLA and section 82 of the LAA, such PAWs and ROWs come within the definition of “private roads”. These private roads vest in the Crown in fee simple at the time the Application for new titles is lodged the subject of that plan of subdivision. The consultative process to be undertaken by Local Government to close this type of a private road and requirements to be provided to DoL are somewhat different to private roads owned by private persons (see Paragraph 5.8.1). This is mainly because these PAWs and ROWs are created as part of a land planning requirement in new subdivisions to provide access for a number of users and for access to a range of facilities. They provide access around the neighbourhood for local residents (from house to house), to neighbourhood facilities such as shops, primary schools, local parks, bus stops, cycle paths and community facilities. They also provide access to district and regional facilities such as district shopping and community facilities, high schools, rail stations and strategic bus routes, major cycle and pedestrian routes and playing fields and larger parks. For the proportion of Perth’s population with no access to a car, the closure of PAWs and ROWs can have a significant impact on the trip length to access local facilities and public transport routes. The diversion of car users to walking/cycling trips for short journeys and onto public transport for longer journeys are recognised as important metropolitan policy objectives. The WAPC is obliged by the State Planning Strategy, and the Department of Transport by the Metropolitan Transport Strategy, to encourage reduced dependence on car travel for environmental, community and sustainability reasons. Unlike private roads held in fee simple by private persons, there are ongoing requests for PAW or ROW closure on security and amenity grounds. However, PAWs and ROWs provide cycle and pedestrian accessibility both within neighbourhoods and to local and district facilities including public transport, schools, shops, parks and community facilities. In considering closure requests for PAWs and ROWs owned by the Crown, a balance needs to

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be found between resident accessibility to facilities and public transport, and security and amenity. The impact of PAW closures on access to community and transport facilities is of particular concern to both DoL and the WAPC. The Commission’s Liveable Neighbourhoods Community Design Code adopts as an important principle good walkable access to local facilities – 400 metres maximum walk to neighbourhood facilities and 800 metres maximum to railway stations. A “ped shed” analysis measures how many residential lots within an 800-metre radius of the station (considered to be the maximum distance people will walk to the station) are actually within 800 metres walking distance. This helps to determine how well connected the streets are to the station. The target objective for new development complying with Liveable Neighbourhoods principles is that 60% of lots should be within the walkable limits. With these factors in mind, the WAPC asked in 1999 that the 1992 DOLA/WAMA Guidelines be amended in the following manner: 

Compulsory referral to nominated government agencies in certain cases, particularly to the (former) Department of Transport (now DoL) if the closure application is within 800m of a railway station or 400m of a bus stop;



Compulsory inclusion of a “ped shed” analysis to indicate the impact on access to neighbourhood and district/regional facilities;



A presumption against closure in strategic cases – eg within 800 metres of a railway station or arterial bus route and within 400 metres of shops, parks, schools, bus stops and community facilities;



Greater weight to be given to State planning, transport and disability policy considerations in evaluation closure proposals;



Inclusion of a requirement for Councils to prepare a comprehensive assessment report for public advertising and referral to the Commission;



A compulsory letter drop to all local residents during advertising.

The WAPC also asked that alternative options to PAW closure be examined and promoted including: 

Temporary closures;



Improvements to safety and security eg. lighting, active graffiti removal;



Redevelopment opportunities through local planning reviews to increase PAW widths and provide frontage development for surveillance;



Using landscaping to make fences more difficult to climb (eg bougainvillea).

In March 2001, new business rules were adopted in association with the introduction of SmartRegister and SmartPlan, LANDGATE’s electronic titling and mapping systems. These rules required that all amalgamations of Crown land with adjacent freehold properties be effected via a subdivisional plan. Such plans require WAPC’s approval. Without WAPC approval, amalgamation could not occur. Full freehold subdivisional procedures were then implemented, including the use of WAPC Forms 1A and 1C. On 14th November 2002, the Hon Minister approved: i)

a Planning Bulletin;

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ii)

The DOLA Policy document being reduced to high-level policy issues, with an associated procedural guidelines document.

Planning Bulletin number 57 was issued in May 2003 with an associated Ministerial press release. The Planning Bulletin establishes policy and procedures in relation to closures of PAWs and ROWs and should be referred to for further detail. If WAPC has not agreed up front to a PAW or ROW closure, them DoL must take no further action. 

5.8.2.1.

In general terms, a closure of a PAW or ROW should not proceed without Local Government and DoL taking into consideration matters including but not limited to the following: 

consideration of equity of access particularly with regard to disability and age;



agreement being reached for either acquisition and inclusion of the subject land in adjoining properties, or for other acceptable land management arrangements;



evidence that arrangements have been made to protect or relocate any public utility services located within the PAW or ROW;



evidence that reasonable objections to the closure raised by adjacent property owners and owners and residents of properties served by the PAW or ROW have been addressed; and



evidence that relevant transport and planning considerations have been taken into account and issues raised by DoL and other relevant government departments has been properly considered.



The proposed closure and disposition of land in a PAW or ROW should be determined and referred to DoL/WAPC and public utility service authorities at the outset for agreement to the proposed closure and amalgamation into the adjoining land. However, it should be noted that the Minister for Lands retains the final statutory discretion on the disposition of the PAW or ROW under the powers contained in the LAA.



Generally a PAW or ROW will only be closed when it can be sold to the adjoining landowners or reserved and vested in an appropriate agency for public utility purposes. As a general principle, each adjoining landowner may have an equal share of the PAW or ROW. This principle does not apply where any services requiring easements dictate other (unequal) land allocation for good planning reasons. Land sharing arrangements such as equal or whole areas should be utilised to avoid survey costs. However, if there is no choice in the allocation of land, the adjoining landowners should agree to the additional survey costs required, as they will be liable to pay such costs.



A resolution of the local government recommending closure of a PAW or ROW is required prior to the Minister for Land’s consideration for closure of a PAW or ROW. As in the case of a closure of a private road, DoL/Statutory Planning will only recommend closure of a PAW or ROW where it is requested by the local government agency and is submitted with all relevant documents set out in the checklist and forwarded to DoL in accordance with the checklist set out in Table B.

WHAT LOCAL GOVERNMENT PAW OR ROW

SHOULD DO WHEN IT RECEIVES A REQUEST/APPLICATION TO CLOSE

A

Where Local Government receives a request/application to close a PAW or ROW, it can charge an administrative fee to cover its costs relating to a request to close a PAW or ROW. Such administrative fee may be supported under Subdivision 2 of Division 5 of Part 6 of the Local Government Act 1995 as a fee imposed for the supply of a service at the request of a

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person. Where Local Government proposes to apply a fee, it should comply with the provisions set out in Division 5 of Part 6 of that Act. 5.8.2.2.

LOCAL GOVERNMENT’S INITIAL ASSESSMENT TO CLOSE A PAW OR ROW Local Government should carry out an initial assessment following the request to close a PAW or ROW. That assessment should include the following actions: 

consideration of the impact of closure of the accessway on local pedestrian/cycle connectivity, that is, the additional distance required to be travelled to get from one end of the PAW or ROW to the other after closure, as well as the impact on traffic and activity on remaining PAWs or ROWs;



consideration of the impact of closure of the PAW or ROW on safe access to neighbourhood and district facilities, including: 

schools and other educational facilities



shopping facilities



parks and recreation facilities



community facilities



employment



public transport services, including bus stops and train stations



aged person and disabled facilities;



preparing documentation on the impact of closure by a walkable assessment (“ped shed”) analysis, notionally for all affected areas within 400m of neighbourhood facilities (listed above) and bus stops, and for all affected areas within 800 metres of a town centre, rail station, arterial bus route, high/technical school and district open space;



consideration of the role of the PAW or ROW as part of a wider pedestrian/cycle network or continuous access routes, as reflected in any local access plan or in any Local Planning Strategy;



consideration of the length of alternative routes and their safety, extent of surveillance, amenity, useability gradient and convenience of use, especially for the disabled and elderly;



consideration of the crime/social difficulties being experienced by the adjoining landowners should be documented and supporting evidence provided;



taking into account the views of the adjoining landowners to the PAW or ROW closure and obtaining a general commitment to purchase the land following the closure of the PAW or ROW. The application will not proceed unless the whole of the land the subject of the PAW or ROW can be sold or reserved;



have some idea of the valuation of the land comprising the PAW or ROW to identify an estimated or conditional purchase price. Discussion with Regional and Metro Services Division officers at DoL will assist in this area;



consideration of the alternatives to PAW or ROW closure including but without limiting the following: 

temporary closure, where practical;



improvements to safety and security, for example, lighting, active graffiti removal where funding is available;

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

longer term redevelopment opportunities through local planning reviews to allow up-coding of lots adjacent to essential PAWs or ROWs, conditional on widening of PAWs or ROWs to laneways and new frontage development (An example is set out in Tables G1 and G2);



more effective barriers (for example, higher fencing and prickly plantings which discourage access) separating private properties from adjacent PAWs or ROWs.



gates, open during daylight hours and locked at nights.

A decision to further progress or decline the closure request may include seeking the approval of the Local Government’s Planning and/or Service Committee. After taking into consideration all of the above, if Local Government still believes that the request to close a PAW or ROW is warranted and that land disposed of the closed PAW or ROW will proceed at a valuation agreed with DoL plus any statutory costs and charges, Local Government should then undertake the following coordination and consultation process set out in Paragraph 5.8.2.3. 5.8.2.3.

5.8.2.4.

COORDINATION AND CONSULTATION TO BE UNDERTAKEN BY LOCAL GOVERNMENT 

An Information Report prepared for public inspection during the advertising period that summarises the relevance of the accessway, the impacts of the closure on access to facilities including a ‘ped shed’/walkability analysis, alternative routes and their safety, and social/crime problems being experienced, as outlined in the Initial Assessment to be undertaken by Local Government. (An example is shown in Table H);



Signs of Notification are to be placed at each end of the PAW or ROW - the signs should state that closure is being considered, an Information Report outlining issues relating to closure is available for public inspection during the advertising period and submissions should be made to Council by a specified date;



an advertisement to be placed in a community newspaper and an advisory letter drop to residents/establishments within the affected area as indicated by the ‘ped-shed’ analysis;



referral to DoL and WAPC for agreement to the proposed closure and amalgamation into adjoining land. The Local Government should provide DoL and WAPC with a full copy of the Information Report. Where there is objection from DoL or WAPC, the Local Government should discuss the matter with a view to obtaining DoL’s and WAPC’s approval. Similarly, DoL and WAPC should liaise with the Local Government to ensure awareness of local issues before making its decision.



The comments of other relevant government agencies are to be sought including: 

Service authorities with regard to service relocation; and



other Government agencies where closure will affect access to facilities (for example Department of Education, Disability Services Commission).

LOCAL GOVERNMENT CONSIDERATION In forming its view on a proposed closure, Local Government should have due regard to: 

the impacts of closure as outlined in the Information Report;



the advice of relevant government agencies;



relevant transport, planning and disabilities policy considerations;



a general presumption against closure in strategic cases

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



within 800 metres of a town centre, railway station, arterial bus route, high/technical school, district open space;



within 400 metres of shops, parks, schools, bus stops, community facilities and aged persons and disabled facilities;



any PAW or ROW that forms a strategic element of a Local Government’s Pedestrian and Cycle network plan as incorporated in the Local Planning Strategy or similar; or in the absence of such a plan/strategy, a PAW or ROW determined by the Ministry to be part of a strategic network.

due regard to planning, transport, and disability policy considerations.

Local Government staff need to fully inform DoL of all the issues, and where DoL objects, discuss and negotiate with DoL. DoL should, for its part, liaise closely with Local Government staff in its considerations to close the PAW or ROW. 5.8.2.5.

INFORMATION TO PAW OR ROW

BE PROVIDED BY

LOCAL GOVERNMENT

TO

DO L

IN ITS REQUEST TO CLOSE THE

If Local Government resolves to proceed with the closure request, it is required to prepare a summary report for DoL including: 

the Information Report prepared for public advertising that outlines the impact of the closure on walkability to facilities, alternative access paths, if the PAW or ROW does/does not form part of a necessary continuous access system;



consideration of alternatives to closure;



details of the consultation process;



the number of objections and support plus comments;



documentation of the anti social behaviour and crime being experienced;



DoL and WAPC approval to the closure request and other relevant government agencies’ comments;



copies of letters from the adjoining landowners concerning the land sharing arrangement;



concept sketch plan of land allocation to adjoining owners. The sketch plan will need to identify the easements required under section 27A of the PDA or section 144 of the LAA;



copies of all letters from service agencies including advice regarding any easements required by the Local Government for drainage, etc;



confirmation that the Local Government has resolved to recommend PAW or ROW closure.

In addition to the above, Local Government should advise the adjoining landowners of its recommendation on closure to DoL by letter. Any objectors should be advised of Local Government’s recommendation and the reason for it. 5.8.2.6.

PURCHASE AND DISPOSAL ARRANGEMENTS In doubtful cases or, where Local Government has difficulty in its discussions with adjoining landowners or service authorities, or wishes to discuss other proposals in relation to the use

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of the land, for example, possible reservation requirements, the Manager of the relevant Regionald and Metro Services region may be contacted for advice. 5.8.2.7.

SERVICE AGENCIES To assist Local Governments in their consideration of a request to close PAWs or ROWs, service agencies’ responses to requests on proposed closures of PAWs and ROWs range from either no response, to a request for one of the following actions: 

request for easements – the surveyor will need to liaise with the service authority to identify the purpose and show the location and dimensions of the proposed easement on the survey plan.



request for relocation of services - need to consider the relocation costs involved in the relocation of services rather than the protection of the services by way of an easement. It should be noted that any cost of service relocation will be considered by DoL in a possible reduction of the purchase price for the closed PAW or ROW to be amalgamated into adjoining land.



where the proposed closure affects major services located in the PAW or ROW, the service agency or Local Government may require a management order of the closed PAW or ROW as a public utility reserve so that it may be fenced to prevent community access. If the services located in the PAW or ROW are major services, the assistance of DoL will need to be sought to consider the management responsibilities for this PAW or ROW. In these cases, DoL will usually require Local Government or the relevant service authority to accept a management order over the closed PAW or ROW. The responsible Local Government or relevant service authority can then make arrangements for fencing in the PAW or ROW with locked gates to prevent community access.

As a result of past negotiations carried out by DoL and relevant service authorities, the following general position can be used as an illustration: 

Western Power requires its underground cables to be the subject of an easement and encased in concrete;



Alinta Gas pipes can usually be cut; otherwise an easement will be required;



Water Corporation requires the following: 

where the service is a water main 100mm – this is to be cut and capped;



where it involves sewerage lines – an easement is required if the sewerage line is located any more than 1 metre from the new fence line;



where it involves a high pressure sewerage line – this cannot be cut and capped or relocated; a public utility reserve will need to be considered;



where larger water mains are involved – the cost of cutting and capping or relocating is prohibitive and a reserve for public utility may be considered.



Telstra usually accepts an easement for its underground cables;



Local Government drainage lines can usually be protected by way of an easement.

A PAW or ROW may contain several services, and practical solutions need to be developed to accommodate the needs of each service agency, while keeping costs down to a reasonable level, if closure is to proceed. Where easements are requested, adjoining landowners should be advised by Local Government that these service agencies, with easements, already have power to access and

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maintain the services. The easement will usually prevent the landowner from building or developing the land over the easement or installing a tree or any fixed structure. In cases like this, DoL has the discretion to limit or reduce the land purchase price where an easement severely limits the utilisation of the land or relocation costs may be required. Prior to settlement, the survey plan showing the amalgamated PAW or ROW with adjoining land must be lodged and validated and placed in order for dealings by DoL. As PAWs and ROWs created under section 152 of the PDA are owned in freehold by the Crown or State of Western Australia, this category of thoroughfare, known as a private road, can be closed by simply revesting the land under section 243 of the TLA and section 82 of the LAA by completing a Revestment Order (Form LAA-1043) and a Conveyance and Amalgamation Order (Form LAA-1003) and registering those documents with the Registrar of Titles. Section 167 easements created pursuant to the PDA can be created on the survey plan. Where section 144 easements are required, DoL will need to forward the State’s standard easement document pursuant to section 144 of the LAA to Telstra, Optus or the relevant service provider/s for telecommunications network services that has or have expressed a desire for an easement for its services and arrange settlement. Easements may also be required by other relevant parties, not being service authorities. For further information on easements, see Chapter 8 of this manual. The standard Telstra easement should be prepared with the land description showing the revested land description following the Revestment Order. If you are unsure of that land description, assistance and clarification can be sought from Crown Title Creation officers. Where Telstra requires an easement over the closed PAW or ROW before it is amalgamated with the adjoining land, the consent of the adjoining owner’s mortgagee (if any) to that easement is required. Where the consent of the adjoining owner’s mortgagee cannot be obtained, Telstra or other relevant service provider that requires the telecommunications network services facilities protected by way of easement must be informed that consent from the adjoining owner’s mortgagee has not been obtained. In such a case, Telstra should be made aware that, in the unlikely event of there being a power of sale by that adjoining owner’s mortgagee to the registered mortgage, Telstra’s easement lodged subsequent to the registered mortgage will be extinguished under section 110 of the TLA. Despite this, Telstra or other carrier can still enter upon that land to maintain its facilities pursuant to clause 7 of Division 4, Part 1 in Schedule 3 of the Commonwealth Telecommunications Act 1997. If there are other forms of easements (other than easements to service authorities) that need to be prepared, the parties to that easement should privately arrange to have the easement prepared in time for disposal action. The easement will be prepared between the new proprietor of the land and the easement holder and lodged simultaneously following lodgement of the Conveyance and Amalgamation Order. In this case, the land description for this easement will be the freehold land description of the land for the amalgamated lot.

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5.9.

Roads

CLOSURE OF PUBLIC ROADS Where a road dedicated for public use is proposed to be closed, it may be closed at the request of Local Government under section 58 of the LAA. The Local Government must allow 35 days after the publication in a newspaper for objections and must consider any objection before requesting closure. Regulation 9 of the Land Administration Regulations 1998 specify the procedural requirements of Local Government prior to submitting a request to the Minister for Lands.

5.9.1.

PRINCIPLES TO BE CONSIDERED BY DOL IN ROAD CLOSURES These are some of the principles which will be considered by DoL for a road closure request: 

Road closure should not occur if there is current use, an expected requirement, or it provides the only dedicated access to a land parcel, or creates a land locked parcel of land.



Closure that is likely to be detrimental to the value or utility of a land parcel should not be approved unless the landowner agrees.



Proposed closures in urban areas of full widths of a road, or closures which would create landlocked parcels should be referred by the Local Government to DoL for approval by the WAPC.



Services contained in a road should be protected. Written confirmation that arrangements have been made for the protection or relocation of the public utility services should be supplied by Local Government.



All proposals to close a road must be advertised by Local Government pursuant to section 58(3) of the LAA.



Any rights to mine for minerals within the meaning of the Mining Act 1978 suspended at the time of dedication cease to be suspended upon closure of the road.



All costs and disbursements relating to the closure must be considered and agreed to.

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POLICY PROCEDURES TO BE CONSIDERED BY DOL IN ROAD CLOSURES AND DISPOSALS



DoL should ensure that the road closure will not deny dedicated access to land when recommending approval to the closure.



Full details listed below and in Table C must be provided by the local government.



Where there is substantial opposition by affected parties to a proposed closure, the matter may be referred to the Minister for Lands together with any explanatory material provided by the local government.



Having regard to section 58(5)(b) of the LAA, DoL should advise the Department of Industry and Resources of road closures as mining rights suspended over the road take effect again.

Adjoining landowners or interested persons may apply to local government seeking a road to be closed. On receipt of that request, the local government must again undertake the following steps: 

undertake community consultation,



consult with the WAPC on the proposed amalgamation,



liaise with adjoining landowners, and



seek public utility service authority providers’ agreement to the closure,

In addition to the above steps that must be taken for the closure of a road, the local government should also 

liaise with Main Roads WA to ensure that they do not require the road for any other purpose,



advertise the proposed road closure in a newspaper circulating in its district, and



pass a resolution to close the road.

Where any adjoining landowners are interested in purchasing part of the closed road for amalgamation with their land, the local government should now also: 

arrange with adjoining landowners for a concept sketch plan showing the manner of allocation of the closed road with adjoining land. In doubtful cases or, where the local government has some difficulty in its discussions with adjoining landowners, the Manager – Regional and Metro Services in the relevant region may be contacted for advice.

It will be the responsibility of the local government, which has the care control and management of land within its district to carry out all of the above steps. When it has completed the above steps, it may write to the Minister with all information set out in DoL’s checklist requesting the Minister to consent to the closure of the road and agree to the proposed amalgamation of the land in the road to adjoining landowners. The checklist to be submitted by Local Government to DoL requesting the Minister to close a road is set out in Table C. Once the above steps have taken place, the local government may then make a final resolution to close the road. If the local government resolves to close the road, it may write to the Minister and request the Minister to close the road under section 58 of the LAA by sending DoL - a letter and completing DoL’s checklist to close a road.

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DoL will not proceed with the request to close a road unless all documents and necessary correspondence set out in the checklist at Table C are submitted. Please note that any omission to provide all relevant documents listed in the checklist will result in delays in finalising the road closure process. Once DoL receives all documentation (set out in the checklist at Table C and request from a local government to close a road, DoL will, on behalf of the Minister for Lands, do the following: 

check instructions from the local government,



check that the local government has obtained all clearances and interest holder agreements relating to the closed road,



check that the local government has provided evidence of advertising,



perform a tenure search and historical tenure search (if necessary),



check the sketch plan setting out proposed allocation of the closed road with adjoining owners,



check any easement requirements of public utility service providers that can be created under section 167 of the PDA,



obtain valuation,



determine the purchase price, easement fees (if any) and any other relevant costs,



check comments by WAPC (provided by the local government),



check the need to prepare any easements required under section 144 of the LAA, for example, to Telstra for telecommunications purposes (that are not provided within section 167 of the PDA, and



submit the valuation and determination of the purchase price and other costs and fees to the delegate for the Minister for consideration under section 58 of the LAA.

The Minister has discretion as to whether or not to approve the closure of the road. Where the closure is approved and there are interested adjoining owners, the Minister’s approval is subject to and conditional upon: 

agreement by adjoining owners to pay the purchase price and all costs and fees for the closed road,



all easements required by public utility service providers to be prepared and agreed, and



all land the subject of the proposed closure being amalgamated into adjoining land.

The Minister’s conditional approval for the closure of the road for amalgamation will be subject to all parties entering into an Offer and Acceptance based upon the agreed purchase price and all fees and costs and, the whole of the subject land in the closed road being amalgamated with adjoining land. Once the Minister, acting through a delegate, has given his or her conditional approval to the closure of the road, the local government will need to write to the adjoining owners with whom the local government has been liaising and advise them of the purchase price to acquire part or whole of the closed road and the costs and fees payable to enable the closed road to be amalgamated with their adjoining land. DoL will only finalise the Road Closure Order and Conveyance and Amalgamation Order when offers have been made for all the land the subject of the closed road and accepted by the delegate on behalf of the Minister for Lands.

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DoL will also forward the State’s standard easement document pursuant to section 144 of the LAA to Telstra, Optus or the relevant service provider/s for telecommunications network services that has or have expressed a desire for an easement for its services and arrange settlement. Where Telstra requires an easement over the closed road before it is amalgamated with the adjoining land, the consent of the adjoining owner’s mortgagee (if any) to that easement is required. Where the consent of the adjoining owner’s mortgagee cannot be obtained, Telstra or other relevant service provider that requires the telecommunications network services facilities protected by way of easement must be informed that consent from the adjoining owner’s mortgagee has not been obtained. In such a case, Telstra should be made aware that, in the unlikely event of there being a power of sale by that adjoining owner’s mortgagee to the registered mortgage, Telstra’s easement lodged subsequent to the registered mortgage will be extinguished under section 110 of the TLA. Despite this, Telstra or other carrier can still enter upon that land to maintain its facilities pursuant to clause 7 of Division 4, Part 1 in Schedule 3 of the Commonwealth Telecommunications Act 1997. If there are other forms of easements that need to be prepared, the parties to that easement should privately arrange to have the easement prepared in time for settlement on the assumption that the land the subject of the closed road will be amalgamated with the adjoining land. The easement will be prepared between the new proprietor of the land and the easement holder and lodged simultaneously following lodgement of the Conveyance and Amalgamation Order (approved Form LAA-1003). Prior to settlement, the amalgamation plan showing the amalgamated road with adjoining land must be lodged and validated and placed in order for dealings by LANDGATE before appropriate documents are lodged for registration. The road closure order will be lodged only when all associated land allocation documents have been returned to DoL. The documents lodged will usually comprise a Conveyance and Amalgamation Order, any relevant easements that may need to be lodged and an Application for new title for the amalgamated lot shown on a plan approved for dealing at LANDGATE. The process of preparing the relevant documents under the TLA and the steps to be undertaken from a Registration perspective is set out at Paragraph 5.12. The road will only be closed once all documents have been lodged with and registered by the Registrar of Titles.

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5.10.

MALL RESERVES

5.10.1.

BACKGROUND INFORMATION AND PRINCIPLES FOR CREATION OF A MALL RESERVE For more detail on the creation of a mall reserve and policies and procedures relating to its creation, see Chapter 4 (Reserves) of this manual.

5.10.2.

CANCELLATION OF A MALL RESERVE The cancellation of a mall reserve is another way to create a road. For more detail on the cancellation of a mall reserve, see Chapter 4 (Reserves) of this manual.

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5.11.

PUBLIC ACCESS ROUTES

5.11.1.

BACKGROUND INFORMATION Division 3 of Part 5 of the LAA (sections 63 to 71) enables the creation, variation, and cancellation of Public Access Routes (PARs). PARs are aimed at providing legal access across Crown land to remote sites of recreational or tourist interest (for example fishing or scenic spots), where a Local Government body does not wish to take responsibility for dedicated public roads.

5.11.2.

WHAT IS A PUBLIC ACCESS ROUTE (PAR)? Under section 65 of the LAA a PAR is a form of statutory easement (in the nature of an easement under section 144 of the LAA) granted by the Minister in favour of members of the public generally. PARs may be declared to provide access to areas of recreational or tourist interest, over Crown land whether unallocated or subject of reservation, management order, dedication, lease or any other tenure, or subject to an Act such as the CALM Act. It is important to note that there is no obligation on DoL, Local Government or the person holding an interest in the affected land to construct or maintain a PAR. Other important principles relating to PARs are as follows: 

No person can claim any loss or damage suffered while using or traversing on a PAR;



DoL, the relevant Local Government and any person with an interest in the Crown land over which a Public Access Route traverses, is not liable for any accidents, injuries, damages sustained while using the PAR;



The rights and obligations of an interest holder over the Crown land through which the PAR passes, is retained;



An interest holder is not entitled to any compensation for loss of value to his or her interest in the Crown land, due to the creation of a PAR;



It is an offence for persons using a PAR to hinder or obstruct the proper management of Crown lands the subject of a PAR;



It is an offence for PAR users to camp on a PAR or adjacent Crown land the subject of an interest, without the interest holder’s consent;



It is an offence to camp on Crown land without reasonable excuse and the permission of the Minister for Lands (see section 267 of the LAA); and



There is no legal responsibility to construct and/or maintain a PAR. However, any action undertaken by DoL, the Local Government body or any other person to construct or maintain a PAR may incur liability outside the requirements of the LAA and should be considered carefully.



The public use a PAR “entirely at their own risk”: section 66(6) of the LAA.

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5.11.3.

Roads

HOW TO CREATE A PUBLIC ACCESS ROUTE? If a PAR is required, parties desiring a PAR should write to the Minister for Lands, through DoL, requesting the creation of a PAR. Before the Minister will declare a PAR, the parties seeking the PAR must: 

obtain the consents of all interest holders of the Crown land through which the PAR is proposed;



inform any native title claimants of a proposed declaration of a PAR. A declaration of a PAR should come within the intent of section 24LA(1) and (2) of the Native Title Act 1993 and be a “low impact future act” with no procedural rights applying; and



identify, on a plan showing the exact location of the proposed PAR. A copy of the plan should be provided to DoL with the parties’ request.

As provided by (i) above, the consent of interest holders (such as pastoral lessees) is required for the creation of PARs over land the subject of an interest. Where there is doubt as to what constitutes an interest, reference should be made to the definition of “interest” in section3 of the LAA. It should be noted that while a management order, or a dedication/vesting of Crown land to the purposes of an Act such the CALM Act would not qualify as an “interest” for the purposes of the LAA, it is policy to seek the consent of a management body or a statutory body with vested rights to use and administer the Crown land before the Minister or his or her delegate seeks to declare a PAR over Crown land. Principles to be considered by DoL Once the above information is obtained, DoL should consider the request and forward a submission to the Minister on whether or not the PAR may be declared. In the course of making that decision, principles, including the following, will be taken into consideration by DoL: 

Costs to DoL of creating a PAR may be high, and in terms of – 

visits to the area by DoL employees to determine local conditions, define the PAR route, and consult with pastoral lessee; and later from time to time, as required;



advertising intention;



producing and replacing signs;



providing and installing traffic grids (or gates); and



providing funds for some maintenance, if necessary (say, under, management agreements with the pastoral lessee and groups such as TrackCare).



PARs should not be created unless DoL has a sufficient budget for associated costs.



PARs should not be created where there are likely to be substantial difficulties and/or costs.



PARs should not be created where there is a high volume of traffic, unless all other options have been exhausted.



PARs should not be created where the interest holder wants to manage the usage of the PAR.



PARs should preferably not be created in isolation, but should provide a link from a public road to an isolated point of recreational or tourist interest. However, a bypass providing access though a pastoral lease to the Canning Stock Route would qualify as a PAR.

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

Options which might be explored include: 

leasing and licensing Crown land proposed for a PAR to an interested management body:



reserving and giving a management order over affected Crown land to an interested group that is prescribed or has perpetual succession;



persuading the relevant local government to seek dedication of the relevant track as a public road.



Consents to a PAR being created over Crown land must be obtained from any person holding an interest in that land. Reasonable requirements of the interest-holder may need to be met, to obtain agreement (for example, some drainage works associated with the PAR).



While bodies holding management orders under the LAA, or having management under another Act such as the CALM Act would not qualify as “interest-holders”, nevertheless as a matter of policy their consent should be sought. DoL should not declare a PAR over Crown land dedicated to the purposes of another Act, without such consent.



Routes of PARs need to be defined on maps by LANDGATE. A plan of the PAR must accompany an order declaring the PAR, and be served on parties specified in section 64 of the LAA.



The actual route of a PAR may differ from that shown on the plan accompanying the order declaring the PAR.



A proposed declaration of a PAR must be advertised in a newspaper circulating in the State, with an invitation to members of the public to comment in writing within a 3month period – section 64(3)(b) of the LAA. Though not mandatory, it would be reasonable to pass a copy of this proposal to the Tourism Commission and the relevant local government, with a request for comment. There may also be consultation with relevant local tourism, conservation and other interest groups, and with TrackCare (on behalf of 4WD clubs).



The Minister for Lands must make any decisions to declare a PAR or to vary or revoke a declaration of a PAR.



An order declaring a PAR may be varied or cancelled by the Minister, subject to advertising, consultation and consents discussed in this section.



A copy of an order declaring a PAR must be served on the Registrar of Titles, any interest-holders and the relevant local government (see section64 of the LAA).



Interest holders should be informed that

they are not entitled to compensation for any loss of value in their interest over the land subject to the PAR;



their rights and obligations continue in relation to their interest over the land subject to the PAR;



it is an offence to hinder or prevent anyone from using the PAR;



they are not liable for any damages or injury suffered by users of the PAR;



they are not responsible for constructing or maintaining the PAR.

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



All parties need to be aware that

people use a PAR at their own risk: section 66(6) of the LAA;



State government, DoL, the relevant local government and any interest-holder are not liable for any damages or injuries suffered by people using PARs, and are not responsible for constructing or maintaining the PAR;



it is an offence to camp on Crown land the subject of a PAR, or adjacent to the PAR without consent of an interest-holder or the Minister;



it is an offence for a PAR user to interfere with the proper management of Crown land the subject of a PAR (for example a pastoral lease).

While this is not mandatory, it may be appropriate for DoL to provide signposting to: 

indicate the existence and extremities of the PAR (preferably with a map);



provide sufficient guidance for users of the route of the PAR;



set out the provisions of section66 of the LAA and advise that people use the PAR at their own risk;



highlight that the Minister for Lands is not obliged to construct or maintain the PAR;



state that the Minister for Lands is not an occupier for the purposes of the Occupiers’ Liability Act 1985;



state the nature of rights and responsibilities of PAR users;



if possible provide contact numbers for the nearest available aid and information.



Efforts should be made to negotiate with an affected interest-holder or voluntary track-care group for the erection and maintenance of these signs (and reimbursement of any costs).



While there may be good sense in negotiating a management agreement for the erection and maintenance of signs and maintenance of the PAR, legal advice indicates that DoL should not authorise maintenance of a PAR, as this could raise issues of liability.



Lessees cannot be required to undertake management of PARs and associated improvements (such as signs and cattle grids or gates), and there are issues of liability if DoL were to authorise such work.



DoL is required to install gates or cattle grids, where the PAR intersects an interestholder’s fence. Standards installation and the issue of costs involved will need to be resolved with the interest-holder.



PARs may be temporarily closed (in whole or in part) by the Minister, after consultation with the relevant local government (section 67 of the LAA). Notice in this regard is to be advertised in a State newspaper, and barriers and signs must be placed on or near the PAR advising of the closure and duration of closure.



Closure, whether temporary or otherwise, should only be undertaken after reasonable notice and opportunity to comment have been given to relevant recreational organisations.

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5.11.4.

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ALTERNATIVE TO PARS – PUBLIC ACCESS EASEMENTS As can be seen above, the policy considerations and principles for the creation of a public access route may be difficult to achieve. As an alternative to creating a PAR for public access, parties can also consider a public access easement. Public access easements are granted under section 196 of the LAA. For further information on public access easements, refer to Chapter 9 (Compulsory acquisition of interest in land) of this manual.

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5.12.

Roads

REGISTRATION DOCUMENTS AND PROCESS Examples of approved forms to be used for registration purposes on all Crown actions for roads are provided on DoL website. Please note these forms are provided for example purposes only. The forms are to be completed by DoL staff. Where there is any doubt in relation to the preparation of these forms, reference should be made to Chapter 2 of this manual and the relevant paragraphs in the Land Titles Registration Practice Manual. The most important factor to remember when preparing documents for registration purposes is to ensure that the land the subject of the road closure for amalgamation into adjoining freehold land must be contained within a Certificate of Crown land title and that it cannot be the subject of a Qualified Crown Land Title. It is not possible to lodge a Conveyance and Amalgamation Order from a Qualified Certificate of Crown land title unless that title has been validated through the validation process and has become a CLT. For further information on the validation process, see Chapter 2 of this manual. Please make sure that



you have an updated title search; and



the deposited plan is in order for dealing and has been approved by LANDGATE

before you prepare any of these documents.

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TABLE A Local Government Checklist to close a Private Road (where land owned by Person other than the Crown/State of Western Australia)

ITEM

DOCUMENTS TO BE PROVIDED

ATTACHED

1

Report and minutes of Council meeting recommending road closure

2

Signed copy of Council minutes of decision to close road

3

Copies of correspondence to owner of road to be closed Copies of responses, Submissions and Objections, if any. If owner is dead or unavailable, evidence to show searches undertaken by Council to locate owner of road or person with power to agree to close road (for example if natural person – electoral roll searches, Land Title Records. If Company – Australian Securities Commission Register)

4

Copies of correspondence to owners of adjoining land Copies of responses, submissions and objections, if any

5

Copies of correspondence to public utility service providers and other agencies confirming their agreement to the proposed closure       

Water Corporation Western Power Alinta Gas Telstra Department of Industry and Resources Dampier to Bunbury Natural Gas Pipeline (DPNGP) Land Access Minister DoL (Statutory Planning)

6

Sketch plan showing proposed allocation/sale of land in road to adjoining owners (to identify easements under either section 167 of the Planning and Development Act 2005 for drainage works, water, electricity or gas, if required or, under section 144 of the LAA)

7

Copies of correspondence from adjoining owners on the proposed allocation of land in proposed closed road

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TABLE B Local Government Checklist to Close a Crown PAW or ROW

ITEM

DOCUMENTS TO BE PROVIDED

ATTACHED

1

Summary/Information Report prepared for public advertising containing information set out in DoL’s Crown Land Administration and Registration Practice Manual at Paragraph 5.8.2: Copy of Information Report prepared for public advertising that outlines the effect of the closure on walkability to facilities, alternative access paths, if the PAW does not or does form part of a necessary continuous access system; Consideration of alternatives to closure; Documentation of the anti-social behaviour and crime being experienced and Council’s policy to combat it; Department of Planning other relevant Government agencies’ comments; Details of consultation process together with the number of objections and support plus comments; Copies of correspondence to owners of adjoining land as well as with those adjoining owners interested in the land sharing arrangement

2

Signed copy of Council resolution to close Way

3

Sketch plan showing proposed land allocation to adjoining owners or proposed use of land following closure (to identify easements under either section 167 of the Planning and Development Act 2005 for drainage works, water, electricity or gas, if required or, under section 144 of the LAA)

4

Copies of correspondence to public utility service providers and other agencies confirming their agreement to the proposed closure       

5

Water Corporation Western Power Alinta Gas Telstra Department of Industry and Resources Dampier to Bunbury Natural Gas Pipeline (DPNGP) Land Access Minister DoL (Statutory Planning)

Copies of correspondence from adjoining owners on the proposed allocation of land in proposed closed PAW or ROW

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TABLE C Local Government Checklist to close a Road (Dedicated Public Road)

ITEM

DOCUMENTS TO BE PROVIDED

1

Report/Background information to Councillors before Council Meeting to close road

2

Signed copy of Council Resolution to close road

3

Copy of advertisement to close road

4

Copies of any submissions and objections to advertisement

5

Signed copy of Council motion and comments on submissions and objections

6

Copies of correspondence to public utility service providers and other agencies confirming their agreement to the proposed closure       

7

ATTACHED

Water Corporation Western Power Alinta Gas Telstra Department of Industry and Resources Dampier to Bunbury Natural Gas Pipeline (DPNGP) Land Access Minister DoL (Statutory Planning)

Sketch plan showing proposed allocation/sale of land in road to adjoining owners (to identify easements under either section 167 of the Planning and Development Act 2005 for drainage works, water, electricity or gas, if required or, under section 144 of the LAA)

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TABLE D DoL Checklist to Dedicate a Road where the land is Reserved or Acquired for use by the Public as a Road under the Care, Control and Management of Local Government

ITEM

DOCUMENTS TO BE PROVIDED

1

Signed and dated copy of Council resolution to request dedication of road

2

Details of consultation process together with the number of objections and support plus comments including Local Government’s comments on these submissions

3

Indemnity in favour of the Minister for Lands against any claims for compensation and costs

4

Copies of correspondence to public utility service providers and other agencies confirming their agreement to the proposed dedication.       

ATTACHED

Water Corporation Western Power Alinta Gas Telstra Department of Industry and Resources Dampier to Bunbury Natural Gas Pipeline (DPNGP) Land Access Minister DoL (Statutory Planning)

5

Plan of survey, sketch plan or document to describe the dimensions of the road

6

Written confirmation that the Local Government has complied with section 56(2) of the LAA

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TABLE E DoL Checklist to Dedicate a Road where the Land comprises a Private Road constructed and maintained to the satisfaction of the Local Government and where the owner of Road, or abutting Owners, request Dedication. ITEM

DOCUMENTS TO BE PROVIDED

1

Signed and dated copy of Council resolution to request dedication of road

2

Copy of the application and where abutting landowners requested dedication, details of the rateable value of all the rateable land relevant to the application

3

Search information on ownership of the road and abutting land

4

Details of consultation process together with the number of objections and support plus comments including Local Government’s comments on these submissions

5

Copies of correspondence to public utility service providers and other agencies confirming their agreement to the proposed dedication   

ATTACHED

Department of Industry and Resources Dampier to Bunbury Natural Gas Pipeline (DPNGP) Land Access Minister DoL (Statutory Planning)

6

Plan of survey, sketch plan or document to describe the dimensions of the road

7

Written confirmation that the Local Government has complied with section 56(2) of the LAA

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TABLE F DoL Checklist to Dedicate a Road where the Land comprises a Private Road constructed and maintained to the satisfaction of Local Government, or which the Public has had uninterrupted use for a period of not less than 10 years

ITEM

DOCUMENTS TO BE PROVIDED

1

Signed and dated copy of Council resolution to request dedication of road

2

Written confirmation that the public has had uninterrupted use of the private road for a period of not less than 10 years

3

A description of the section or sections of the public who have had that use

4

A description of how the private road is constructed

5

Search Information on land ownership

6

Details of consultation process together with the number of objections and support plus comments including Local Government’s comments on these submissions

7

Copies of correspondence to public utility service providers and other agencies confirming their agreement to the proposed dedication   

ATTACHED

Department of Industry and Resources Dampier to Bunbury Natural Gas Pipeline (DPNGP) Land Access Minister DoL (Statutory Planning)

8

Plan of survey, sketch plan or document to describe the dimensions of the road

9

Written confirmation that the Local Government has complied with section 56(2) of the LAA

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TABLE G1 Redevelopment Options for PAWs

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TABLE G2 Redevelopment Options for PAWs

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TABLE H EXAMPLE OF INFORMATION REPORT – REQUEST FOR PAW CLOSURE PAW Location (Refer Attached Plan) Between Smith Street and Jones Road, Placeville.

LOCAL CONNECTIVITY Additional walking distance from one end of PAW to the other once closed: 375 metres using other PAWs 450 metres using the street system Will divert pedestrian cycle traffic predominantly to PAWs rather than street system Quality of Alternative Routes/Shortest alternative access also through PAWs with poor surveillance, especially along Walters Park boundary. No footpath on west side of Brown Boulevard. Brown Boulevard route involves steep uphill section heading north.

IMPACT OF CLOSURE ON ALTERNATIVE ROUTES Closure will increase use of two PAWs in Smith Street to access Walters Park

ACCESS TO FACILITIES Walters Park (local park) within 400m of PAW No. of houses within 400m walkable access if PAW open: 142 No. of houses within 400m walkable access if PAW closed: 83 %reduction in access: 41%

RELATIONSHIP TO STRATEGIC CYCLE/PEDESTRIAN NETWORK Strategic cycle network on Brown Boulevard PAW shown in Pedestrian Network Plan within Local Planning Strategy as a local rout as it serves a local park.

SOCIAL DIFFICULTIES Statement attached from landowners regarding anti-social behaviour in PAW.

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CROWN LAND ADMINISTRATION AND REGISTRATION PRACTICE MANUAL

CHAPTER 06 SALES, LEASES, LICENCES, ETC. OF CROWN LAND

TABLE OF CONTENTS 6.

SALES, LEASES, LICENCES, ETC. OF CROWN LAND

6-1

6.1.

INTRODUCTION

6-1

6.2.

WHO CAN SELL AND LEASE CROWN LAND

6-2

6.2.1. GENERAL 6-2 6.2.2. WHAT IS THE LAND DEVELOPMENT FUNCTION?

6-2

6.2.3. LANDCORP’S ROLE

6-3

6.2.4. DOL’S CONTINUING ROLE IN THE CROWN ESTATE

6-3

6.2.5. LEASES OVER CROWN LAND

6-3

6.2.6. LAND ASSEMBLY REQUIREMENTS

6-3

6.2.7. ADMINISTRATIVE SUBDIVISIONS OF CROWN LAND

6-4

6.3.

SALE OF FEE SIMPLE INTERESTS IN CROWN LAND

6-5

6.3.1. GENERAL 6-5 6.3.2. MINISTER’S DISCRETIONARY POWERS

6-5

6.3.3. METHODS FOR THE SALE OF CROWN LAND

6-6

6.3.4. CONVEYANCING PROCESS AND SETTLEMENT PROCEDURE

6.4.

6-11

SALE AND AMALGAMATION

6-12

6.4.1. GENERAL 6-12 6.4.2. EXERCISE OF THIS POWER

6-12

6.4.3. EFFECT OF ENCUMBRANCES AND OTHER INTERESTS

6-12

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6.5.

LEASE OF CROWN LAND

6-13

6.5.1. BACKGROUND – CROWN LEASES GRANTED UNDER THE LAND ACT 1933

6-13

6.5.2. CROWN LEASES ISSUED PRE-LAA

6-14

6.5.3. CROWN LEASES ISSUED POST-LAA

6-16

6.5.4. EFFECT OF MINING TENEMENTS OVERLAPPING LEASES AND EASEMENTS

6-16

6.6.

LEASES ISSUED OVER CROWN LAND

6-17

6.6.1. GENERAL 6-17 6.6.2. CONDITIONAL PURCHASE LEASES

6-18

6.6.3. GENERAL LEASES

6-20

6.6.4. CROWN LEASES OF UNMANAGED RESERVES

6-20

6.6.5. PASTORAL LEASES

6-21

6.6.6. LEASING OF CROWN LAND FOR TELECOMMUNICATIONS PURPOSES

6-21

6.6.7. LEASING FOR AQUACULTURE

6-22

6.6.8. LEASES OVER TENURES

6-23

6.6.9. STAMP DUTY IMPLICATIONS FOR LEASES OF CROWN LAND

6-24

6.6.10. LEASING UNDER RATIFIED STATE AGREEMENT ACTS

6-24

6.7.

CONVERSION OF STATE/CROWN LEASES INTO THE FREEHOLD

6-25

6.7.1. GENERAL 6-25 6.7.2. CONVEYANCING PROCESS

6.8.

6-25

LICENCES AND PROFITS Á PRENDRE GRANTED OVER CROWN LAND

6-26

6.8.1. LICENCES OVER CROWN LAND

6-26

6.8.2. PROFITS Á PRENDRE

6-26

6.9.

EFFECT OF IMPROVEMENTS ON TERMINATION OF LEASE OR LICENCE

6-27

6.9.1. GENERAL 6-27

6.10.

GENERAL DISPOSITIONS PROVISIONS

6-28

6.10.1. INTRODUCTION

6-28

6.10.2. REVESTMENTS

6-28

6.10.3. GRANTS TO ABORIGINAL PERSONS OF THE LAA

6-28

6.10.4. SUPERLOTS

6-29

6.10.5. DISPOSITIONS TO THE COMMONWEALTH, STATE GOVERNMENT AGENCIES, OR LOCAL GOVERNMENT 6-29 6.10.6. OPTIONS 6-29

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6.

SALES, LEASES, LICENCES, ETC. OF CROWN LAND

6.1.

INTRODUCTION Before the Land Administration Act 1997 (LAA) commenced operation on 30 March 1998, the Land Act 1933 provided a method to dispose of interests in Crown land. Subject to the provisions of other written law, Crown land could only be sold into the freehold or leased in accordance with the provisions of that Act. The general power to dispose of a fee simple interest in Crown land under the Land Act 1933 was by way of a grant by the Governor in Executive Council. Two of the more common methods to dispose of a fee simple interest in Crown land was by way of auction or, by inviting applications for the purchase in fee simple of Crown land. Once the proposed purchaser had applied (by way of an application in a prescribed form) for the fee simple interest in a parcel of Crown land, and that application was duly processed and if approved by the Minister for Lands, a Licence to Occupy was issued upon the payment of a deposit. Upon full payment and satisfaction of any relevant building or other conditions contained in the Licence to Occupy, a Crown Grant for the land was then made by the Governor and registered with the Registrar of Titles under the Transfer of Land Act 1893 (TLA). The LAA has simplified the process to purchase fee simple interests in Crown land by using conventional freehold conveyancing processes – a person can now purchase Crown land by entering into a Contract of Sale for the purchase of a fee simple interest comprising a defined parcel of Crown land and after settlement receive a certificate of title for that interest by registering a transfer under the Transfer of Land Act.

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6.2.

WHO CAN SELL AND LEASE CROWN LAND

6.2.1.

GENERAL On 3 May 2001, the Premier of Western Australia stated that the land development function carried out by the then Department of Land Administration’s (DOLA) Operations Directorate on behalf of the Crown would be transferred to the Western Australian Land Authority established under the Western Australian Land Authority Act 1992, more commonly known as LandCorp. The effect of this transfer of function did not change any of the other land related work or functions carried on by DOLA, functions which were transferred to DoL. In particular, DoL continues to maintain its role in Government land administration including -

6.2.2.



actions provided for under the LAA;



land assembly of Government land;



provision of advice and solutions on Government land issues where subdivision through capital expenditure is not contemplated;



leasing and licensing of Crown land and the sale of sundry Crown lots.

WHAT IS THE LAND DEVELOPMENT FUNCTION? The land development program, operated by DOLA and before it by the Department of Lands and Surveys, generally comprised all capital works projects for urban, commercial and industrial lots developed out of the Crown estate where those lots were sold to the public in freehold. The land development program included, amongst other functions, the following main types of projects: 

the subdivision of Crown land parcels and the provision of lots for residential, industrial and commercial use in regional towns along with provision of land for basic physical and social infrastructure;



The creation of land parcels at strategic sites (usually on the coast) for key tourism development like caravan park sites and holiday accommodation.

Following the Premier’s statement, all identified “Capital Works” projects were transferred to LandCorp. These projects included: 

staged ongoing and new subdivision projects;



all new projects as defined in the 5-year out program;



all proposals to service lots for sale to the public.

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LANDCORP’S ROLE Since 1 July 2001, LandCorp has continued as the State's agency for the creation and sale of serviced Crown land on a commercial basis. LandCorp is now responsible for subdivision and development of Crown land for sale to the public. The Crown land for subdivision is sold to LandCorp and transferred as freehold land: Land that has been earmarked for future development by LandCorp will remain Crown land administered by DoL. The land will not be sold to LandCorp until:

6.2.4.



DoL has completed all the land assembly requirements relating to the land;



Resolved Native Title Issues



A Crown land title has issued for the Crown land; and



The purchase price for the land has been paid.

DOL’S CONTINUING ROLE IN THE CROWN ESTATE DoL is the principle administration of Crown land and carries out the following functions for Crown Land:

6.2.5.



administer Crown land;



conduct land assembly for Government land;



support and advise other agencies in relation to Government land tenure issues under the LAA;



provide advice and input on land solutions over Government land;



liaise with LandCorp to complement the roles of the respective agencies;



sell Crown land to other government agencies, local governments and private customers.

LEASES OVER CROWN LAND DoL will continue to retain and manage the Crown lease portfolio of Special Leases created under the Land Act 1933, and general and other leases created under the LAA.

6.2.6.

LAND ASSEMBLY REQUIREMENTS Before Crown land can be transferred into the freehold, it should be brought back to unallocated Crown land, assembled as a lot, where any native title rights and interests are found not to have been extinguished over the land, the future acts processes under the Native Title Act 1993 must be followed in accordance with current State Government policies. DoL will carry out all investigations in relation to the land, preparing all relevant conveyancing documentation to achieve the required transaction.

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6.2.7.

Sales, Leases, Licences, etc. of Crown Land

ADMINISTRATIVE SUBDIVISIONS OF CROWN LAND DoL provides a service in relation to Crown land that is managed by Government agencies and local government to enable effective management of Crown land. In addition, where Government agencies do not have a legal or legislative basis to dispose or deal in land, DoL provides services to assist in the disposal of land assets or negotiating subdivisions and assembly of land tenure. Where administrative subdivisions of Crown land are carried out by DoL over managed Crown land, any minor capital works will be funded by the agency requesting the work on a cost recovery basis.

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6.3.

SALE OF FEE SIMPLE INTERESTS IN CROWN LAND

6.3.1.

GENERAL The general rule is that if land is to be used for operational, service-delivery, commercial or private purposes, it should be sold or leased at market value. The LAA provides for different methods by which a fee simple interest in Crown land may be purchased from the State of Western Australia. The powers of the Minister in relation to the sale of Crown land is set out in Division 2 of Part 6 of the LAA. Section 74 of the LAA sets out the general powers of the Minister to sell Crown land. Where the Minister proposes to sell Crown land under section 74 of the LAA and subdivision is necessary, section 27(5) of the LAA must be complied with. Section 27(5) provides that where Crown land is subdivided or subdivided and developed for the purpose of selling that Crown land under section 74 of the Act, provisions as set out in Part X of the PDA applies to Crown land. The application of the relevant parts the PDA means that the requirements and processes for subdividing and developing freehold land under the approval of WAPC apply equally to Crown land being subdivided for sale into the fee simple under section 74 of the LAA.

6.3.2.

MINISTER’S DISCRETIONARY POWERS In exercising Ministerial power to sell any Crown land into the freehold, under section 74(2) of the LAA, the Minister may determine or alter, at any time prior to the sale: 

conditions and covenants;



prices;



reserve prices;



terms and conditions; and



interest rates and penalty interest rates.

In addition to the above, under section 74(2) of the LAA, the Minister may also require a performance bond in respect of such sale, select successful applicants by way of a ballot and pay a commission to any person acting on behalf of the Minister in the sale of Crown land.

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6.3.3.

Sales, Leases, Licences, etc. of Crown Land

METHODS FOR THE SALE OF CROWN LAND The different methods for selling Crown land into the fee simple are set out below: An important principle, is that public competition is the preferred method of selling Crown land.

6.3.3.1.

INVITING EXPRESSIONS OF INTEREST Section 74(1)(a) of the LAA empowers the Minister for Lands to sell Crown land by inviting expressions of interest. An advisory panel may be appointed by the Minister to assist in making the recommendation for the successful expression of interest if required.

6.3.3.2.

BY OFFER FOR SALE Section 74(1)(c) of the LAA allows the Minister to advertise for the sale of Crown land. Interested parties may approach DoL directly, or through an advertised real estate agent as the case requires. In the event that two or more applications to purchase the same parcel of Crown land are received on the same day, at the close of business on that day a ballot will be conducted to determine the successful applicant.

6.3.3.3.

BY PUBLIC AUCTION, PUBLIC TENDER OR PRIVATE TREATY Section 74(1)(f) of the LAA empowers the Minister for Lands to sell Crown land by public auction, or make a direct offer to sell a fee simple interest in Crown land by private treaty or sell Crown land by public tender. SALE BY AUCTION In the case of an auction, the auction will generally be conducted in the same fashion and under similar requirements as an auction of privately owned land. On behalf of the Minister for Lands, a government employee (as defined in the Public Sector Management Act 1994) may sell land by auction without holding an auctioneer’s licence under the Auction Sales Act 1973. This is also confirmed in section 84 of the LAA. However, as a matter of policy and to enable auctions to be conducted at the highest standard, government employees are encouraged to qualify for an auctioneer’s licence. Non-government employees may also be used where the circumstances are appropriate. Section 84 of the LAA sets out the specific requirements for Crown land to be either leased or sold by public auction. SALE BY PRIVATE TREATY Sales by private treaty are not the usual was Crown land is sold. There are instances where general interest considered very low or where in other instances the Minister may direct such an offer be made, the direct offer may be initiated. SALE BY PUBLIC TENDER The Minister can invite or call for tenders to purchase the fee simple in Crown land under section 74(1)(f) of the LAA. Section 74(1)(b) of the LAA enables the Minister for Lands to call for tenders to purchase the freehold in a parcel of Crown land. As is the case for inviting

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expressions of interest, an advisory panel may be appointed by the Minister to make a recommendation to the Minister for the successful tenderer. In some circumstances a panel may be appointed at the commencement of the process to assist the determination of selection criteria and related procedures. Tenders are generally called for single special purpose releases where a significant investment may be required to develop the land. For example, developments in the nature of shopping centres, units, holiday resorts etc. Where a public tender is proposed, the principles and procedures established for Government Tender of Services should be used. This includes giving all interests parties the same information, timeframes and standards of submissions. In addition, minimum information and criteria should be stipulated in advertising material to ensure that all potential tenderers are given the same opportunity to supply competitive information on the same criteria. 6.3.3.4.

USE OF AGENTS DoL may use real estate agents to sell or lease Crown land, with commissions being paid (whether a fixed amount or a percentage of the land value). DoL is accountable for the actions of its agents, and where they are used, the Managers within Regional and Metro Services need to regularly monitor their performance and ensure they are familiar with necessary procedures.

6.3.3.5.

PERFORMANCE BONDS Performance bonds or bank guarantees may be used to ensure compliance with conditions of sale. Generally, they will be used only in the case of high value, high-risk developments, and situations where the State may be left with substantial costs if the purchaser cannot complete development.

6.3.3.6.

PRICING It is very important to note that there are rigorous controls in place in relation to the exercise of pricing powers under sections 11(3), 74(2)(a), 75, 161, 168, 169 and 190(7) of the LAA. Section 11(3), dealing with land exchanges, requires the Minister to consult with the Valuer General on the respective values of the exchange parcels. Section 190(7), dealing with sale of surplus land acquired for a public work, requires the holding authority to take the advice of the Valuer General in setting the price. Regulation 4 of the Land Administration Regulations 1998 requires that if the Minister delegates powers pursuant to section 9(1) of the Act to transfer Crown land in fee simple then: (a)

regard should be had for the advice of the Valuer General in setting the price, or

(b)

the land should be sold by competitive process, or

(c)

if sold by private treaty, the price should not be less than 90% of the price determined on the basis of the Valuer General’s advice, or

(d)

the land may be sold by advisory panel recommendation.

Regulation 12 requires that in determining prices under section 74(2)(a) of the Act, regard must be had for the advice of the Valuer General, except in relation to land in closed private roads and pedestrian access ways (under specified circumstances) and low value land in remote areas.

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Delegations of pricing powers in relation to section 161(1)(d), dealing with disposal of surplus public works land, are subject to a requirement that the price be set at no less than 90% of the value advised by the Valuer General. Delegations of pricing powers in relation to section 169, dealing with purchase of land for public works, are subject to a requirement that the price be set at no more than 10% above the value advised by the Valuer General. 6.3.3.7.

SALE OF FEE SIMPLE INTEREST SUBJECT TO CONDITIONS Crown land may be sold into the fee simple subject to conditions in accordance with section 75 of the LAA. The land is known as “conditional tenure land”. WHAT IS CONDITIONAL TENURE LAND? Conditional tenure land is fee simple land subject to conditions of use of the land registered against the certificate of title. The conditions are such conditions determined by the Minister for the use of the land, usually requiring that the land be used only for a designated purpose. Conditional tenure land may be transferred either for nominal value, or for a discounted price; and is generally granted reflecting the restrictions placed on the land’s use or the value to the community of the service provided on the land (e.g. aged persons’ home, or church). The State’s equity in the land consists of the difference between the land’s unimproved market value at the time of transfer, and the price paid by the recipient of the title for the land. Where a nominal price was paid, the State’s equity is 100% Conditional tenure land replaced “Crown Grants in Trust” formerly issued under section 33(4) of the Land Act 1933 over reserved land, limited to a specific purpose, and such grants are henceforth referred to as Conditional land tenure. When Conditional tenure is granted under section 75 to secure performance and to guard against uncontrolled transfers, memorials are to be lodged pursuant to section 16, or in exceptional circumstances covenants lodged under powers conferred by section 74(1)(e) of the LAA. For more information on memorials, see paragraph 2.5 of this Manual. For information on the types of positive and restrictive covenants that should be created for conditional tenure land, see Chapter 2 of this manual. Grants of conditional tenure should be used very sparingly. The circumstances justifying the use of this tenure are now extremely limited. Treasury policy encourages full costing and transparent accounting for service-delivery. Conditional tenures are a form of hidden subsidy. EFFECT OF CONDITIONAL TENURE LAND While conditional tenure land provides a fee simple interest to the purchaser, the effect of any breach of the conditions attached to the land means that the fee simple interest can be forfeited by the Minister under section 35 of the LAA. The State’s equity in the land and any purchase price or nominal value paid for the land can be recovered subject to the formula set out in section 75(4) of the LAA. Under this formula, the Minister can recover the whole or proportionate balance of the unimproved value of the land (depending on whether or not any consideration or value has been paid prior to the grant of the Conditional tenured into the fee simple) from the holder of the Conditional tenure land at the time the conditions relating to the land are removed. Conditional tenure land cannot be licensed, mortgaged, charged or otherwise encumbered without the written permission of the Minister for Lands under section 75(6) of the LAA.

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Under section 75(7a) the Minister may, in prescribed circumstances and with the Treasurer’s prior approval, waive whole or part of this payment. No circumstances have been prescribed as yet (March 2008). It is intended that section 75(7a) should be used very rarely, as circumstances justifying its use will be very limited (e.g. removing the use restriction from Local Government endorsement land, subject to the local government paying 50% of the lands unimproved value). If Section 75 LAA Land is to be surrendered because it is of no further use to the grantee, then s.11 (1)(c) of the LAA is the appropriate provision to use. No reference should be made to S.75 of the LAA. The condition as to use does not need to be removed to permit surrender, and revestment into the Crown estate. The S.75 tenure, being a lesser estate, merges into the Crown estate, the higher estate, upon surrender, thereby extinguishing the S.75 condition (which was placed on the title to govern the way in which the title holder used the land, and has no relevance to the Crown). Where a fee simple owner wishes any conditions relating to conditional tenure land to be removed, an application should be made to the Minister together with payment of the balance of the unimproved value of the conditional tenure land in accordance with section 75(4)(b)(i) or (ii) of the LAA. If the Minister agrees to all the conditions being removed, the conditions and covenants registered against the certificate of title may be removed by a cancellation of the conditions lodged pursuant to section 15 of the LAA. If the minister specifies that conditional tenure is subject to the condition that due performance of other conditions by the holder of freehold is to be secured by a charge of that land, then under section 16 of the LAA the Minister may lodge a Memorial. When such a Memorial is registered it is a Charge on the land for the benefit of the Minister. 6.3.3.8.

DEVELOPMENT AND SALE BY JOINT VENTURE Section 78 of the LAA empowers the Minister to enter into a joint venture with another person for the purpose of developing and selling Crown land in accordance with regulation 13 of the Land Administration Regulations 1998. In a joint venture proposal, the Minister for Lands and the other joint venturer may agree to share the expenses and income of that joint venture: section 78(2) of the LAA. The Minister must have regard to the advice of the Valuer General as to the market value of any Crown land proposed to be developed by way of a joint venture under section 78 of the LAA. The powers of the Minister to enter into joint ventures are limited to certain other joint venturers only. PERMISSIBLE PARTNERS IN JOINT VENTURES Regulation 13 of the Land Administration Regulations 1998 only allows the Minister to enter into joint ventures with certain classes of persons. Joint ventures can only be entered into with another person who – 

is a local government or State instrumentality;



is a person who is the holder of the freehold of the land adjoining Crown land to be developed and sold by joint venture and the financial circumstances and professional standing are considered by the Minister to be satisfactory for the purposes of the joint venture; or

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

is determined by a public tender process or such other process where the public has been given an opportunity to participate in.

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6.3.4.

CONVEYANCING PROCESS AND SETTLEMENT PROCEDURE

6.3.4.1.

GENERAL Where a fee simple interest in Crown land is sold by the State using any one of the above methods, settlement is effected by check searching the certificate of Crown land title (CLT) at LANDGATE and if appropriate, the purchaser handing over the balance of the purchase monies to the relevant representative for the State in exchange for a duly stamped and executed Transfer of Land Form signed by or on behalf of the Minister for Lands and the purchaser. The settlement process is relatively simple with no rates and taxes adjustment required. The Crown does not pay rates and taxes on Crown land. For more information as to the State’s representative for disposals of fee simple interests in Crown land, see Paragraph 6.2. Instead of applying for the issue of a Crown grant as under the Land Act 1933, purchasers, can now search a certificate of Crown land title (if one has been created) and prepare a Transfer of Land Form and have it assessed for Stamp Duty by the Office of State Revenue or a Local Court for the fee simple interest. At the time of settlement, a duplicate certificate of title for the fee simple interest in the land being purchased will not be available.

6.3.4.2.

SALE AND SETTLEMENT PROCESS The sale and settlement process will usually be as follows: The purchaser will be required to pay a prescribed deposit (usually 10%) and complete a Contract of Sale in duplicate at the time of making an offer. This will be the day of the auction, if the sale is by auction, the day that Expressions of Interest or Tenders are submitted to the State’s representative, or the date upon which the Minister for Lands sells the land. It is suggested that, in all cases, the purchaser nominate a conveyancer to act on the purchaser’s behalf on the Contract of Sale. An authorised delegate of the Minister for Lands will sign the Contract of Sale if the offer is accepted. The original copy of the Contract will be forwarded to the purchaser’s conveyancer to enable settlement to be processed in accordance with normal conveyancing requirements. As is usual, the purchaser’s conveyancer is responsible for preparing the Transfer of Land document and arranging for an assessment and payment of stamp duty. The stamped Transfer of Land document should be forwarded to the State’s representative, who is currently the Manager – Regional and Metro Services Division, within the relevant region, no less than 10 days prior to the settlement date to enable the Transfer document to be signed by the Minister for Lands (or a duly authorised delegate of the Minister) on behalf of the State of Western Australia as transferor. Settlement will usually be held at DoL’s offices, unless otherwise arranged. At settlement, the State’s representative will hand over the fully executed and stamped Transfer of Land form in exchange for the balance of purchase monies. Customers should again note that a duplicate certificate of title would not be available at settlement. It will be the responsibility of the purchaser’s conveyancer to lodge the Transfer of Land document with the Registrar of Titles at LANDGATE’s Midland, Bunbury or Perth offices. Lodgement may be made personally or by post. Registration of the Transfer of Land document will result in the creation of a certificate of title for the land in fee simple in the name of the purchaser and cancellation of the corresponding certificate of Crown land title. A duplicate certificate of title will issue to the lodging party or to the party instructed on the Transfer of Land document.

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6.4.

SALE AND AMALGAMATION

6.4.1.

GENERAL The Minister for Lands has specific power under section 87 of the LAA to sell the fee simple interest in Crown land or lease Crown land for subsequent amalgamation with adjoining land in certain outlined circumstances.

6.4.2.

EXERCISE OF THIS POWER This power should only be exercised in circumstances where the Minister considers that a parcel of Crown land is unsuitable for retention as a separate lot, or subdivision and retention of the land as a separate lot is not considered suitable because of its geographic location, potential use, size, shape or any other good land use planning reason: section 87(2) of the LAA. This power is most commonly used when roads or private roads are closed and amalgamated into adjoining freehold land. Chapter 5 of this manual sets out the processes for using the sale and amalgamation powers of the Minister. This power can only be exercised with the consent of the holder of the adjoining land who is prepared to purchase or Lease the Crown land adjacent to its property Where the Minister proposes to exercise this power, DoL will prepare and lodge a Conveyance and Amalgamation Order (Form LAA-1003 or Form LAA-1003A) for lodgement with the Registrar of Titles.

6.4.2.1.

SURVEY REQUIREMENTS Business rules for SmartRegister and SmartPlan now require that a section 87 order should only be exercised where a survey of the amalgamated lot has been prepared.

6.4.3.

EFFECT OF ENCUMBRANCES AND OTHER INTERESTS Section 87 of the LAA provides that, upon amalgamation of the parcel of Crown land with the adjoining land, that parcel of Crown land takes on the tenure of the adjoining land and becomes subject to any encumbrance of the adjoining land: section 87(5) of the LAA. For example, if the adjoining land is freehold land subject to a mortgage, the Crown parcel, on amalgamation, becomes freehold land and will also be subject to that mortgage. The Registrar of Titles will create a new certificate of title for the amalgamated lot the subject of a deposited plan, which has been prepared and approved by the WAPC before the lodgement of the Conveyance and Amalgamation Order.

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6.5.

LEASE OF CROWN LAND

6.5.1.

BACKGROUND – CROWN LEASES GRANTED UNDER THE LAND ACT 1933 Before the introduction of the LAA and the implementation of a single registration system enabling titles to be created and registered under the TLA, a lease granted for terms greater than 5 years under the Land Act 1933 was registered under the TLA as Crown leases as a title for the leasehold interest in a parcel of Crown land. Under the LAA, a lease created under the LAA is now dealt with as a lease document, registered against a Crown land title. The transitional provisions of the LAA mean that there is no difference between the rights of a lessee under a Crown lease granted under the Land Act 1933 and a lessee under a lease of land granted under the LAA. Both lessees continue to hold a leasehold interest in Crown land. The only difference is in the registration requirements of that leasehold interest. In most instances Landgate has now moved these Crown leases onto Crown land titles. A Crown lease was the term applied to every lease of Crown land granted by the Minister for Lands under the Land Act 1933 for a leasehold term for conditional purchase, homestead, farm, pastoral or any other purpose as set out in that Act that was registered under the TLA. Crown lease in a TLA form. Special lease in a form describing a lease granted under page 116 of the Land Act 1993 which upon registration under the TLA became a Crown lease. Crown leases were: 

since 1909, leases for a five (5) year term or longer, were issued in duplicate by the Minister for Lands and forwarded to the Registrar to be registered as Crown leases under section 53 of the TLA. One copy was marked as the original and retained by the Registrar and the Registrar delivered the other copy, the duplicate, to the person entitled to receive it (the lessee or, where there was a mortgage over the leasehold interest, to the mortgagee).



From 1989, for administrative convenience, leases from the Crown for a term of less than five years were also lodged at LANDGATE in sequential numbering order together with Crown leases with a term of five (5) years or over to enable the creation of Crown land records and to make searching all leases of Crown land easier through LANDGATE’s computer searching facilities. Although these leases had a sequential number similar to Crown leases lodged for registration with the Registrar of Titles under the TLA, these leases (that is leases under 5 years) were not registered under the TLA but were actually registered under the provisions of the Land Act 1933.

As a result, customers should be aware that there are two types of Crown leases shown on the Register: 

Leases of Crown land for a term of five (5) years or more (defined in the TLA as a “Crown Lease”) registered under Part IIIA of the TLA; and



Leases of Crown land for a term under five (5) years (not “Crown Leases” as defined in the TLA) which have been given a Crown lease (year) number for searching purposes but were registered under section 151 of the Land Act 1933.

All leases of Crown land were entered in a Register of Leases and numbered consecutively in years, for example: No. 16/1976. Since the proclamation of the LAA, both Crown leases and leases granted and registered under the Land Act 1933, were deemed leases in Crown land created under the LAA and where for terms greater than 12 months, registered under the TLA. All new leases of Crown land are now given an alpha numeric dealing number used for all registered dealings lodged with the Registrar of Titles, for example, H123456. For the purposes of the LAA, leases for any term over 12 months granted by the Minister for Lands are commonly known within DoL as a State lease or general lease.

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Subject to Ministerial approval, leases can be mortgaged or be the subject of other commercial dealings.

6.5.2.

CROWN LEASES ISSUED PRE-LAA

6.5.2.1.

GENERAL Crown leases created under the Land Act 1933 and registered under the TLA are still current and valid and taken to be issued under the LAA. As mentioned at Paragraph 6.4.1, a Crown lease was previously registered under the TLA as a form of title for the leasehold interest in the relevant parcel of Crown land before the LAA was proclaimed.

6.5.2.2.

CROWN LEASES WITH A TERM OF 5 YEARS OR MORE As Crown leases (for terms over 5 years) created under the Land Act 1933 are registered under the TLA as Crown leases, a guaranteed and indefeasible certificate of Crown land title may be immediately created for that interest in Crown land provided that all approved interests relating to that lease have been registered. A check of LANDGATE records will determine if any approved interests have not been registered against the Crown lease. However, unlike dealing under the LAA there was no obligation for interests to be registered to be effective under the Land Act 1933.

6.5.2.3.

CROWN LEASES WITH A TERM UNDER 5 YEARS Pre-LAA Crown leases (with a term under 5 years) were only lodged with the Registrar and recorded on a Crown land record to provide a useful searching mechanism for the public. Under the LAA, a Crown land record is taken to be a Qualified certificate of Crown land. Where that Qualified certificate of Crown land title needs to be validated, the validation process contained in Chapter 2 of this manual should be followed. As leases of Crown land issued under the Land Act 1933 with a term of less than five (5) years were not registered under the TLA, the validation process contained in this manual must be followed to enable a certificate of Crown land title to be created. Until then, the Registrar will only issue a Qualified certificate of Crown land title for the land parcel containing that lease. Any subsequent instrument creating an interest in the lease will be registered and endorsed:

6.5.2.4.



in the case where the leased land is comprised within the subject of a digital title, only on the digital Crown title;



in the case where the leased land is comprised within the subject of a paper title, on the lease document itself and on the relevant paper Crown title.

ANNUAL RENEWABLE LEASES In the past, DoL has issued a large number of annual renewable leases generally under sections of the Land Act 1933. As a matter of administrative practice, these leases were not renewed on an annual basis, and legal advice held that the lessees maintained occupation of the land as tenants at will. With the commencement of the LAA, to be effective all Crown land dealings had to be registered in accordance with the TLA. Internal legal advice at that time concluded that where these annual renewable leases could still be said to have a legal existence, they had been transitioned by Schedule 2 of the LAA. However, as clause 38 of Schedule 2 provides

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that any leases transitioned from the Land Act 1933 cannot be renewed, these leases (where still valid) expired on the date they were next due to be renewed. Any future annual renewable leases must be formally renewed upon expiry, unless the terms of the lease provide for holding over for indefinite periods (subject to termination notice). Annual leases and other leases issued under the Land Act 1933 cannot be renewed; they can be replaced by new LAA leases for terms longer than the initial term. Annual leases issued under Sections 32, 116 and 117 of the Land Act 1933 are exclusive possession leases. Rental adjustments should only occur from the date the new lease is issued.

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6.5.3.

CROWN LEASES ISSUED POST-LAA

6.5.3.1.

GENERAL Under the LAA and amendments to the TLA, with the implementation of the single registration system, all leases and subleases of Crown land with a term of twelve (12) months or more can be registered as an interest (by way of a document) against the relevant Crown title in the same way as freehold leases. There is no longer a need to create a separate title for leasehold interests formerly known as a Crown lease. The single registration system now enables the Minister for Lands to apply to the Registrar to have a Crown title created. On the registration of that Application, the Registrar will create and register a Crown title and the details of the lease, being the current registered lessee and encumbrance holders, will be registered against that parcel of Crown land and endorsed on that Crown title. This process does not change any terms or conditions in the lease nor any rights accruing to the lessee. The lessee the subject of a lease of Crown land (granted postLAA) and registered against the relevant parcel of Crown land are identical in every respect. The only change has been to the requirement for registration of that lease under the TLA.

6.5.3.2.

LEASES OF CROWN LAND (STATE LEASES) The Minister for Lands has the power under the LAA to lease unallocated Crown land and unmanaged reserves to a person or corporation for a particular purpose in the form of a lease. Leases are given effect by the preparation of document signed by both parties and registered with the Registrar of Titles under the TLA. WHAT IS A STATE LEASE? To distinguish a lease issued by the Minister for Lands under the LAA from other leases of Crown land which may be issued by management bodies and other holders of Crown land, DoL commonly considers State leases as being any lease of Crown land granted by the Minister for Lands under the LAA for periods longer than twelve (12) months. State leases, like any other lease of Crown land, can be registered under the TLA on a Crown title: section 81 Q of the TLA. The one distinguishing feature of a State lease is that it is shown as the primary interest on the Crown land title and as such, is endorsed in the First Schedule of a certificate of Crown land title. Where a person wishes to lease a parcel of unallocated or unmanaged Crown land, that person should apply in writing (a letter is sufficient) to the relevant Manager, Regionald and Metro Services for a State lease setting out the area of land required and the purpose for which it is required. DoL staff will process the application and may, using the formal delegations in place, on behalf of the Minister for Lands, approve the grant of such lease if it is in accordance with the legal requirements and Government policies set by the Minister for Lands. For more information on the power to lease Crown land, see Paragraph 6.5.

6.5.4.

EFFECT OF MINING TENEMENTS OVERLAPPING LEASES AND EASEMENTS It is important to note that section 90 of the LAA provides that where an area to which a lease and an easement proposed to be granted under the LAA are over the same area of land or overlap with the area of an existing mining tenement (as defined under the Mining Act 1978), that lease or easement can be granted without the need to surrender the mining tenement either in whole or in part under section 95 of the Mining Act 1978. It is a requirement of Section 16(3) of the Mining Act that approval under that Act is obtained before any lease is granted in a mineral field.

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6.6.

LEASES ISSUED OVER CROWN LAND

6.6.1.

GENERAL Under section 79 of the LAA, the Minister for Lands has discretionary power to lease Crown land for any purpose. The LAA now provides four methods by which leases of Crown land may be granted: 

by public tender;



by offer for lease;



by public auction;



by private treaty.

In addition to the general methods to obtain a lease of Crown land, there are 5 main types of State leases that can be granted by the Minister for Lands under the LAA: 

Conditional purchase lease: section 80 of the LAA;



General lease: section 79 of the LAA;



Lease of an unmanaged reserve: sections 47 and 48 of the LAA;



Lease of, under, or over a road: section 57 of the LAA;



Pastoral lease: section 101 of the LAA;



State Agreement lease under agreements made pursuant to the Government Agreements Act 1979s.

Leases may also be given over land acquired for a public work, but not immediately required for that purpose under section 192 of the LAA. This may include both freehold and Crown land, under particular circumstances.

6.6.2.

THE MINISTER FOR LANDS, UNDER DELEGATION WILL DETERMINE THE TYPE OF LEASE TO BE GRANTED.

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CONDITIONAL PURCHASE LEASES 6.6.2.1.

WHAT IS A CONDITIONAL PURCHASE LEASE The Minister for Lands can grant a conditional purchase lease for any term and subject to any conditions that the Minister determines under section 80 of the LAA. Prior to the LAA, conditional purchase leases were restricted to use in relation to farming land, usually sold over a 25 or 30-year period with the purchase price being paid off in regular instalments (“rent”). The LAA offers much greater flexibility. Conditional purchase leases can now be used in any relevant situation. They were used to dispose of townsite lots subject to building conditions over short periods of time, although they have many other applications. The attraction of a Conditional purchase lease is it provides certainty of freehold title and allows flexibility in the commercial terms of the lease. Under the LAA, this form of lease enables the Crown land to be conditionally sold into the fee simple on payment of an agreed rent subject to the completion of construction of identified improvements to a specified level within an agreed time frame. Once these conditions have been met, a fee simple interest will be transferred and a certificate of title created and registered for the land. When taken in the context of LANDGATE’s current residential leases, essentially, a conditional purchase lease is a form of contract for sale subject to agreed conditions which entitles the purchaser to enter into possession of the land to complete improvements and pay an agreed rental. Under a conditional purchase lease -

6.6.2.2.



the rental instalments may be applied as part payment of the purchase price (similar to a terms contract): section 80 (4)(c) of the LAA,



the rental instalments may be in addition to the purchase price, without reducing it (similar to a lease with option to purchase), and



interest may be charged as compensation for deferred payment of the purchase price, and for default under any terms of the lease. Where interest is charged, interest should be set at the current rate applicable to the Commonwealth Bank's "Better Business Local" plus a client margin ranging between 0.5% and 5%, depending on risk factors. This is to be factored into lease rent payments. Interest should not to be deducted from the purchase price unless the lease so provides and this would be an unusual situation.

CONVEYANCING REQUIREMENTS FOLLOWING COMPLETION OF CONDITIONS In all cases, the purchaser/lessee is required to complete any improvements, comply with all conditions, covenants, and reservations and pay the full purchase price before the Crown land will be transferred in to fee simple to that purchaser/lessee. At that stage and upon payment of the purchase price, the Minister for Lands must transfer the fee simple interest for that land to the lessee. At the time of the transfer, any encumbrances against the leasehold interest will be carried forward to the fee simple interest. Interests already existing in the Crown land and registered on the Crown title can be carried forward on the Transfer document into the freehold in accordance with the provisions set out in sections 19 and 22 of the LAA. In general, the lease and settlement process for a conditional purchase lease for Crown land currently granted will be as follows:

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

The lessee will be required to pay a deposit land and complete a lease application form.



A DoLofficer will prepare the lease document and the original and duplicate copies will be forwarded to the lessee for signing.



The lessee will be responsible for signing both copies of the lease document and arranging assessment and payment of stamp duty.



Both copies of the signed and stamped lease document must be forwarded to DoL’s office in Midland for signing by the Minister for Lands (or a delegated DoL officer) on behalf of the State of Western Australia as lessor and stamped on behalf of State Revenue.



A DoL officer will then lodge both the original and duplicate lease with Registration Services Branch for registration by the Registrar of Titles. DoL should retain a file copy before it is lodged and after it is registered to show the LANDGATE registered document number. On completion of the registration process, the duplicate copy of the signed and registered lease will be forwarded to the lessee or its agent for its records.



Rental is to be paid in accordance with the conditions of the lease.

This process may vary. The purchase price may be paid in a series of rental instalments over, for example, a 5-year period or may not be paid until the completion of all conditions.

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6.6.3.

Sales, Leases, Licences, etc. of Crown Land

GENERAL LEASES The Minister for Lands may grant a general lease over a parcel of Crown land for any purpose and subject to any conditions. The Minister for Lands may also require a performance bond for any such lease: section 79 of the LAA. A general lease may contain conditions including: 

Option to renew (or extend).



Option to purchase the fee simple in the Crown land the subject of the lease.

Under section 79 of the LAA, the Minister for Lands may determine rentals. In general, where the Minister for Lands through DoLhas made the decision and grants the lease, the leasing process for a lease for Crown land will be as follows:

6.6.4.



The lessee will be required to complete a lease application form.



A DoL Regional and Metro Services Division officer will prepare the lease document and the original and duplicate copies will be forwarded to the lessee for signing.



The lessee will be responsible for signing both copies of the lease document.



Both copies of the signed lease document must be forwarded to DoL’s office in Midland for signing by the Minister for Lands (or a delegated DoL officer) on behalf of the State of Western Australia as lessor.



A DoL officer will then mark the document exempt from stamp duty and lodge both the original and duplicate lease with Registration Services Branch for registration by the Registrar of Titles. DoLshould retain a file copy before it is lodged and after it is registered to show the LANDGATE registered document number. On completion of the registration process, the duplicate copy of the signed and registered lease will be forwarded to the lessee or its agent for its records.

CROWN LEASES OF UNMANAGED RESERVES The Minister for Lands may grant a lease for a parcel of Crown land in an unmanaged reserve for a purpose that is in accordance with the purpose of the reserve: Section 47 of the LAA. A lease granted for a purpose that is in accordance with the purpose of the reserve may be mortgaged with the prior approval of the Minister for Lands: Section 47(2) of the LAA. The Minister for Lands may also grant a lease for a parcel of Crown land in an unmanaged reserve for a purpose which is different from but which is compatible with or ancillary to the current purpose of the reserve: Section 48 of the LAA. A lease granted for a purpose that is different from the purpose of the reserve cannot be mortgaged: Section 48(2) of the LAA. The leasing process for these leases is the same as for general leases.

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6.6.5.

Chapter 6

PASTORAL LEASES The Minister for Lands may grant a Pastoral lease under section 101 of the LAA for a parcel of Crown land in accordance with the requirements of the LAA. The Minister for Lands will act under the advice of the Pastoral Lands Board in relation to conditions and procedure for the release process of Crown land subject to pastoral leases. The leasing process for pastoral leases is the same as for general leases. For more information on pastoral leases, see Chapter 7 of this manual.

6.6.6.

LEASING OF CROWN LAND FOR TELECOMMUNICATIONS PURPOSES There is a greater requirement for leasing land for telecommunications purposes following the introduction of the Telecommunications Act 1997 (Commonwealth). This Commonwealth Act empowers telecommunications carriers to install “low impact facilities” on any land. Certain facilities cannot be “low impact”: 

designated overhead lines



a tower not attached to a building



a tower attached to a building and more than five metres high



an extension to a tower that as previously been extended



an extension to a tower, if the extension is more than five metres high.

DoL acts on behalf of the Crown to grant tenure for tower sites direct to carriers, in the form of leases and (where necessary) easements for access and services, at commercial rates. A standard form of lease has been developed for this purpose.

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6.6.7.

Sales, Leases, Licences, etc. of Crown Land

LEASING FOR AQUACULTURE DoL’s REgionald and Metro Services Division has a memorandum of administrative arrangements (MAA) with Fisheries WA in relation to the grant and registration of tenure in coastal waters. In part, this MAA provides that Fisheries WA (FWA) will continue to issue leases under their Act for pearling and aquaculture in: (i)

WA Waters (within the meaning of the Fish Resources Management Act 1994 (FRMA) or the Pearling Act 1990); or

(ii)

in respect to land vested for aquaculture purposes in the Minister for Fisheries, with the exercise, where necessary, of the delegated powers of the Minister for Lands.

Pearling and aquaculture leases will only be issued following assessment of applications in accordance with the consultative process outlined in FWA Ministerial Policy Guideline No. 8 (MPG 8). Leases issued under the FRMA and the Pearling Act 1990 will be registered under the Transfer of Land Act 1893. The Minister for Lands will issue leases to aquaculture licensees pursuant to section 79 of the LAA, over Crown land, other than WA Waters or land vested for aquaculture purposes in the Minister for Fisheries.

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6.6.8.

Chapter 6

LEASES OVER TENURES In addition to the above types of leases, leases over tenures may also be granted under the LAA.

6.6.8.1.

LEASES OVER RESERVES The Minister for Lands has power to lease Crown land in an unmanaged reserve for a purpose that accords with the purpose of that unmanaged reserve under section 47 of the LAA. Further information on leases over reserved land can be obtained from Chapter 4 of this manual. In addition, a management body, where it has power to lease land in a management order (known as a management order lease) or, has power to lease land under its own written law, may also lease reserve land provided the lease accords with the purpose of the reserve and subject to the approval of the Minister for Lands under section 18 of the LAA. For more information on the consent of the Minister under section 18, see from Chapter 2 of this manual.

6.6.8.2.

LEASES UNDER AND ABOVE ROADS Section 57 of the LAA empowers the Minister to grant a lease in respect of land above, on or below a road. The Minister may also grant leases over three-dimensional roads in appropriate instances. In cases where leases under and above roads are proposed to be granted, the consent of the relevant local government must be obtained. Depending on the case, consent of the Commissioner of Main Roads or the Minister responsible for administration of the Public Works Act 1902 must also be obtained. Where it is proposed to provide for the granting of a lease over a three dimensional road, an isometric plan setting out the height, depth, width and length of the affected land is required together with a reference to Australian Height Datum (AHD). Any queries in relation to this type of plan should be made to the relevant LANDGATE officer or, surveyor. This also applies to three-tier leases involving underpasses, surface area and overpasses.

6.6.8.3.

LEASES OVER SUBMERGED LANDS The LAA definition of land includes territorial waters (out to the three nautical mile limit). There is also an agreement between DoL and Fisheries WA in relation to the management of land over and under waters. DoL should ensure the grant of a lease does not conflict with the agreement with Fisheries WA. The Minister for Lands has power to grant leases over water in appropriate circumstances. In every case, an appropriate plan (sometimes isometric) is required clearly identifying the area of water and seabed leased. LAA leases can not be granted in areas proclaimed under the Port Authorities Act 1999. In such instances the area will have to be de-proclaimed before a LAA lease can be granted. As with all grants of tenure over Crown land, the approval of the Minister for Mines is required under section 16(3) of the Mining Act 1978 prior to any leases being granted over submerged lands.

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6.6.9.

Sales, Leases, Licences, etc. of Crown Land

STAMP DUTY IMPLICATIONS FOR LEASES OF CROWN LAND All leases of Crown land granted by the State are exempt from stamp duty under the Stamp Act 1921. The exception to this rule is the conditional purchase lease because the lease is considered by State Revenue to be a contract to purchase the land subject to a lease and other conditions.

6.6.10.

LEASING UNDER RATIFIED STATE AGREEMENT ACTS There are a number of instances, particularly in the 1960’s where the State entered into agreements with entities to develop large projects such as the North West shelf or the Pilbara projects. These agreements, when executed by the parties were ratified by Parliament in the form of a particular Agreement Act. In most cases, the particular Agreement Act made amendments to the Land Act and Section 18 of the Land Act or the LAA in their application for land tenures required to be granted by the State under the Agreement, be they leases, licences or easements. One very common amendment is to disapply the transfer approval provisions under Section 143 of the LA and to require transfers of interests in such tenures to be at the approval only of the Minister responsible for the administration of the particular Agreement Act (the Act Minister). Before any proposal by an Agreement Act participant is given tenure under the LA or the LAA, the proposal needs to be first approved by the Act Minister via the Department of Industry and Resources. All land proposals under an Agreement Act receive tenure pursuant to that Act and the LAA. It is noted that no Agreement Act was included in legislation amended by the Acts Amendment Land Administration Act 1997 and as a consequence of this oversight, Agreement Acts still refer to the Land Act. In such instances the equivalent provisions of the LAA are operative sections. Land Act lease issued under Agreement Acts can be renewed by virtue of clause 38(2) of LAA schedule 2.

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6.7.

CONVERSION OF STATE/CROWN LEASES INTO THE FREEHOLD

6.7.1.

GENERAL A lessee of Crown land (other than a pastoral lessee) may, under section 89 of the LAA, apply to the Minister for Lands to purchase the fee simple interest of the Crown land that is currently being held in leasehold. The application is purely subject to the discretion of the Minister and if granted, may be made subject to such conditions prescribed under regulation 14 of the Land Administration Regulations 1998.

6.7.2.

CONVEYANCING PROCESS Where a lessee is successful in his or her application to have the leasehold interest converted into a fee simple interest, the following process will enable the conversion to be carried out. A current State or Crown lessee’s interest is converted into a freehold estate by creating and registering a certificate of title for the fee simple interest and cancelling the lease. Any encumbrances registered or lodged on the lease will be carried forward to the certificate of title unless the encumbrances are removed or renegotiated. The conversion to a freehold estate will be subject to compliance with the lease conditions and payment of purchase monies required by the Minister. The conversion process can be achieved by way of a transfer of a fee simple interest from the State of Western Australia to the current lessee. The Transfer of Land document must include an endorsement that the lease to be merged with and extinguished by the grant of the freehold title. The request to merge and extinguish the lease should be endorsed on the Transfer of Land form itself and signed by the lessee or the lessee’s agent. Suitable words for the request endorsed on the Transfer of Land form is: “The transferee requests that (specify lease number, for example: Lease H123456 or 1/1999) be merged and extinguished in the fee simple on this Transfer”. A memorandum to that effect will be endorsed both on the certificate of Crown land title and the relevant State or Crown lease where the subject land is subject of a paper title. If the land is the subject of a digital title, the lease is digitally removed from the current title and moved to the title's history file.

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6.8.

Sales, Leases, Licences, etc. of Crown Land

LICENCES AND PROFITS Á PRENDRE GRANTED OVER CROWN LAND Licences and profits á prendre over Crown land may be granted by the Minister for Lands under section 91 of the LAA or under section 48 in relation to reserved land. Where it is proposed to grant a licence or profit á prendre over the same area of Crown land as an existing mining or petroleum right, an agreement must be entered into between the relevant Ministers to show the consent of the Minister for Mines and all interest holders must be consulted: Section 91(5) of the LAA.

6.8.1.

LICENCES OVER CROWN LAND Licences are, at common law, a personal right between two or more persons authorising the doing of a certain act for example the right to enter upon land which would otherwise be a trespass. A licence is not an interest in land, and a mere licence is always revocable. The Minister for Lands has power to grant licences in respect of Crown land under section 48 and 91 of the LAA. Further details of licences over unmanaged reserves can be obtained from Chapter 2 of this manual. Local Government has power to grant licences under its powers in the Local Government Act 1995 and with the consent of the Minister for Lands under section 18 of the LAA. Being merely a contractual right and not an interest in land, licences cannot be registered under the TLA, nor can a caveat be lodged to protect any claim relating to a licence.

6.8.2.

PROFITS Á PRENDRE A profit á prendre is a right to take natural produce or part of the soil from the land of another person. It is an interest in land and can be registered under the TLA. A common form of profits á prendre involves the planting of forest on land with a portion of the timber sale proceeds being paid to the landowner. The Minister for Lands has power to grant profits á prendre under sections 48 and 91 in respect of Crown land. When a profit á prendre is proposed to be registered against a Crown title, approved Form LAA-1038. Please note forms are prepared and lodged by DoL staff only.

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6.9.

EFFECT OF IMPROVEMENTS ON TERMINATION OF LEASE OR LICENCE

6.9.1.

GENERAL Where a lease or licence granted by the Minister under Part 6 of the LAA terminates, section 92 of that Act provides that the property in any of the improvements made on Crown land and not removed in accordance with the conditions of the lease vests in and becomes the property of the Crown. However, where the lease is subject to an option to renew the lease, the lease is renewed pursuant to an option to renew or, the Minister and the lessee have agreed to the transfer of the fee simple interest in the Crown land to the lessee, the improvements do not automatically vest in the Crown: section 92(2) of the LAA. Despite this, the lessee may, with the permission of the Minister, as in the case of most commercial leases as provided for in the lease, remove all fixtures from the Crown land within 3 months after the termination of the lease or, if specifically agreed by the Minister, have the improvements valued and those monies paid to that lessee by an incoming lessee or purchaser of the Crown land: section 92(3) of the LAA. Provisions may also be made in the lease for “holding over”, for a period of time under specified circumstances. These provisions need to be used with care. The lessee will generally remain as a tenant at will; with one month’s notice being required to terminate the tenancy.

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6.10.

GENERAL DISPOSITIONS PROVISIONS

6.10.1.

INTRODUCTION The term “disposition” applies to all conveyances of land (e.g., transfers, surrenders, revestments), grants of tenure (e.g., lease, licence, easement, freehold), or other forms of setting land aside for a purpose, such as reservation, issue of management orders, dedication under an Act to a particular purpose, dedication as a road, and taking for a public work; as well as the associated actions of cancelling or varying such dispositions. In this paragraph, the term relates to sales, leasing, revestments and associated actions. Part 6 of the LAA has certain provisions under Division 4 which are not restricted to either sale or leasing of Crown land.

6.10.2.

REVESTMENTS Section 82 of the LAA provides for revestment of land in the Crown, with or without encumbrances. The key issue for Crown land managers is to ensure that undesirable encumbrances (e.g., restrictive covenants, mortgages, and CMS Parmelia easements) should not carry forward to the Crown estate; and that land revesting in the Crown is not contaminated. Having regard for the onerous requirements of the Contaminated Sites Bill 2001, it is very important that rigorous safeguards are established and observed, prior to allowing land to revert to State ownership. While section 82 provides a way for land to return to the Crown, there are in fact numerous ways in which freehold or other land may come into State ownership or control, for example: 

surrender



termination of lease



forfeiture



vesting via the town planning process



revocation of management orders



cancellation of dedication under an Act



acquisition for a public work



action under an Act, such as disclaimers in bankruptcy under the (Commonwealth) Bankruptcy Act 1933



revestment for non-payment of Local Government rates



return of Commonwealth lands (e.g., lighthouses, rifle ranges, bombing ranges)

Similar care as for revestments should be applied to all forms of reversion of land to the State.

6.10.3.

GRANTS TO ABORIGINAL PERSONS OF THE LAA Section 83 of the LAA provides for grants of freehold or leasehold to Aboriginal parties.

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Sales, Leases, Licences, etc. of Crown Land

6.10.4.

Chapter 6

SUPERLOTS Section 85 of the LAA provides for the sale or leasing of Crown land as a superlot, for progressive subdivision and development. This has proven to be a valuable tool in conveying land to LandCorp to facilitate timely development.

6.10.5.

DISPOSITIONS TO THE COMMONWEALTH, STATE GOVERNMENT AGENCIES, OR LOCAL GOVERNMENT Section 86 of the LAA provides for the sale or lease of Crown land to the Commonwealth, State or Local Government. The general principle is that sale or leasing should be at market value.

6.10.6.

OPTIONS Section 88 of the LAA empowers the Minister to grant options to purchase or lease Crown land. Section 89 enables a lessee (other than a pastoral lessee) to apply to purchase the leased land, or for an option to purchase the leased land. Options provide great flexibility to centre would-be-developers or investors to fully test and examine a project or proposal, safe in the knowledge that they can secure a lease or freehold title to the site if they comply with all option pre-conditions and then elect to exercise the option granted to them.

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CROWN LAND ADMINISTRATION AND REGISTRATION PRACTICE MANUAL

CHAPTER 07 PASTORAL LEASES

TABLE OF CONTENTS 7.

PASTORAL LEASES

7-1

7.1.

INTRODUCTION

7-1

7.2.

GRANTING A PASTORAL LEASE

7-2

7.2.1. GRANTING OF A PASTORAL LEASE OVER UNALLOCATED CROWN LAND NOT PREVIOUSLY HELD AS A PASTORAL LEASE WHERE NO INFRASTRUCTURE EXISTS

7-3

7.2.2. GRANTING OF A PASTORAL LEASE OVER UCL PREVIOUSLY HELD AS A PASTORAL LEASE WHERE SOME INFRASTRUCTURE MAY EXIST

7-4

7.2.3. PUBLIC OFFERS OF PASTORAL LEASES

7-4

7.3.

CONDITIONS OF A PASTORAL LEASE

7-5

7.3.1. TERM OF A PASTORAL LEASE

7-5

7.3.2. PURPOSE OF A PASTORAL LEASE

7-5

7.3.3. DEVELOPMENT AND MAINTENANCE OF IMPROVEMENTS

7-5

7.3.4. MANAGEMENT OF A PASTORAL LEASE

7-5

7.3.5. STOCKING OF A PASTORAL LEASE

7-6

7.3.6. SOIL CONSERVATION

7-7

7.3.7. DECLARED PLANTS AND ANIMALS

7-7

7.3.8. ANNUAL RETURNS

7-7

7.3.9. PAYMENT OF RENT

7-7

7.3.10. RESERVATION IN FAVOUR OF ABORIGINAL PERSONS

7-7

7.4.

PERMITS

7.4.1. TYPES OF PERMITS

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Chapter 7

Pastoral Leases

7.4.2. STATUTORY REQUIREMENTS

7-9

7.4.3. APPLICATION PROCESS

7-9

7.5.

ASSESSMENT OF RENT

7-10

7.5.1. 5 YEARLY RENT REVIEWS

7-10

7.5.2. OBJECTIONS AND REVIEWS

ERROR! BOOKMARK NOT DEFINED.

7.5.3. VARIATION OF RENT IF A PERMIT IS ISSUED

7-10

7.6.

INSPECTION OF PASTORAL LEASES

7-11

7.7.

DEFAULTS AND FORFEITURE

7-12

7.7.1. ISSUING OF A DEFAULT NOTICE

7-12

7.7.2. PROSECUTION FOR FAILURE TO COMPLY WITH A DEFAULT NOTICE

7-12

7.7.3. ISSUING A FORFEITURE NOTICE

7-13

7.8.

ABANDONMENT OF A PASTORAL LEASE

7-14

7.8.1. CONTROL AND MANAGEMENT

7-14

7.8.2. APPEALS 7-14 7.8.3. COSTS INCURRED BY BOARD CONTROL

7.9.

7-14

SALES AND TRANSFERS

7-15

7.9.1. APPROVAL TO SELL

7-15

7.9.2. APPROVAL TO TRANSFER

7-15

7.9.3. RESTRICTION ON TRANSFER OF SHARES IN COMPANIES

7-16

7.9.4. MAXIMUM AREA

7-16

7.9.5. FOREIGN OWNERSHIP

7-17

7.10.

MORTGAGES OVER PASTORAL LEASES

7-18

7.11.

SUBDIVISION OF A PASTORAL LEASE

7-19

7.11.1. BACKGROUND

7-19

7.11.2. PROCESS 7-20

7.12.

AMALGAMATION OF PASTORAL LEASES

7-21

7.12.1. AMALGAMATION OF ENTIRE LEASES

7-21

7.12.2. AMALGAMATION OF PART LEASES

7-22

7.13.

ADJUSTMENT OF BOUNDARIES

7-23

7.14.

PASTORAL BUSINESS UNITS

7-24

7.15.

RENEWAL OF PASTORAL LEASES

7-25

7.15.1. RENEWAL OF PASTORAL LEASES ISSUED UNDER THE LAND ACT 1933

7-25

7.15.2. RENEWAL OF PASTORAL LEASES ISSUED UNDER THE LAND ADMINISTRATION ACT 1997

7-26

7.15.3. COMPENSATION FOR IMPROVEMENTS ON EXPIRY OF PASTORAL LEASES

7-26

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ii

Pastoral Leases

7.16.

Chapter 7

SHARED WATERS ON PASTORAL LEASES

7.16.1. CREATION OF AN EASEMENT

7-27 7-28

7.17.

DIVIDING FENCES

7-29

7.18.

PUBLIC ACCESS ON PASTORAL LEASES

7-30

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Pastoral Leases

Chapter 7

7.

PASTORAL LEASES

7.1.

INTRODUCTION Part 7 of the Land Administration Act 1997 (LAA) provides the current legislative basis for the granting and administration of pastoral leases over Crown land in Western Australia. It also provides for the establishment of a Pastoral Lands Board to oversee the administration of such leases. All pastoral leases currently in place were granted under the new repealed Land Act 1933 but continue in existence as if they had been granted under the LAA. A pastoral lease allows the lessee to graze authorised stock on the lease using methods of best pastoral and environmental management practice. All current pastoral leases expire on 30 June 2015. Provisions under the former Land Act 1933 allowed for pastoral lessees to apply to the Minister for lease renewal. Most lessees were given and accepted a conditional offer to renew in 2015. Under the LAA, there are provisions for a pastoral lessee to apply for a permit to undertake commercial activities supplementary or ancillary to the pastoral business. The principle behind these provisions is to provide opportunities for pastoralists to diversify and attract additional income so that it remains a viable option for pastoral lessees to remain on their lease, particularly during poor returns on produce from traditional pastoral lease activities. The Pastoral Lands Board (“the Board”) is appointed by the Minister, (section 97 of the LAA) to advise the Minister on policy relating to pastoral leases and administers the leases in accordance with the LAA: section 95(a) of the LAA. The Board therefore has the roles of ensuring lease compliance, developing policies relating to the prevention of rangeland degradation and monitoring of rangeland condition. The Board consists of a chairperson and 7 other members (section 97 of the LAA) of whom:



3 are persons who hold or who have held an interest in a pastoral lease either individually or as shareholders in a company with a beneficial interest in a pastoral lease;



the Director General of Agriculture;



the Director General of DoL;



a person with expertise in the field of flora, fauna or land conservation management; and



an Aboriginal person with experience in pastoral leases.

The Pastoral Lands Board meets approximately every six weeks. The majority of the meetings are held at the Board offices in the LANDGATE Building in Midland. It does, however, hold at least one meeting a year in regional centres. At these times, the Board also holds an open meeting at which pastoral lessees may discuss issues affecting the industry.

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Chapter 7

7.2.

Pastoral Leases

GRANTING A PASTORAL LEASE The Minister may grant pastoral leases under section 101 of the LAA for a term of up to 50 years (section 105(1) of the LAA) after receiving advice from the Pastoral Lands Board. A pastoral lease may not be granted unless the Pastoral Lands Board is satisfied that the lease will be capable, when fully developed, of carrying sufficient authorised stock to enable it to be worked as an economically viable and ecologically sustainable pastoral business unit: section 101(5) of the LAA. Due to the size, and sometimes the natural features, pastoral leases are not always surveyed. In the absence of a survey, pastoral leases are described by technical description or defined by GPS coordinates. In most cases where one of the boundaries is the coastline that boundary will be 40 metres above the high water mark.

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Pastoral Leases

7.2.1.

Chapter 7

GRANTING OF A PASTORAL LEASE OVER UNALLOCATED CROWN LAND NOT PREVIOUSLY HELD AS A PASTORAL LEASE WHERE NO INFRASTRUCTURE EXISTS

This would generally be instigated by an application from an external party wishing to take up land for pastoral purposes. Before a pastoral lease can be granted, advice and clearances must be obtained from various agencies. In the first instance, Pastoral Land Business Unit would seek advice from the Department of Agriculture in respect to pastoral potential and stock carrying capacity of the land under application. The Department of Agriculture advice would then be considered by the Pastoral Lands Board and it would decide whether the proposed site is likely to be a viable proposition given the pastoral potential, stock-carrying capacity and development costs. If the Pastoral Lands Board decides that the site would be viable, further clearances would need to be obtained from: 

Environmental Protection Authority - advice on any negative impacts due to grazing of domestic stock;



Conservation and Land Management – advice on any rare flora or fauna existing and any areas that are of specific conservation value;



Local Government body – courtesy advice seeking comments to the proposal;



Main Roads WA – if a main road is passing through or adjoining the proposed lease advice should be sought as to the adequacy of the width of the road;



Manager – Regional and Metro Services – to determine if there are any other land use requirements for the area;



Native Title Act – requirements of the Act and current State policy would need to be considered in respect to Native Title rights and interests;



Valuer General – to determine the ground rent that the land might reasonably be expected to realize in good condition, for a long term lease for pastoral purposes under which normal outgoings are paid by the lessee;



Survey and drafting requirements would need to be considered on a case-by-case basis. Should it be determined that survey is required it should be by limited marking techniques and costs should be recouped from the incoming lessee. It may be that a technical description will be sufficient to describe the boundary with a deposited plan being drawn: and



Other Government agencies if required.

If the site is considered to be economically viable and all clearances mentioned above have been obtained the Pastoral Lands Board will make a formal recommendation to the Minister, which will suggest the lease term and conditions and method of release. If the Minister approves the release of the site a release will be undertaken by Pastoral Lands Business Unit staff.

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Chapter 7

7.2.2.

Pastoral Leases

GRANTING OF A PASTORAL LEASE OVER UCL PREVIOUSLY HELD AS A PASTORAL LEASE WHERE SOME INFRASTRUCTURE MAY EXIST

This may be instigated by the Pastoral Lands Board following forfeiture or cancellation of a pastoral lease or by an application from an external party wishing to take up land formerly held as a pastoral lease. The fact that the land has previously been held as pastoral lease does not necessarily mean that it is viable in the current economic environment and for its current rangeland condition. Given that circumstances may have changed since the land was previously released for pastoral leasing purposes in the first instance, the Pastoral Land Business Unit would seek advice from the Department of Agriculture and Food WA in respect to pastoral potential and stock carrying capacity. The Department of Agriculture and Food WA advice would then be considered by the Pastoral Lands Board and it would decide whether the proposed site is likely to be a viable proposition given the pastoral potential, carrying capacity and re-development costs. If the Pastoral Lands Board decides that the site would be viable further clearances would need to be obtained as required under Paragraph 7.2.1. The Valuer General would also be asked to provide a valuation of the fixed improvements that remain on the lease site. Providing the proposed re-release of the land is the same land description as previously held as a pastoral lease then a current graphic will exist and be acceptable. If the site is considered to be economically viable and all clearances mentioned above have been obtained the Pastoral Lands Board will make a formal recommendation to the Minister, which will suggest the lease term and conditions and method of release. If the Minister approves the release of the site, a release will be undertaken by Pastoral Lands Business Unit staff.

7.2.3.

PUBLIC OFFERS OF PASTORAL LEASES A pastoral lease may only be granted after a public competition process has been undertaken. Advertising must be undertaken in a daily newspaper circulating throughout the State. Under section 102 of the LAA, the public competition process for a proposed pastoral lease may be by offer for sale, public auction, public tender or expressions of interest. Appendix E - Table C of the Crown Administration and Registration Practice Manual refers to the General Conditions of a pastoral lease under section 101 of the LAA.

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7-4

Pastoral Leases

Chapter 7

7.3.

CONDITIONS OF A PASTORAL LEASE

7.3.1.

TERM OF A PASTORAL LEASE A pastoral lease can be granted any term up to 50 years (section 105 of the LAA) and the term must be specified in the grant.

7.3.2.

PURPOSE OF A PASTORAL LEASE A pastoral lease may be used for pastoral purposes which is defined in section 93 of the LAA to mean:

7.3.3.



the commercial grazing of authorised stock;



agricultural, horticultural or supplementary uses of land inseparable from, essential to, or normally carried out in conjunction with the grazing of authorised stock, including the production of stock feed, subject to a permit being issued (if required); and



activities ancillary to the activities mentioned in the two preceding paragraphs subject to a permit being issued (if required).

DEVELOPMENT AND MAINTENANCE OF IMPROVEMENTS The lessee must maintain in good condition all lawful improvements on the lease. If the Pastoral Lands Board is of the opinion that reasonable development of the lease requires improvements to be made, it may request the lessee to submit a development plan, commonly known as a management plan, for the progressive development of those improvements over a specified timeframe: section 107 of the LAA.

7.3.4.

MANAGEMENT OF A PASTORAL LEASE The lessee at all times must manage and work the land under the lease to its best advantage as a pastoral property, to the satisfaction of the Pastoral Lands Board: section 108 of the LAA. Under section 108(2) of the LAA the lessee must use methods of best pastoral and environmental management practice, appropriate to the area where the lease is situated, for the management of stock and for the management, conservation and regeneration of the pasture for grazing. The lessee must maintain the indigenous pasture and other vegetation on the land under the lease to the satisfaction of the Pastoral Lands Board and the Commissioner of Soil and Land Conservation: section 108(4) of the LAA. The lessee must not remove trees or clear land under the lease or disturb its soil, except: 

as permitted under the lease;



as necessary for the construction of permitted improvements; or



in accordance with a permit.

A penalty of $10,000 is prescribed in section 109 of the LAA. The lessee must not sow or cultivate non-indigenous pasture on land under the lease, except in accordance with the permit: section 110(1) of the LAA.

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Chapter 7

7.3.5.

Pastoral Leases

STOCKING OF A PASTORAL LEASE The lessee must stock the lease with authorised stock. Authorised stock is prescribed in regulation 17C of the Land Administration Regulations 1998 as sheep, cattle, horses and animals kept for domestic purposes. Prohibited stock (anything that is not authorised stock) may only be kept on a pastoral lease if a permit has been issued. The Pastoral Lands Board may from time to time determine the minimum and maximum stock numbers and their distribution over the lease in accordance with the factors set out in section 111 of the LAA. Stock may only be taken on agistment if prior Pastoral Lands Board approval has been granted: section 111(2) of the LAA. In this instance a lessee would need to apply to the Pastoral Lands Board, in writing, advising details as to the type and number of stock, the commencement and finishing dates and the paddocks in which the stock will be held. The Pastoral Lands Board may on application from a pastoral lessee consider allowing the destocking of a pastoral lease for up to 3 years and would consider such for reasons including the following: 

when the lease is badly degraded, and destocking will aid rehabilitation;



when a conservation reserve is being created;



when the lessee can clearly demonstrate that maintaining stock on the lease will conflict with other, legitimate forms of land use on the lease; or



when the lease is in transition to another form of tenure.

A lessee wishing to destock a pastoral lease must in the first instance apply in writing to the Pastoral Lands Board providing: 

the reasons for the request;



details of the length of time the lease is proposed to be destock;



a management plan of the lease for the period of destocking with particular reference to maintenance of infrastructure and control of feral animals;



an inventory of the current infrastructure;



a plan for restocking the lease.

Pastoral Land Business Unit will request the Department of Agriculture and Food WA to undertake an inspection and provide comment as to the appropriateness of the application and confirm the inventory and condition of the infrastructure. Once this information is received the Executive Officer will place the matter on the agenda for consideration at the next Pastoral Lands Board meeting. If the Pastoral Lands Board grants approval to destock it would be subject to: 

the lessee maintaining the pastoral infrastructure and continuing to undertake feral animal control during the destocking period;



An annual inspection being undertaken at the lessees cost to ensure compliance with the management plan. Non-compliance may result in a default notice being issued.



the Board may require the lessee to enter into a performance bond or bank guarantee.

Please refer to Appendix E - Table B of this manual for policy details.

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Pastoral Leases

7.3.6.

Chapter 7

SOIL CONSERVATION The lessee must maintain the land under lease in good and improving soil and plant condition. Management of pastoral leases also has implications under the Soil and Land Conservation Act 1945. Under this Act, the Commissioner for Soil and Land Conservation may serve a Soil Conservation Notice for failure to take adequate steps to prevent land degradation, soil erosion, salinity or flooding. A Soil Conservation Notice may require an area of the lease to be taken out of production or remedies to be made. Section 112 of the LAA deals with the effect of a Soil Conservation Notice on the obligations of the Pastoral lessee.

7.3.7.

DECLARED PLANTS AND ANIMALS A pastoral lessee must control declared plants and animals on the land in compliance with the Agriculture and Related and Resources and Protection Act 1976 and to the satisfaction of the Pastoral Lands Board.

7.3.8.

ANNUAL RETURNS As provided in section 113 of the LAA, a pastoral lessee must, after 30 June in each year and not later than 31 December in that year, submit to the Pastoral Lands Board a return in the approved form providing information required by the Pastoral Lands Board relating to the land under pastoral lease or activities on the land for which a permit has been issued. The return is usually provided in the form of a declaration. The penalty for failure to submit a return by the required date is up to $2,000 and a daily penalty of up to $200. Knowingly providing false information or failing to provide any information without reasonable excuse could result in a penalty of up to $8,000 or imprisonment for up to 12 months. Prior to 30 June each year, the Pastoral Lands Board will review the Stock and Improvements Return (Declaration). A Return (declaration) agreed to by the Pastoral Lands Board then needs to receive the approval of the DoL Director General under section 278 of the LAA. In July each year, Pastoral Land Business Unit staff will send two blank returns (declarations, one copy to be retained by the lessee) to each pastoral lessee and request that it be completed and returned by 31 December of that year. If the return (declaration) has not been submitted by the appointed day, a default notice will be issued requiring the default (that is: the failure to submit the Stock and Improvements Return (declaration) to be rectified within 30 days. Failure to comply with the default notice will lead to prosecution. Refer to Paragraph 7.7.2.

7.3.9.

PAYMENT OF RENT The annual rent is to be paid in advance in two equal instalments due on 1 January and 1 July each year. Interest at the prescribed rate may be charged on overdue payments. DoL’s Financial Services Branch will forward statements each January and July.

7.3.10.

RESERVATION IN FAVOUR OF ABORIGINAL PERSONS Aboriginal persons may at all times enter upon any unenclosed or unimproved parts of a pastoral lease to seek their sustenance in their accustomed manner: section 104 of the LAA.

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Chapter 7

7.4.

Pastoral Leases

PERMITS A pastoral lessee may apply for a permit to use land within a pastoral lease for non-pastoral activities. This is a new concept provided for in Division 5 sections 115 to 122A of the LAA. The permit system was introduced to provide pastoral lessees with the opportunity to:



undertake some form of diversification and gain additional income to supplement the income derived from the pastoral business; and



improve the carrying capacity of the lease.

Amendments to the LAA in December 2000 provide that only authorised stock may be kept on a pastoral lease unless a permit is issued to keep or sell prohibited stock. Authorised stock is prescribed in the LAA Regulations – regulation 17C as sheep, cattle, horses and any animals kept for domestic or household use. Prohibited stock is any other “stock” (refer to definition at section 3 of the LAA). A permit may only be issued to the registered pastoral lessee. It should be noted that a permit is not a registrable interest in the land. It is another land use activity permitted on the land. Permitted activities other than the keeping of prohibited stock must be supplementary to the pastoral business. If an alternative land use is required by a party other than the pastoral lessee and the Minister has agreed to grant a new lease by some means, a surrender of the land from the pastoral lease would be required with a view to obtaining a separate lease under section 79 of the LAA. This is covered in Chapter 6 of this manual.

7.4.1.

TYPES OF PERMITS Permits may be issued for: 

Clearing of land for the purpose of promoting the growth of indigenous pasture or otherwise facilitating or improving the working of the lease: section 118 of the LAA. See approved Form LAA-1064.



Sowing of non-indigenous pastures to increase the carrying capacity of the lease or for sale of any produce of the pasture: section 119 of the LAA. See approved Form LAA-1037.



Agricultural uses of land for crop, fodder, horticultural or other kind of agricultural production providing that the proposed use is reasonably related to the pastoral use of the land: section 120 of the LAA. See approved Form LAA-1035.



Tourist purposes to allow the lessee to use specified land for pastoral-based tourist activities of a specified kind if the activities will be purely supplementary to pastoral activities on the land: section 121 of the LAA. See approved Form LAA-1063



Non-pastoral use of enclosed and improved land: section 122 of the LAA. See approved Form LAA-1036 keeping or selling prohibited stock: section 122A of the LAA. (No approved form)

Please note forms are prepared and lodged by DoL staff only.

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Pastoral Leases

7.4.2.

Chapter 7

STATUTORY REQUIREMENTS The Pastoral Lands Board is not able to issue a permit unless it is satisfied that any requirements are met in relation to:

7.4.3.



The Agriculture and Related Resources Protection Act 1976: section 117(a) of the LAA;



The Environmental Protection Act 1986: section 117(b) of the LAA;



The Soil and Land Conservation Act 1945: section 117(c) of the LAA;



The Wildlife Conservation Act 1950: section 117(d) of the LAA; or



Any other written law relating to environmental conservation which is applicable to the land under the lease: section 117(e) of the LAA;



The Commonwealth Native Title Act 1993: and



Other Government agency Acts, if required.

APPLICATION PROCESS STEP 1

PREPARE APPLICATION FOR A PERMIT

Applicants will first need to complete the Application for Permit (Refer Appendix E – Table C1). The application, a plan (where required) and fees (of an amount as determined from time to time by the Board) are to be forwarded to the Pastoral Lands Board. Applicants are encouraged to contact Pastoral Land Business Unit to discuss the proposal prior to applying. All lessees must sign the Application.

STEP 2

CONDITIONAL PRE-APPROVAL

Conditional approval to proceed and seek clearances and referrals is usually given within 14 days of receiving an Application for relatively small-scale projects. Complex or significant proposals will need to be dealt with by the full Board. In these cases, applicants will be advised of the date when their proposal will be considered. Up-front consideration of the proposal and conditional approval, or otherwise, will ensure that time is not wasted on obtaining clearances if the proposal is not suitable for a permit

STEP 3

ADVICE TO APPLICANT ON CLEARANCE REQUIREMENTS

When conditional approval has been given, the Board will send the applicant: 

Advice of conditional approval;



A Clearance and Referral Checklist covering required clearances and referrals.



Pastoral Land Business Unit will deal with referrals and initiate clearances with other government agencies where possible. The applicant will be responsible for seeking approval from the Commissioner for Soil Conservation to clear land and applying to Water and Rivers Commission for a water licence or Department of Fisheries for an aquaculture licence (where applicable).



A list of conditions proposed to be included in the permit.

STEP 4

COMPLETION OF CLEARANCE PROCESS

When all clearances have been obtained, copies are to be forwarded to Pastoral Land Business Unit.

STEP 5

ISSUE OF PERMIT

The Board will issue a permit to the applicant once all requirements have been met. In some cases a permit may be required prior to the issue of a water extraction licence or aquaculture

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Pastoral Leases

licence. The Pastoral Land Business Unit has developed an application kit which provides information on permits and the application process. Refer Appendix E - Tables C1, C2 and C3 – of this manual.

7.5.

ASSESSMENT OF RENT The annual rent payable for a pastoral lease is assessed by the Valuer-General on the basis of a ground rent that the land may be reasonably expected to realize in good condition, for a long term lease for pastoral purposes under which normal outgoings are paid by the lessee. The rent is reviewed every 5 years. The next review is due to take effect from 1 July 2004 and every five years thereafter: section 123 of the LAA.

7.5.1.

5 YEARLY RENT REVIEWS Around 18 months prior to the review date, the Pastoral Lands Board will usually write to the Valuer-General and request him to initiate a project to review the annual rent for all pastoral leases. The Valuer-General will provide the Board with project description and costing of the project. The Board will then make the appropriate allowance in the budget for the project to proceed. The Board will also provide any data requested by the Valuer-General which will assist in the re-assessment process. In accordance with section 123(2) of the LAA, the Valuer-General will consult with the Board with regard to the economic state of the pastoral industry. The Board will provide such advice before the Valuer-General determines the rent. The final rents determined should be provided to the Board around April prior to the review date in order that DoL Financial Services can input the data into its database for production of accounts. The Valuer-General should also advise each Local Government Authority as the rates are based on the valuation of the pastoral lease rental, that is, twenty times the annual rent is the capital unimproved value of a pastoral lease for rating purposes. Each Local Government will then determine the rating system to be used under the Local Government Act 1995.

7.5.2.

OBJECTIONS AND REVIEWS Part IV of the Valuation of Land Act 1978 applies to the assessment of pastoral lease rents and therefore any reviews and objections to the assessment of annual rent under a Pastoral Lease or to a determination of the value of improvements, must be made under that Act: section 126 of the LAA. Lessees wishing to object to a lease determination should contact the Valuer-General’s Office. A formal objection must be lodged within 42 days of the issue of the rent notice. Complaints against an increase in rent are not valid grounds for an objection. A lessee must be able to substantiate that the rent has been incorrectly determined.

7.5.3.

VARIATION OF RENT IF A PERMIT IS ISSUED If the Pastoral Lands Board has issued a permit under Division 5 (refer to section 7.4), section 124 of the LAA, the annual rent for the pastoral lease may be varied to take into account the permitted activity. The Pastoral Lands Board will contact the Valuer-General providing all details about the permit application and seek a determination as to whether a revised rent should apply.

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7.6.

Chapter 7

INSPECTION OF PASTORAL LEASES The inspection of pastoral leases for the Pastoral Lands Board is usually undertaken by the Department of Agriculture and Food WA. Under a Memorandum of Understanding between the Pastoral Lands Board and the Department of Agriculture and Food WA, pastoral leases are inspected in accordance with a pre-determined schedule to determine compliance with lease conditions. The inspection report is called a Range Condition Assessment (RCA). RCA’s are forwarded digitally to Pastoral Land Business Unit by the Department of Agriculture and Food WA when completed. The reports provide data on range condition, infrastructure, recommended management actions and carrying capacities. The reporting officer may also make recommendations for the Pastoral Lands Board. A draft of the report is also forwarded to the lessee by the Department of Agriculture and Food WA. All RCA’s when received are listed as agenda items for consideration by the Pastoral Lands Board. The Board may accept, amend or seek more information in respect to the report and may require actions by a lessee depending upon the issues raised. For example, a lessee may be requested to prepare a management plan (either whole of station or to address a specific area of concern) or be asked to reduce or destock an area on the lease or attend to some infrastructure maintenance. Following a Pastoral Lands Board meeting, the Executive Assistant should forward a copy of the approved report to the lessee and advise of any requirements or determinations of the Board. Any actions to be undertaken by the lessee will be monitored by the Executive Assistant Pastoral Land Business Unit. The Department of Agriculture and Food WA may be asked to undertake follow up inspections at a pre-determined time to check on compliance.

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7.7.

Pastoral Leases

DEFAULTS AND FORFEITURE If a pastoral lessee fails to comply with the LAA, any lease or permit conditions, any condition or determination made by the Board, or the conditions of a soil conservation notice, the Pastoral Lands Board may issue a default notice under section 129 of the LAA. This also includes failure to submit the annual Livestock and Improvements Declaration (that is the annual return which must be submitted under section 113 of the LAA). If a lessee fails to comply with a default notice the Minister may proceed to prosecution or forfeiture or both.

7.7.1.

ISSUING OF A DEFAULT NOTICE Prior to issuing a default notice, there should have been written correspondence to the lessee advising of any breaches or requirements and detailing the required response to rectify the breach or to meet the requirements. A default notice will be issued when a lessee has failed to comply within a reasonable time without any legitimate mitigating circumstances. It is used as a last resort to enforce compliance. A default notice should be completed accurately and specify the provision, condition, determination or notice with which the lessee has failed to comply. It also needs to specify what actions are required and timeframes for remedy. In addition, it informs the lessee that failure to comply could result in a fine, the forfeiture of the lease, or both. A default notice will usually be issued in the approved form (see Approved Form LAA-1051). Please note

forms are prepared and lodged by DoL staff only. The determination to issue a default notice is made by the Pastoral Lands Board at a Board meeting. A default notice, when completed, must be signed by the Chairman and is sent to the lessee at the last known address and also the address of the registered lessee, by registered post.

7.7.2.

PROSECUTION FOR FAILURE TO COMPLY WITH A DEFAULT NOTICE If a pastoral lessee fails to comply with a default notice within the specified timeframe, the Minister may instigate prosecution proceedings for an offence against the LAA, or issue a notice of intention to forfeit the lease, or both. It is an offence to fail to comply with a default notice: section 130 of the LAA. Prosecution for offences is made under the Justices Act 1902 and a complaint must be laid before the Court of Petty Sessions. The Court will deal with the complaint under its usual procedures. The lodgement of a complaint must be made on the appropriate form at the nearest Court to where the offence took place and within 12 months of the offence being committed. An offence may incur a penalty of up to $50,000 and a daily penalty of $1,000. The Legal Services Branch of DoL would manage the prosecution process.

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7.7.3.

Chapter 7

ISSUING A FORFEITURE NOTICE If a pastoral lessee fails to comply with a default notice within the specified timeframe, the Minister may instigate forfeiture action under section 35 of the LAA to terminate the Pastoral Lease, in addition to, or instead of, proceeding to prosecution. More information about the forfeiture process can found in Chapter 2 of this manual. The Pastoral Lands Board would consider the circumstances and recommend a course of action to the Minister. If the Minister proposes to proceed with forfeiture, a Notice of Intention to Forfeit is prepared for the Minister’s signature. The Notice, once signed, would be forwarded by registered post to the registered lessees, who may lodge an appeal within 30 days: section 35(2) of the LAA. Any interest holders in the lease, for example, mortgagees, must also be advised of the intention to forfeit. The lessee may appeal under section 37(1) of the LAA against the intent to forfeit by application to the Minister for Lands. The appeal is lodged with the Minister, but is determined by the Governor: section 38 of the LAA. If an appeal is lodged within the specified period, then under section 38 of the LAA, a submission from the Minister to the Governor in Executive Council must be prepared. The submission must set out the background, the grounds of the appeal, the Minister’s comments on those grounds, and a recommendation. The Governor may seek his own advice and must decide to either dismiss or uphold the appeal. The Governor must then advise the Minister for Lands in writing of his decision. The Minister is then required to notify the appellant in writing of the Governor’s decision: section 39 of the LAA, see Chapter 3 of this manual. If there is no appeal or an appeal is dismissed, a Forfeiture of Lease Order (Approved Form LAA-1020 - please note forms are prepared and lodged by DoL staff only) will be prepared and forwarded by DoL to the Minister for signature prior to advising the registered lessees and other interest holders. The Order document will then be lodged for registration. All LANDGATE and Pastoral Land Business Unit records are then to be amended. The land in the forfeited Pastoral Lease becomes unallocated Crown land and all improvements remaining on the land become the property of the Crown (subject to payment of the value to the lessee, if the Minister considers it appropriate). The Pastoral Lands Board will then consider whether the land should be re-released for pastoral purposes. (Paragraph 7.2.2). The Forfeiture of Lease Order may allow an existing sublease or caveat to continue, despite the forfeiture. The forfeiture of a lease does not release the lessee from its liability to pay outstanding rent and interest accrued to the date of forfeiture. If an appeal is upheld by the Governor, the registered lessees will be advised, as will other interest holders, and the pastoral lease will continue. Normal processes to ensure compliance will also continue.

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7.8.

Pastoral Leases

ABANDONMENT OF A PASTORAL LEASE If the Pastoral Lands Board is of the opinion that a pastoral lease has been abandoned, or otherwise left without proper care, control and management, it may recommend to the Minister that the Board be authorised to assume temporary care, control and management of the lease: section 133 of the LAA. This can be particularly important as the lease may still be carrying stock and therefore continuing management is essential.

7.8.1.

CONTROL AND MANAGEMENT By Ministerial Order under section 133(1) of the LAA, the Pastoral Lands Board or its agents may assume control over a pastoral lease until the Board is satisfied that: 

the lessee has assumed control or control has been assumed by some other person entitled to do so, such as the mortgagee; or



the pastoral lease has expired or been forfeited and the land is not to be made available again for pastoral purposes.

The Ministerial Order must be registered although under section 133(5) of the LAA it is valid from the time it is issued. Any mortgagees should be advised of the situation. The Pastoral Lands Board, upon issue of an order, would usually immediately retain a capable station manager to be placed on the property as caretaker. A caretaker would be employed under short-term contract. The Board will then make an assessment of the condition of the rangeland, infrastructure and stock and whether it is likely that the lessee will return to the property.

7.8.2.

APPEALS If a pastoral lessee is aggrieved he may lodge an appeal with the Minister for determination by the Governor in the same manner as described under Paragraph 7.7.3 (section 37-40 of the LAA). An appeal must be lodged within 30 days of the Board being authorised by the Minister to take management control of the lease. The Minister may, however, allow a longer period if special circumstances apply: section 133(3) of the LAA.

7.8.3.

COSTS INCURRED BY BOARD CONTROL Section 133(4) of the LAA provides that any costs incurred by the Board in management of the lease are a charge against the lease and take priority over other charges against the lease. These costs are recoverable from the lessee, by the Minister in a court of competent jurisdiction, as a debt due to the Crown.

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7.9.

Chapter 7

SALES AND TRANSFERS The Pastoral Lands Board is responsible for making recommendations to the Minister for Lands (Minister) with respect to the sale and transfer of pastoral leases. The Executive Officer, Pastoral Land unit (PLu) may exercise delegated authority on behalf of the Minister under sections 18 and 134 of the Land Administration Act 1997 (LAA), which deal with these matters. A Pastoral Lease cannot be sold or transferred without prior approval in writing from the Minister under section 18 (1) and (7) of the LAA.

7.9.1.

APPROVAL TO SELL When a lessee wishes to offer its Pastoral Lease for sale it must first apply in writing to the Minister. The Standard Conditions for the Transfer of a Pastoral Lease dated 23 February 2009 details the Pastoral Lands Board policy in respect to the sale and transfer of a pastoral lease. The Executive Officer PLu will then determine when the last inspection was undertaken. The Department of Agriculture and Food WA (DAFWA) will be requested to provide advice relating to the most recent Rangeland Condition Audit (RCA) or Follow Up Inspection (FUI) on file. If the DAFWA advises that the RCA or FUI on file is current, and that there were no Range Condition, Stocking and/or infrastructure issues, or if previous directives issued by the Board to the lessee were still current, generally but not always permission to sell will be granted by the Executive Officer, Pastoral Land unit exercising delegated authority on behalf of the Minister under sections 18 and 134 of the LAA. If the DAFWA advises that the most recent RCA or FUI on file is no longer current an inspection will be carried out. The RCA or FUI will be tabled at the next Pastoral Lands Board meeting for consideration. The Board will consider the report and any other factors and recommend conditions of sale to the Minister. The lessee may then be given permission to offer the property for sale subject to the Standard Conditions for the Transfer of a Pastoral Lease dated 23 February 2009 and the conditions contained in the permission to sell letter. Permission to sell is valid for 12 months. If the lease is not sold within that time the lessee must re-apply for permission to sell.

7.9.2.

APPROVAL TO TRANSFER Once the lessee has negotiated a sale, the proposed purchaser must provide the Minister with a written application: 

detailing the names of the proposed purchasers, including their citizenship; and



addressing the conditions contained in the permission to sell letter, the standard conditions of transfer (refer to the Standard Conditions for the Transfer of a Pastoral Lease dated 23 February 2009) and any additional conditions that apply.

If a company is to be the purchaser it is to provide a copy of the current company search showing details of the shareholders, their citizenship and percentage of shares and voting rights applicable to those shares. Subject to satisfactory compliance with the above, Ministerial approval to transfer may be given by the Executive Officer, Pastoral Land unit exercising delegated authority under sections 18 and 134 of the LAA.

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The purchaser will then be advised that an executed and stamped (stamp duty assessed and paid) Transfer of Mortgage Charge or Lease document (T3C) may be presented for Ministerial consent thereon. The endorsed T3C will be returned to the purchaser to lodge for registration by the Registrar of Titles. It should be noted that Minister's consent may not be endorsed unless the rent has been paid up to date and the Annual Return of Livestock and Improvements has been submitted to the Pastoral Land unit.

7.9.3.

RESTRICTION ON TRANSFER OF SHARES IN COMPANIES Many pastoral leases are held by companies. From time to time, transfers of shareholdings are proposed. These are treated in the same manner as a sale of an interest in a pastoral lease. In some cases, only some of the shares are to be transferred and in other cases all the shares of the company are to be transferred. If a share, or shares, in a company are to be transferred to remaining shareholders, the Board will not require an inspection, nor will any conditions of sale be imposed. If, however, a new party or parties are to become shareholders, then the normal process for sale and transfer of a pastoral lease is followed as described in Paragraphs 7.9.1 and 7.9.2. The only difference being that, instead of the transfer being by Transfer of Land, it will be by a Transfer of Shares. The instrument of share transfer must still, however, be endorsed with Ministerial consent prior to lodging with the Australian Securities and Investments Commission. An exception to this is where the principal activity, or one of the principal activities, of the company, that is the pastoral lessee, does not include the working of a pastoral lease, for example, a mining company. In such cases, Ministerial consent is not required for a transfer of shares.

7.9.4.

MAXIMUM AREA The Minister, in accordance with section 136(1) of the LAA, may not approve the grant of a pastoral lease, or the transfer of any interest in a pastoral lease, to a person if the result would be that the person’s beneficial interest would exceed 500,000 hectares of pastoral leasehold. The Minister, however, does have the discretion to allow an interest to exceed 500,000 hectares if the grant or transfer would not result in so great a concentration of control of pastoral land as to be against the public interest. For the purposes of calculating the interest the following applies: 

If a person is the sole lessee of a pastoral lease the entire area under lease is imputed to that person: section 136(2)(a) of the LAA;



If two or more persons are joint tenants of a pastoral lease the entire area under lease is imputed to each of them: section 136(2)(b) of the LAA,

For example:

Pastoral Lease 3114/1500 – area 366, 432 hectares Lessees – Joe Smith, Rita Wilson and Fred Jones as joint tenants All three lessees hold a beneficial interest of 366,432 hectares each



If two or more persons are tenants in common of a pastoral lease the area under lease is imputed to each person in direct proportion to their shares in the lease: section 136(2)(c) of the LAA,

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For example:

Pastoral Lease 3114/1500 – area 366,432 hectares Lessees – Joe Smith 2/5, Rita Wilson 2/5 and Fred Jones 1/5 Beneficial interest

- Joe Smith 146,572.8 hectares - Rita Wilson 146,572.8 hectares - Fred Jones 73,286.4 hectares



If the pastoral lessee is a company or companies the area of land imputed to them is calculated in the same manner as detailed as above. The area of land is also imputed to the shareholders in proportion to the voting rights represented by their shareholdings in the same manner as tenants in common are calculated: sections 136(2)(d) and 136(3) of the LAA.

If a transfer is proposed which if approved would place a person or company in excess of the 500,000-hectare limit then the Pastoral Lands Board will consider the circumstances and provide the Minister with a recommendation as to whether or not it considers the acquisition to be against the public interest.

7.9.5.

FOREIGN OWNERSHIP The current Government policy with respect to foreign ownership requires at least 50% Australian equity to be maintained during the term of the lease. This is not a statutory requirement, but has been Government policy since 1979 and has been supported by successive Governments since that time. If, however, it can be shown that no Australian interest could be obtained, then the Minister may seek Cabinet approval to allow a greater than 50% foreign ownership. The vendor would need to provide evidence that genuine endeavours have been made to obtain the required Australian equity by production of material to indicate that there had been adequate (Australia-wide) publicity to the proposed sale either by auction, inviting tenders or by private treaty. If a sale of a pastoral lease is to an interest that will be greater than 50% foreign owned, it is to be considered the purchaser/s would need to respond to the standard conditions of transfer, any additional conditions and provide the evidence mentioned above. The Pastoral Lands Board would then consider the application and provide advice to the Minister.

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7.10.

Pastoral Leases

MORTGAGES OVER PASTORAL LEASES Under section 134(1)(b) of the LAA, a mortgage or charge over a pastoral lease cannot be created without prior Ministerial approval in writing. Prior Ministerial approval in writing is also required to a sub-lease, licence or profit á prendre of a pastoral lease: section 134(1) of the LAA. The Minister may approve a mortgage or charge over a pastoral lease. A mortgage or charge will be registered on the Crown land title for the pastoral lease. Ministerial consent can be granted under sections 18 and 134 of the LAA under delegated authority by the Executive Officer, Pastoral Land Business Unit. An executed and stamped document must be presented for consideration by the Executive Officer. The Executive Officer will check all land description and lessee details and confirm that the rent is paid up to date. If the document is in order then he will endorse Ministerial consent. The client may then lodge the document for registration by the Registrar of Titles.

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7.11.

SUBDIVISION OF A PASTORAL LEASE

7.11.1.

BACKGROUND There may be circumstances when a pastoral lessee may wish to subdivide a pastoral lease. This may be to retain one part and sell the other, or sell both parts following subdivision. Examples could be when there is a dissolution of a family partnership, where the lease is too large to be managed effectively, or where there are physical attributes that make effective management difficult. The Minister may not approve the subdivision of a pastoral lease unless the Pastoral Lands Board is satisfied that, when fully developed, each part is capable of carrying sufficient authorised stock to enable it to be worked as an economically viable and ecologically sustainable pastoral business unit. If a part of the subdivision is not considered to be economically viable, a subdivision will not be approved unless the non-viable part is amalgamated with an adjoining pastoral lease or becomes part of a pastoral business unit with an adjoining pastoral lease. A subdivision may only occur as part of a sale or transfer process.

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7.11.2.

Pastoral Leases

PROCESS In the first instance a lessee must apply to the Board for consideration to a proposed subdivision and provide: 

a plan showing the proposed subdivision;



details of the land systems within each part of the proposed subdivision;



details of the expected carrying capacities for each part of the proposed subdivision;



budget scenarios for each part of the proposed subdivision: and



proposed names for the subdivided parts if they are to be stand alone stations.

Pastoral Land Business Unit will then refer the proposal to the Department of Agriculture and Food WA and seek advice as to the viability of all parts of the proposed subdivision. Geographic Names Committee approval will be sought for the proposed new station names. Upon receipt of advice from the Department of Agriculture and Food WA the Board will consider the proposal and make a recommendation to the Minister for Lands. Approval may be granted on behalf of the Minister under delegated authority. If approval is granted by the Minister then Pastoral Land Business Unit will advise the lessee of such including details of the conditions of sale to apply. However, no further action would be taken until such time as the lessee advised that it has signed a Contract of Sale. The proposed purchaser would need to comply with the requirements as set out in Paragraph 7.9.2. If a transfer is approved, LANDGATE Deposited Plan/s will be drawn to define the subdivided parts. Documents will then be prepared to create Crown land titles for all parcels of land involved. The plans can be drawn “in house” within the priorities of the relevant branch or, if the lessee expresses urgency, the work may be outsourced at the lessee’s cost. The lessee will then be provided with land description details and be requested to arrange the preparation, execution and stamp duty assessment of Transfer of Land document/s and any other necessary documents such as Discharge of Mortgages, Withdrawal of Caveats. The Transfer document/s will need to be submitted to the Executive Officer of Pastoral Land Business Unit for endorsement of Ministerial consent under delegated authority. The documents may then be lodged together with the duplicate Crown Lease for registration by the Registrar of Titles. The original pastoral lease will subsist until its current expiry date of 30 June 2015, however the new lessees will be registered on the respective Crown land titles, which will be issued for the respective land parcels. Upon completion of registration, the Oracle Property Management System (ORACLE) will be updated.

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7.12.

Chapter 7

AMALGAMATION OF PASTORAL LEASES A key focus of the Pastoral Lands Board is the economic viability of pastoral leases and it prefers that non-viable leases are not perpetuated. A strategy in dealing with this issue is the amalgamation of adjoining leases particularly if they are unviable. Amalgamation of Pastoral Leases may occur under section 142 of the LAA. The Pastoral Lands Board encourages the amalgamation of adjoining leases when they are held by the same persons and one or both is considered unviable.

7.12.1.

AMALGAMATION OF ENTIRE LEASES If two or more pastoral leases are held by the same lessee/s, with the same proportion of shares and the leases have the same conditions other than the term of the lease, the Minister may by order provide that the leases be amalgamated: section 142(1) of the LAA. Although the LAA does not specify that the leases must be adjoining it is generally practice to amalgamate two or more leases if they are adjoining and can be effectively run as one. If the lessee/s of pastoral leases are eligible for amalgamation, on request and on payment of the prescribed fee, the Pastoral Lands Board may recommend to the Minister that amalgamation proceed. The Board is required to consider a request for amalgamation and must not unreasonably refuse to recommend amalgamation: section 142(2) of the LAA. The lessee/s should nominate the station name that is to be used for the amalgamated leases. To achieve the amalgamation, Crown land titles will be created for all parcels of land involved. A Lease of Crown Land and Amalgamation Order (leasehold) (see approved Form LAA-1002) will be prepared and lodged for registration by the Registrar of Titles. The Amalgamation Order must specify a name for the amalgamated lease. The new pastoral lease rent will be the combined rent of the amalgamated leases. On amalgamation, the term of the new lease must not be longer than the period of the shorter term of the leases being amalgamated.

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7.12.2.

Pastoral Leases

AMALGAMATION OF PART LEASES For various reasons a pastoral lessee may wish to transfer a portion of the lease to an adjoining lease. In most cases this will be due to geographical features which preclude the use or render the portion impractical to use by the lessee of the lease in which the land is situated. In the first instance, a lessee must apply, in writing, to the Board providing a plan of the area proposed for transfer and amalgamation into the adjoining lease. The plan should provide as much information as possible including angles, dimensions and GPS coordinates. The lessee to whom the land is to be transferred must also write to the Board and confirm his agreement to the proposed amalgamation. The request will be referred to the Department of Agriculture to assess the impact of the proposal in terms of viability on the lease from which the land is to be excluded. If the Board is satisfied that there will be no adverse effects on the station it will normally approve the proposal and recommend the proposed part amalgamation to the Minister for Lands. Following approval by the Board, and if the Minister approves the proposed amalgamation then consideration will be given to whether survey is required or whether the information supplied is sufficient to enable a Deposited Plan/s to be drawn to support the issue of Crown land title/s. This will be assessed in consultation with the Land Boundary Services/ Statutory Services Group in LANDGATE. If there is to be a shared boundary well or bore it is likely that survey will be required and the lessees involved will need to confirm on which side of the boundary the well or bore will be located. If it is determined that survey is required, the proposal will be forwarded to the Manager, Survey Coordination, DoL, to enable an estimate of costs to be obtained. The lessee will then be advised of the requirements and advice sought as to whether he wishes to proceed. The lessee will also be given the option of appointing a Surveyor of his choice who is accredited by LANDGATE; however, the instructions to proceed must be given by the Survey Coordinator. If survey is required and the lessee/s agrees to meet the costs instructions to proceed will be issued. Once Deposited Plan/s have been drawn, the lessee/s will then be provided with land description details and be requested to arrange preparation, execution and stamp duty assessment of a Transfer of Land document and any other necessary documents such as Discharge of Mortgages, Withdrawal of Caveats. The Transfer document may then be submitted to the Executive Officer of Pastoral Land Business Unit for endorsement of Ministerial consent under delegated authority. Ministerial consent cannot be given if the rent has not been paid up to date. Pastoral Land Business Unit staff will then prepare Applications for CLT/s (if not already issued) and a Lease of Crown Land and Amalgamation Order (Leasehold). The lessee or his agent may lodge the Transfer independently and Pastoral Land Business Unit staff will lodge the Lease of Crown Land and Amalgamation Order (Leasehold) together with any Applications for CLT/s for registration by the Registrar of Titles. Alternatively both parties may lodge the documents at the same time. On amalgamation, the term of the new lease must not be longer than the period of the shorter term of the leases being amalgamated. Upon completion of registration, the Oracle Property Management System (ORACLE) is updated.

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7.13.

Chapter 7

ADJUSTMENT OF BOUNDARIES Boundaries between 2 pastoral leases may be adjusted by the Minister, on recommendation of the Pastoral Lands Board, if an application is made by the 2 lessees and on payment of a prescribed fee, if any: section 141 of the LAA. At this stage the only fee payable would be a document preparation fee. Circumstances for using this provision would be when: a boundary does not follow a fence line and the lessees wish to adjust the legal boundary to confirm with the on ground accepted boundary; or as the result of a cadastral survey it is found that the surveyed boundary does not conform with the current legal boundary. An application to adjust the boundaries would need to be made, in writing, by the affected lessees. Where it is proposed to amend a boundary to conform with an existing fence line, the application must be accompanied by a plan showing the current legal boundary, the fence lines and coordinates and dimensions of the proposed boundaries. An assessment will be made as to whether there will be any change to the stock carrying capacity for the leases. Consultation with the Department of Agriculture may be required if the areas of the lease are to be significant. The Board would consider the proposal and then make a recommendation to the Minister. If the Minister approves the proposed amendment, an assessment will then be made in consultation with the Land Boundary Services/ Statutory Services Group in LANDGATE as to whether a survey is required or whether information supplied is sufficient to enable a Deposited Plan to be drawn. If it is determined that survey is required, the proposal will be forwarded to the Manager, Survey Coordination, DoL, to enable an estimate of costs to be obtained. The lessee/s will then be advised of the requirements and advice sought as to whether it wishes to proceed. The lessee/s will also be given the option of appointing a Surveyor of its choice who is accredited by LANDGATE; however, the instructions to proceed must be given by the Survey Coordinator. If survey is required and the lessee/s agrees to meet the costs, instructions to proceed will be issued. If it is determined that survey is not required, the Statutory Services Group will prepare the necessary Deposited Plan/s. The adjustment of boundaries is made by way of Ministerial Order so once Deposited Plans have been drawn a Pastoral Lease Boundary Amendment Order would be prepared and forwarded for the Ministers signature. For a copy of the approved form to be used, see Form LAA-1034. (Please note forms are prepared and lodged by DoL staff only.) Applications for Crown Titles will also be prepared if not already issued. When the document has been returned from the Minister’s Office it will be lodged for registration by the Registrar of Titles. Upon completion of registration, ORACLE will be updated to reflect the area amendments and adjustments to rents. The rent will be adjusted in proportion to any change to the stock carrying capacity: section 141(3) of the LAA.

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7.14.

Pastoral Leases

PASTORAL BUSINESS UNITS The Minister may approve under section 142A of the LAA the creation of a pastoral business unit comprising two or more pastoral leases or part leases if: 

a new lease is granted or part of a lease is transferred (which is not by itself a viable unit) and an adjoining lease is held by the same lessees, and



the lessees hold the same proportionate share of each lease or part of lease.

Refer to Paragraphs 7.11.1 and 7.11.2. The reason for this option, rather than amalgamating with the adjoining lease, is that the Commonwealth Native Title Act 1993 prevents grants of greater tenures (including lease terms) than currently exist unless the “future acts” procedures under that act are complied with, which may take years. Native Title issues need to be addressed when parts of a greater term lease are to be included into an existing pastoral lease for a lesser term. The term of a lease is determined by its start date to its current finish date of 30 June 2015. For example, a part of a lease that commenced on the 1 January 1962 could not be amalgamated into a lease that started 1 January 1970, without reducing the lease term of the 1962 portion To create a pastoral business unit, the Pastoral Lands Board will make a recommendation to the Minister in the first instance. Once approved by the Minister for Lands, Crown land titles for all land parcels will need to be issued. Memorials, in the approved form, will need to be created and lodged for registration for each lease, or part of a lease, that is to comprise the pastoral business unit. Memorials are to reflect which provisions of Part 7 of the LAA and that the current lease conditions will apply to the pastoral business unit. The pastoral business unit is given a name (usually the pastoral station name). The Minister may vary or withdraw a pastoral business unit at any time. Once memorials have been registered ORACLE will be updated. See Memorials (Approved Form LAA-1070) and Withdrawal of Memorials (Approved Form LAA-1071). Please note forms are prepared and lodged by DoL staff only. The various pastoral leases (or parts of leases) comprising the pastoral business unit are to be treated as one pastoral lease, for the purposes of: 

approval of any transfer, mortgage or charge of the pastoral lease;



the maximum area of the pastoral lease;



any other applicable provisions of the LAA listed in the memorial.

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Pastoral Leases

7.15.

Chapter 7

RENEWAL OF PASTORAL LEASES All current pastoral leases issued under the now repealed Land Act 1933 have a common expiry date of 30 June 2015. These leases, however, all commenced on varying dates and lease terms vary from approximately 21 to 49 years.

7.15.1.

RENEWAL OF PASTORAL LEASES ISSUED UNDER THE LAND ACT 1933 In 1995, under provisions in the former Land Act 1933, pastoral lessees could apply to the Minister and seek advice as to the future of their leases upon expiry on 30 June 2015. The Minister was obliged, under that Act, to respond by 31 December 1997. Most pastoral lessees were given an offer of renewal subject to the following conditions: 

Compliance with lease conditions, including stocking requirements and maintenance of infrastructure, at the time of expiry on 30 June 2015;



there being no Soil Conservation Notices or other orders by the Soil and Land Conservation Commissioner in force;



there being no unfulfilled requirements of the Soil and Land Conservation Commissioner and/or the Pastoral Lands Board in relation to observance of lease conditions under the Soil and Land Conservation Act and the LAA;



exclusion of areas from the existing lease that may be required for a public purpose; and



the existing annual lease rental for the lease as at 30 June 2015 will apply to the renewed lease, subject to any reduction in the rent payable under the lease as a result of an exclusion of land for a public purpose. The rental review period for the renewed lease will continue to apply every five years in accordance with section 123(4) of the LAA. The next rent review for the renewed lease will be on 1 July 2019. The new lease term is to be the same term as the current lease.

There were amendments to the LAA in December 2000 which affected condition (4) listed above. The Minister's may exclude land from a renewed lease by notice to the lessee, which must be given within 2 years of the amendments coming into effect (that is, 2 years from 7 December 2000). If the lessee is given a notice to exclude land, the lessee may: 

accept the conditions in the notice;



withdraw from the new lease; or



enter into negotiations on the area to be excluded.

If agreement cannot be reached within 2 years of the notice being given, the lessee will be regarded as having withdrawn from the agreement to renew the lease: section 143(6g) of the LAA. The exclusion of any land will only take effect from the commencement of the renewed lease (that is 1 July 2015). If no notice is given to the lessee within the 2 years, then no land can be excluded from the renewed lease under these provisions: section 143(6i) of the LAA.

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Chapter 7

7.15.2.

Pastoral Leases

RENEWAL OF PASTORAL LEASES ISSUED UNDER THE LAND ADMINISTRATION ACT 1997 A pastoral lessee of a pastoral lease issued under the LAA may, in accordance with the provisions of section 140 of the LAA, at any time during the period of 12 months before the date 10 years before the expiry of its lease, apply in writing to the Minister requesting an offer of a renewal of the lease. The Minister in turn, must no later than 8 years before the expiry of the pastoral lease determine that: 

the lessee is not to be offered a renewal or grant, and notify the lessee accordingly;



determine that the lessee is to be offered a renewal of the lease, on specified conditions, and make an offer to the lessee accordingly; or



determine that the lessee is to be offered the grant of a lease over part only of the land under the present lease, on specified conditions, and make an offer to the lessee accordingly.

If an offer of renewal is made by the Minister, the lessee or the successor in title to the lessee, may accept an offer at any time within one year after the date that the offer is made. A renewal or grant offered would commence immediately upon the expiration of the existing pastoral lease. Prior to making a decision the Minister is to seek and receive written advice from the Pastoral Lands Board as to whether the lessee should be offered a renewal of the lease or grant of a lease over only part of the land currently under lease.

7.15.3.

COMPENSATION FOR IMPROVEMENTS ON EXPIRY OF PASTORAL LEASES In accordance with section 114(1) of the LAA, a “continuing lease” is a pastoral lease which was granted prior to the LAA or has been renewed under section 140 of the LAA or section 98 (11) of the repealed Land Act 1933. If a continuing lease expires and is not further continued the lessee is entitled to receive compensation for any lawful pastoral improvements remaining on the lease. The amount of compensation will be the market value of the improvements on the date of expiry as determined by the Valuer-General: section 114(2) of the LAA. If at the time of renewal only part of the lease is renewed, the compensation at market value is only payable for any lawful pastoral improvements remaining on the portion not to be renewed: section 114(4) of the LAA. If a pastoral lease other than a continuing lease expires, that is, a lease issued under the LAA, then no compensation is payable for improvements remaining at the expiry of the lease.

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Pastoral Leases

7.16.

Chapter 7

SHARED WATERS ON PASTORAL LEASES There are many pastoral leases throughout the State where watering points are located on or near the common boundary of the leases and are shared by the adjoining lessees. This is usually undertaken by way of a “gentlemen’s agreement” but can lead to difficulties in securing the right to share the facility. Generally the best way to protect a right of this type is by the grant of an easement. An easement is a legal document which sets out the rights that an owner of land can exercise over another person’s land, including responsibility for repairs and maintenance of the facility. The other owner of land is legally prevented from doing anything that would interfere with the enjoyment or exercise of those rights. An easement: is a right granted in relation to land that is registered on the certificates of Crown land title relating to both pastoral leases; can be enforced in a Court by both parties to it; runs with the pastoral leases, so that whenever either lease is transferred to a new pastoral lessee the easement will still be valid.

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Chapter 7

7.16.1.

Pastoral Leases

CREATION OF AN EASEMENT There are two ways an easement can be created over a pastoral lease. However, in either case, it cannot be created without the agreement of both pastoral lessees, and all persons having a registered interest in both pastoral leases. This would include, for example, a mortgagee and a sublessee.

OPTION 1: The Minister as the owner of Crown land, through DoL, has the authority to grant an easement over portion of a pastoral lease (with the lessees consent) in favour of an adjoining pastoral lease and all future lessees of the adjoining pastoral lease. This easement will be effective until the adjoining pastoral lease expires, is surrendered or is otherwise terminated.

OPTION 2: A pastoral lessee (with the Ministers consent) could grant an easement over a portion of the lease in favour of the adjoining pastoral lessee and all future lessees of the adjoining pastoral lease. This easement will be effective until the first of either pastoral lease expires, is surrendered or otherwise terminated. In either case a Crown land title for the pastoral lease over which the easement is to be registered will need to be created. The pastoral lessees will need to have an easement document prepared by a solicitor. A plan that shows the easement area in sufficient detail would also need to be prepared by a surveyor. The difficulty, in some cases, will be identifying precisely where the facility is located in relation to the pastoral boundaries if they are not surveyed, so that the easement can be prepared to correctly reflect the location of shared watering points. The lessees or their solicitor must submit the easement document to the Executive Officer, Pastoral Land Business Unit who, if appropriate, may endorse Ministerial consent under section 18 of the LAA by delegated authority. Once Ministerial approval has been granted the client may lodge the easement document for registration by the Registrar of Titles. Whether an easement is registered, or there is some more informal agreement or arrangement in place, the rights will be enforced under them in the same way. It is up to the party that is not in breach to enforce its rights against the other party, in a Court. It is a matter for the parties to the easement to resolve. The Pastoral Lands Board would not have any power to intervene if a pastoral lessee breaches the terms of an easement (or any other agreement or arrangement).

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Pastoral Leases

7.17.

Chapter 7

DIVIDING FENCES There is no requirement under the terms of a pastoral lease to construct a boundary fence. A boundary fence may, however, be required in order for a pastoralist to effectively control his stock and manage the lease to its best advantage as required under section 108 of the LAA. The Dividing Fences Act 1961, administered by the Department of Local Government and Regional Development, does apply to pastoral leases (where there is more than five years of the term left to run). That Act provides the statutory basis for dealing with boundary fences and the rights and responsibilities of neighbours in cost sharing for construction and maintenance. Available on the Department of Local Government website www.dlgrd.wa.gov.au are two publications in regard to dividing fences that are useful reference documents for landholders requiring assistance on this issue. These publications are “Dividing Fences – Rights and Responsibilities” and “Dividing Fences Act 1961 – Court Action Kit”.

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Chapter 7

7.18.

Pastoral Leases

PUBLIC ACCESS ON PASTORAL LEASES Access to pastoral leases by third parties including tour operators, fishermen and tourists is an increasing issue involving lessees and the Board. The community at large has expectations regarding the access to remote areas of interest, whether it be for fishing or passage through the land. Situations have also arisen where tour operators have been denied access to pastoral land after years of operation or have been asked to pay excessive fees to continue operations. In general, multiple use of pastoral lands is supported, provided that the activities of the public do not adversely affect the pastoral operations or cause environmental damage to the land. A major problem is that the public generally does not have an understanding of the rights and responsibilities of pastoral lessees. Unfortunately, the actions of the minority through things such as leaving gates open, damaging property, killing stock and leaving rubbish, have in some cases resulted in access to the pastoral land being rescinded to the public after many years of open access. This can lead to ill feeling against pastoralists who are trying to protect their livelihood. A number of principles and factors are considered to apply to the issue of public access over a pastoral lease. These include but are not limited by the following: 

A pastoral lessee has a right of quiet enjoyment of the pastoral lease land.



A person (not acting under the authority of an Act – for example, CALM Act or Mining Act) entering on to pastoral lease land without the pastoral lessee’s authority or permission is a trespasser. Trespassers may be prosecuted under section 82B of the Police Act.



A pastoral lessee has obligations under a pastoral lease to maintain roads and improvements etc on the pastoral lease.



A pastoral lessee may give others permission to enter on to pastoral lease land provided that the pastoral lessee is predominantly using the land for pastoral purposes.



If permission to enter is granted to the public, for example passing tourists, any fee charged is to be no more than that required to cover costs involved in permitting access. Fees charged may be based upon apportionment of time involved in dealing with tour operators, tourists, maintenance costs of roads, liability insurance, property damage, stock loss or other relevant costs.



Potential lessees may be potentially liable to persons entering pastoral leases, particularly when fees are charged for access



If fees charged are large enough to constitute a primary or secondary income then it is considered that rather than a cost recovery exercise, the pastoral land is being used for other than pastoral purposes.



A permit under the LAA must be applied for when the pastoral lessee is intending to use the land for non-pastoral activities including station stay or tourism purposes.



Section 106 of the LAA creates an offence for using land under a pastoral lease for purposes other than pastoral, unless a permit has been issued by the Board.



Pastoral Leases may be subject to public access routes made by agreement between the Minister for Lands and the Lessee. See Chapter 5 of this manual.

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CROWN LAND ADMINISTRATION AND REGISTRATION PRACTICE MANUAL

CHAPTER 08 EASEMENTS

TABLE OF CONTENTS 8.

EASEMENTS

8-1

8.1.

INTRODUCTION

8-1

8.2.

WHAT IS AN EASEMENT?

8-2

8.3.

TYPES OF EASEMENTS

8-3

8.3.1. EASEMENTS OVER CROWN LAND

8-3

8.3.2. EASEMENTS GRANTED UNDER THE LAND ACT 1933

8-5

8.3.3. PUBLIC ACCESS EASEMENTS

8-6

8.3.4. EASEMENTS GRANTED UNDER OTHER ACTS

8-6

8.3.5. SERVICE EASEMENTS OVER ROADS

8-11

8.4.

HOW TO CREATE EASEMENTS OVER CROWN LAND

8-12

8.4.1. GENERAL 8-12 8.4.2. EASEMENTS OVER LAND BEING SOLD IN FEE SIMPLE.

8-14

8.4.3. EASEMENTS OVER CLASS A RESERVES

8-15

8.4.4. FINITE TERM EASEMENTS

8-16

8.4.5. PRICING OF EASEMENTS

8-17

8.4.6. ANNUAL RENT EASEMENTS

8-17

8.5.

REMOVAL OF CROWN EASEMENTS

8-18

8.5.1. BY SURRENDER

8-18

8.5.2. BY MINISTERIAL ORDER

8-19

8.5.3. BY MERGER

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Easements

8.5.4. BY TAKING ORDER

8-20

8.5.5. BY ORDER OF THE REGISTRAR OF TITLES

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ii

Easements

Chapter 8

8.

EASEMENTS

8.1.

INTRODUCTION All easements may be granted and registered against both Crown land and fee simple land under the Transfer of Land Act 1893 (TLA). The relevant provisions for registering easements are set out in Parts III and IVA of the TLA. The general law in respect of easements should also be taken into consideration. Information relating to Easements registered against fee simple land is set out in Paragraphs 7.1 – 7.2.7 of the Land Titles Registration Practice Manual. All easements on Crown land that were granted under Part VIIIA of the Land Act 1933 and were still current as at 30 March 1998 were deemed to be easements granted under the Land Administration Act 1997 (LAA). Easements over Crown land are now created under Part 8 of the LAA but can also be created under the general law and by agreement under the same principles as the creation of easements against fee simple land.

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Chapter 8

8.2.

Easements

WHAT IS AN EASEMENT? A simple definition of an easement is: “A right attached to a parcel of land which allows the proprietor of the parcel to use the land of another in a particular manner or to restrict its use to a particular extent.” The objective of an easement is to benefit the dominant tenement and burden the servient tenement. The dominant tenement is land which has the benefit of the easement attached to it. Conversely, the servient tenement is land which is burdened by the easement. Under the general law, an easement without a dominant tenement cannot exist. In this State, the LAA provides that the Minister for Lands may grant and be the grantee of an easement without a dominant tenement. This type of easement is known as an easement “in gross”. Generally, easements in gross do not attach to land, but to persons, usually a Crown instrumentality or a Local Government Authority for a specific purpose. Easements may be said to be either -



express easements - that is, created by a deed between the grantor and the grantee, or incorporated in a Transfer of Land form; or



implied easements - that is, created as a right of carriageway appurtenant to lots abutting the right of way and set out in a plan of subdivision (for example, under section 167A of the TLA)

Statutory easements are those created by a right given under a statute. Usually, except as modified by statute, easements are required to contain the essential characteristics of an easement at common law to enable them to be registered under the TLA. The essential characteristics of an easement are set out in Paragraph 7.1.3 of the Land Titles Registration Practice Manual and repeated here as follows:



there must be a dominant tenement – that is, the land which enjoys the benefit of the easement;



there must be a servient tenement – that is, the land which is burdened by the easement;



the dominant and servient tenements must be distinct and in separate ownerships (with the exception of easements created on subdivisions under Part IVA of the TLA);



the easement must benefit the dominant tenement and impose an obligation on the servient tenement;



the easement must be capable of running with the land and be made with the express intention of running with the land; and



the dominant and servient tenements must be adjacent, although it is not essential that they must be contiguous.

Easements granted by the Minister under section 144 of the LAA have certain specific statutory benefits (see Paragraph 8.3.1).

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8-2

Easements

8.3.

Chapter 8

TYPES OF EASEMENTS There are various types of easements that may be granted under the LAA other than the normal types of easements set out in Paragraph 7.1.2 of the Land Titles Registration Practice Manual. Easements created over Crown land are usually express easements granted by agreement by the Minister for Lands to an easement holder, known as a grantee. However, it is possible for implied easements to be created under section 167A of the TLA where the right of way is specifically marked as such on the plan for the subdivision of Crown land deposited with the Registrar of Titles. Prior to the LAA, Section 167A did not apply to ROWs shown on subdivisions of Crown land. The usual types of easement presented for registration over Crown land are:

8.3.1.



rights of carriageway;



rights to install and operate drains and drainage works;



rights to install, maintain and operate oil, gas or other pipelines; and



rights to install, maintain and operate electric powerlines, telephone and other cables and supporting pylons.

EASEMENTS OVER CROWN LAND Subject to the Dampier to Bunbury Pipeline Act 1997 (see Paragraph 8.3.4.3), only the Minister for Lands has the power to grant easements over Crown land for a “specified purpose” as defined under section 144(4) of the LAA, or any other purpose the Minister sees fit. Where that easement extends over Crown land the subject of an interest or a Management Order, the consent of that interest holder and the management body must be obtained. The provisions relating to easements in Part 8 of the LAA are similar to the provisions for easements in Part VIIIA of the repealed Land Act 1933. Easements for a “specified purpose” under the LAA means easements for 

the provision of pipes, conduits, cables, transmission lines, and other services;



the provision of any structure, plant, or equipment;



the provision of access for carrying out of any works and the performance of any maintenance that is necessary for, or ancillary or incidental to, giving effect to any of the purposes referred to in the first two dot points above; or



a prescribed purpose.

As at March 2008, no purpose has been prescribed.

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Easements

Easements granted by the Minister for Lands under section 144 of the LAA have the following statutory benefits – such easements 

do not need to have all the legal characteristics of an easement at common law to be created under that section (section 144(2a) of the LAA);



will subsist and run with the land through changes in tenure to that land, including transfers of the Crown interest into the freehold (section 146 of the LAA); and



can be granted by the Minister “in gross” that is without the need for a dominant tenement (section 147 of the LAA).

Easements over Crown land can be created in a number of different ways (Paragraph 8.4). Easements granted over land contained within a State or Crown lease are endorsed on both the lease document and registered on the CLT or QCLT. Where an easement is required over unallocated Crown land, or over any Crown land which has not been surveyed, the easement itself must be clearly defined on a deposited plan and registered on a CLT or QCLT. An LAA Easement cannot be granted over CALM Act Reserves for purposes inconsistent with the CALM Act. (Note however, that the LAA may be amended to enable easements to be granted over CALM Act land for any purpose). 8.3.1.1.

8.3.1.2.

WHO CAN GRANT EASEMENTS OVER CROWN LAND? 

The Minister for Lands has power, under the LAA to grant easements over Crown land. Where that easement crosses over Crown land the subject of an interest or a management order, the consent of that management body and any person having an interest or right to that Crown land must be obtained: section 144(1)(a) of the LAA. Easements granted by the Minister runs with the Crown land.



The registered proprietor of conditional tenure land and the holder of an interest in Crown land acquiring the fee simple of that Crown land may create an easement under sections 148 and 149 of the LAA with the consent of the Minister for Lands.



Persons or statutory authorities with express statutory power under a written law may grant easements over Crown land, for example, the Governor may grant easements to pipeline licensees under the Petroleum Pipelines Act 1969.



In certain limited cases, easements over Crown land may be granted under other legislation and registered under the TLA. See Paragraph 8.3.4.

DIFFERENT TYPES OF EASEMENTS UNDER THE LAA There are 3 main types of statutory easements that may be granted or created under the LAA: 

Easements granted by the Minister for Lands under section 144 of the LAA;



Public Access Easements, being easements for the public at large may be created under sections 195 and 196 of the LAA (See Paragraph 8.3.3); and



Easements may be taken over privately owned land, pursuant to sections 168, 177 and 195 of the LAA.

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Easements

8.3.1.3.

Chapter 8

HOW TO REQUEST THE MINISTER FOR LANDS TO GRANT AN EASEMENT Any interested person can make a written request to the Minister for Lands for the granting of an easement over Crown land. The request should be directed to the relevant Manager within DoL’s Regional and Metro Services and should set out the following information: 

all particulars relating to the request including the relevant Crown land involved;



the type of easement required, its purpose and advice as to the consents obtained from the proprietors or holders of rights over land which the easement is proposed to go through; and



a survey plan or sketch plan identifying the location of the proposed easement.

If granted, the benefit and burden of the easement will be endorsed in the Second Schedule of a Crown title, Qualified Crown title or Certificate of title.

8.3.2.

EASEMENTS GRANTED UNDER THE LAND ACT 1933 Before the implementation of the LAA, Part VIIIA of the Land Act 1933 set out the provisions for the creation of easements over Crown land by the Minister for Lands. The easements could have been granted either for access by the public, or, more commonly, to provide services by the authorities (such as gas, power and water). They may have been granted over Crown land that was leased, or reserved and vested in a Local Government, or over vacant Crown land. Easements that were granted over land contained in a Crown lease were endorsed on the registered lease document itself and on the Crown land record (if one existed). Easements that crossed a number of reserves were recorded on a Crown land record (if one existed) or on the public plan (if a Crown land record did not exist). Where an easement was required over unallocated Crown land (in particular, Crown land that had not been surveyed) the easement itself was surveyed and recorded on the public plan. With the introduction of the LAA on 30 March 1998, easements on Crown land are no longer granted under the Land Act 1933.

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Chapter 8

8.3.3.

Easements

PUBLIC ACCESS EASEMENTS The concept of this particular type of easement came about largely as a result of negotiations between the WAPC and the developers of the Mindarie Keys harbour development for the provision of statutory rights of public pedestrian/cyclist access over parts of the private land around the harbour’s edge. In that case, the developer did not want to transfer pedestrian access way reserves to the Crown. An easement was preferred, so that the developer could retain ownership of the land. No statutory provision existed at the time for the creation of such a statutory right. Hence, section 196 of the LAA was enacted. Section 195 of the LAA was brought across from section 33A of the Land Acquisition and Public Works Act 1902. This section was the provision in State legislation that allowed for the creation of easements in gross over private or Crown lands, in favour of the State of Western Australia, a State instrumentality, statutory body or Local Government. Section 196 specifically provided for the creation of a public access easement for the use and benefit of the general public. Public access easements cannot generally (see following qualification) be created over Crown land; only over alienated land by negotiated acquisition. A public access easement is a particular type of section 195 easement. Where a government agency has acquired land (under Part 9 for a public work, or otherwise) it would be possible for a local government to acquire a public access easement over that land. Where the acquired land has been revested, it may still be possible for the local government to acquire a public access easement over that land. When creating a public access easement, the following principles should be adhered to: 

ensure that the Crown/Local Government is adequately protected against claims for damages arising out of negligence; and



ensure that adequate provision is made for the ongoing maintenance of public access facilities.

As a matter of Government policy, DoL officers should ensure that: 

Where a Local Government/other agency requests a public access easement, that body must provide the Crown with an indemnity against all claims for compensation.



The easement document must include conditions clearly stating the parties that will be responsible for the construction, maintenance and removal of any improvements within the easement.



The easement document should also require provision for public liability insurance and indemnity to the Crown before any approval is granted.



Land may not be taken solely for the purpose of creating a public access easement. Sole acquisition should only be negotiated by agreement.



Long term administration and management issues associated with public access easements need to be carefully considered before proceeding to create the easement.

These easements can also be used in shopping centres and to provide greater flexibility than rights of way and pedestrian accessways created under section 20A of the PDA.

8.3.4.

EASEMENTS GRANTED UNDER OTHER ACTS In addition to express and implied easements as well as easement created by common law, there are other types of statutory easements that are specifically created by written law. A number of the more common types of easements handled within DoL are set out below.

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Easements

8.3.4.1.

Chapter 8

PETROLEUM PIPELINES ACT 1969 The construction and installation of petroleum pipelines in Western Australia is administered by the Minister for Mines under the Petroleum Pipelines Act 1969 (“the PP Act”). Under the PP Act, a person may, on application to the Minister for Mines, apply for a licence for the construction and operation of a pipeline. Provided the prospective licensee can obtain access to land upon which to construct, that licence is granted to a particular person subject to whatever conditions the Minister thinks fit and is specified in the licence (Section 12 of the PP Act). The licence may be renewed, varied or surrendered as to the whole or part of that pipeline. Any renewal, variation or surrender is subject to the approval of the Minister as is any transfer of the licence. Once a licence has been granted, the licensee may agree with the owners of any land over which the pipeline is to be constructed, for the purchase or other acquisition of any right, interest or easement in or upon the land. There are various ways that easements can be created under this Act. For example, section 16 of the PP Act empowers the Governor, on recommendation of the Minister for Lands, to grant a licensee an easement over un-alienated Crown land to construct the pipeline as specified in the licensee’s licence and to operate, inspect, maintain and repair that pipeline. A public authority as referred to under that Act may as agreed with the licensee and with the determination of the Governor, grant an easement under sections 17 and 18 of the PP Act. Easements for the purposes of or incidental to the construction or operation of a pipeline can also be taken by the Minister administering the PP Act under Part 9 of the LAA where the Minister is satisfied that the licensee cannot acquire the easement or land by agreement with the owner: Section 19 of the PP Act. Where an easement is acquired or taken over any land pursuant to the PP Act, an easement document with a description of the easement and a notification that it has been so taken, together with a plan showing the location of the easement over that land is sent by the licensee to the Registrar of Titles under the TLA. The Registrar will then cause a record of the notification of the easement to be endorsed in the Register (see section 19(4) of the PP Act). Where the licence is transferred to another licensee, and registered with the Minister for Mines under section 44 of the PP Act, the Minister must notify the relevant registration authority in writing, either the Registrar of Titles or the Registrar of Deeds (section 20(5)(a) of that Act). On receipt of that notification, the Registrar shall duly record that notification on the Register that the easement has been transferred to the registered licence holder under the PP Act and, by force of that Act, the easement will then vest in the new licensee (see section 20(5)(b) of that Act). The usual process to effect the above transfer is as follows: 

By letter the Minister responsible for the PP Act notifies the Registrar of the transfer and advises that the licensees have been asked to prepare an appropriate Notification document for lodgement with the Registrar.



The Notification document should be prepared on a blank instrument Form B2 by either the Minister responsible for the PP Act or the licensee and signed by the Minister responsible for the PP Act.

That instrument sets out the notification of the transfer of easements showing the former licensees and the new registered holders of the licence and requests that the Registrar of Titles “records” the transfers of licences for those easements listed in that instrument against all the relevant land descriptions.

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The endorsement on the relevant titles is not shown as a transfer of an easement and is not a registration for the purposes of the TLA. Instead, the endorsement is recorded and should be shown as follows: “Notification [dealing no for notification form B2] pursuant to section 20(5) of the Petroleum Pipelines Act 1969 the Grantees of Easement [original dealing no for petroleum pipeline easement] are now [the new transferees of the registered licence] Lodged [date of lodgement and time of lodgement] (Dup C/T not produced).” The recording of the notification is not registration for the purposes of the TLA, but a recording for the purposes of the PP Act. The effectiveness of the transfer of that easement is provided by the approval of the Minister responsible for the PP Act and the registration of the instrument of transfer of that licence in the Register of Licences maintained by the Department of Industry and Resources (DOIR) under section 44(10) of the PP Act. It is not effected by registration under the TLA. As such, the duplicate titles (in the case of fee simple land) need not be produced and consent of existing encumbrances need not be obtained. The endorsement of the notification lodged by the DOIR is to be entered into the Register maintained by the Registrar of Titles without reference to existing encumbrances or even an absolute caveat. 8.3.4.2.

CMS/APT (PARMELIA) EASEMENTS UNDER THE PETROLEUM PIPELINES ACT 1969 In the 1960’s easements were granted under the PP Act over freehold and Crown lands to a consortium of oil companies represented by West Australian Natural Gas Pty Limited (WANG). The consortium’s pipeline (Parmelia) and easements were sold to CMS Gas Transmissions of Australia (CMS) in 1997. The Parmelia Pipeline was then sold in 2004 to Australian Pipelines Ltd (APA), the responsible entity for the Australian Pipeline Trust (APT). The standard easement granted by the State over Crown land to CMS under the PPA (“Standard Form Easement”) contains an indemnity clause which protects the Crown against injury arising out of the presence of the pipeline (for example, a rupture injuring or killing members of the public). This indemnity clause is more preferable to the limited form of indemnity negotiated between the pipeline owners and private landowners. Whenever land the subject of any CMS/APT easement or any encumbrance is revested in the Crown, the easement and, in a majority of cases, any other encumbrances, must be removed before the land is revested in the Crown. While the pipeline owners or landowners, as a matter of policy did not generally accept this, the State is entitled to the same level of protection against claims for damages as is provided in the standard easement over Crown land. As a matter of policy principles, including the following, should be considered where parties are initiating a change to land tenure affected by a CMS/APT easement: 

Parties who initiate the change in land tenure must negotiate with the pipeline owner toward 

achieving a surrender of the pipeline owner’s existing easement to allow the land to be revested in the Crown;



replacing the easement with a Standard Form Easement containing the requisite indemnity clause that adequately protects the Crown against injuries arising out of the presence of the pipeline;

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

8.3.4.3.

a suitable payment by the parties to pipeline owner of an adequate level of compensation for the change in tenure.



Where the parties reach agreement and a new survey plan is required, the new easement can be created on a plan as a sole easement document. However, this process is subject to Policy in relation to recovery from the pipeline owner of market value compensation from the developer and imposition of full terms of the standard “Crown easement” document.



Where agreement cannot be reached, DoL will consider taking the land affected by the easement, subject to the initiating party indemnifying DoL against all costs and claims.



Where formal taking under Part 9 of the LAA is set in motion, the pipeline owner will be provided with an opportunity to claim compensation and a standard “Crown” easement will be offered as partial compensation under section 255 of the LAA.



Compensation will be assessed in accordance with Part 10 of the LAA on a case-bycase basis, where Taking under Part 9 of the LAA becomes necessary. Otherwise, compensation may be negotiated between the pipeline owner and the developer, with DoL issuing an easement when agreement has been reached.

DAMPIER TO BUNBURY PIPELINE ACT 1997 Easements that extend over Crown land in the Dampier to Bunbury Natural Gas Pipeline (DBNGP) corridor created under the Dampier to Bunbury Pipeline Act 1997 (“the Act”) will not be granted where it can reasonably be expected to materially interfere with the exercise of existing or future rights of the DBNGP Land Access Minister for the purpose of having, constructing or operating any pipeline for transporting gas on the DBNGP corridor. However, reference to the Act in this chapter of the manual is necessary to clarify the effect of the rights and interests within the DBNGP corridor and the effect it has on existing easements or easements created within this corridor. The Act, proclaimed in 1998, provides for the disposal of the gas pipeline owned by the Gas Corporation (to Epic Energy) and defines the assignment of associated rights within the DBNGP corridor created by the Act and the requirements for the management of the corridor. It also establishes the role and function of the DBNGP Land Access Minister who controls the use and access to the DBNGP corridor on behalf of the State. The DBNGP corridor is currently an area of land, approximately 1530km long, that comprises the Dampier to Bunbury Natural Gas Pipeline. It starts from the Burrup Peninsula, near the town of Dampier and presently ends at Clifton Road, near the City of Bunbury. The DBNGP corridor also includes land for: 

twelve gas pipeline laterals including Carnarvon, Worsley, Pinjarra and several laterals to industry within the Kwinana area;



ten compressor stations, spread at intervals approximately 140 kilometres along the main line;



41 meter stations;



157 main line valves;



pipeline control facilities with Supervisory Control and Data Acquisition (SCADA) system and a microwave communication system;



Cathodic protection sites; and

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

defined accessways to the pipeline.

When the Western Australian Government sold the gas pipeline to Epic Energy, the State retained the management of the land. The management role is to ensure that the safety and integrity of the pipeline situated in this strategic piece of land is managed by the State and that all users of the DBNGP corridor are dealt with in a fair and equitable manner. Easements by service authorities and any other person across the DBNGP corridor will not be accepted as they are considered to be inconsistent with the rights of the DBNGP Land Access Minister. Where any person wants to have rights over the DBNGP corridor, the DBNGP Land Access Minister may consent to the grant of such rights under section 41 of the DBNGP Act. Land in the DBNGP corridor is noted on SmartPlan and shown endorsed in the Second Schedule of a title for the land. The endorsement is as follows: “Portion of the land as contained in Land Administration Plan xxxx is land within the DBNGP corridor pursuant to the Dampier to Bunbury Pipeline Act 1997.” 8.3.4.4.

PLANNING AND DEVELOPMENT ACT 2005 Easements in gross can be created on plans of subdivision of freehold land under section 167 of the PDA in favour of any of the following bodies: 

Local Government;



Water Corporation;



Gas Corporation; and



Electricity Corporation.

The above easements are created at the time new titles for the land the subject of the plan are registered under the TLA. No consent is required from any mortgagee or other encumbrancer and the easements will be shown on the new titles created and registered for each of the separate lots shown on the plan of subdivision. Where such easements are later no longer required or need to be modified, they can be amended or removed by application of the grantee to vary or extinguish the easement. See Paragraph 7.2.6 of the Land Titles Registration Practice Manual. 8.3.4.5.

TRANSFER OF LAND ACT 1893 Easements can also be created on plans of subdivision under Part IVA of the TLA. Under this Part, it is possible for a proprietor of land the subject of a plan, a public authority or Local Government to create an easement even though the land burdened by the easement has the same proprietor as the land benefited by the easement. Further information relating to the creation of easements under Part IVA of the TLA can be found in Paragraph 7.1.8 of the Land Titles Registration Practice Manual.

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8.3.5.

Chapter 8

SERVICE EASEMENTS OVER ROADS Public utility services are usually provided for within and under roads in this State. Usually easements are not required as the service providers are adequately protected by their own legislation in relation to issues of access and maintenance. As a matter of principle, easements should only be registered within a road where it is considered essential for information management of significant assets. In a majority of cases, easements for public utility services are generally created under section 167 of the PDA on the plan of subdivision of freehold land. Under certain circumstances, easement documents may be required over land that is affected by multiple services. In these cases, no easement document should be created unless all affected service agencies are incorporated in the easement document. When easements for services are approved over portions of roads, CLTs will be created and registered to enable the easement to be shown. As a matter of Government policy, 

where a service provider requests an easement over a road, the Minister has discretion to determine which land parcels the easement will be granted over. Easements for services within roads are not necessary where the service agency has statutory powers. The Minister may decline to grant an easement over an area of road for good planning and policy reasons.



only one easement document will be prepared for one service provider. However, the easement document must provide that other service authorities will not be excluded from accessing the same area if they also need to install and/or maintain facilities.



if an easement document is necessary over roads, arrangements must be made to create a deposited plan for the road to allow the registration of the easement. This will involve the Minister (through its delegate at DoL) applying for the creation and registration of separate Crown titles for each portion of the road affected by the easement.

A consideration based on distance may be charged for pipelines. However, that payment is a one-off charge designed to cover the cost of preparing such easements. Where the pipeline conveys a commercial product, such as gas or petroleum, which generates revenue and therefore derives a profit from use of Crown land, it may also be appropriate to charge an annual rental. Considerations may also include an amount for the preparation of a plan or for the request to present a plan for the road. Wherever revenue is to be derived from a facility contained within an easement over Crown land, provided there is a consistent and equitable application, consideration should be given to the charging of an annual rental commensurate with the income derived from that facility. This is consistent with the granting of leases over Crown land. Where easements are proposed to be created by the Minister under the LAA in relation to highly commercial operations, careful negotiations should be carried out involving relevant DoL and other agency staff. Legal assistance may also be appropriate.

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8.4.

HOW TO CREATE EASEMENTS OVER CROWN LAND

8.4.1.

GENERAL To a large extent, the methods for creation of express easements over Crown land are similar to the methods for creation of easements over fee simple land. Paragraph 7.1.4 of the Land Titles Registration Practice Manual sets out the five basic methods for the creation of easements over freehold land. Four of those methods will apply to Crown land and are repeated here. Express easements over Crown land can be created as follows:



by the registration of a Deed of Grant by the Minister for Lands under the LAA prepared and lodged expressly for the purpose of creating the easement;



by granting to or reserving from the land the subject of a registered Transfer form, an easement embodied in and created by that Transfer;



In the case of subdivision of Crown land for sale under Section 74, by the approval of a deposited plan containing an easement created pursuant to section 167 of the PDA; and



by notation on deposited plans of subdivision under Part IVA of the TLA (only where a CLT or QCLT has been or may be created for that parcel of Crown land).

The fifth method to create easements over freehold land that can be used relates to notation on survey-strata plans under section 5D of the Strata Titles Act 1985. Strata lots cannot be created over Crown land. The definition of land under section 3(1) of the Strata Titles Act 1985 specifically provides that land means “land that is under the operation of the Transfer of Land Act 1893 and held by the registered proprietor of the land in fee simple”. Further information on the process adopted for each of the above 4 methods of creating express easements can be obtained from Paragraphs 7.1.5, 7.1.6, 7.1.7 and 7.1.8 of the Land Titles Registration Practice Manual. It is important to remember to read each of these paragraphs when preparing an express easement of the types referred to above. It is important to note that when creating easements over Crown land, there should, with the exception of easements in gross granted to a particular grantee, be a dominant and servient tenement and a different grantor and grantee. However, section 147 of the LAA allows for easements in gross over Crown land. Where all the land is in the name of the State of Western Australia and an easement is proposed to be granted across such land, such easements can be created by grant under Part 8 of the LAA, or be created under Part IVA of the TLA (by virtue of section 136H of that Act). Except in relation to easements created by grant under Part 8 of the LAA, the consent of the Minister for Lands under section 18 of the LAA should be obtained, where applicable, to all other easements over Crown land. For further information on the requirements for the approval of the Minister for Lands, see Chapter 2 (Paragraph 2.9) of this manual. While this has been set out in the Land Titles Registration Practice Manual, it is important to remember that encumbrances etc. shown in the section of the title deed titled “Limitations, Interests, Encumbrances and Notifications” must give their unqualified consent to the easement. For example, a mortgagee of the servient tenement should be asked to given an unqualified consent to the easement itself, and not to the transaction for the creation of the easement (for example, an easement required before a PAW is sold to an adjoining owner by way of a conveyance and amalgamation order). With such consent, the easement would survive the exercise of the mortgagee’s power of sale.

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Absolute caveats, writs and warrants will prevent the registration of an easement. Also, a prior registered easement which contains provisions preventing the use of the land in the manner set out in the new easement will also prevent the registration of a subsequent easement unless it can be clearly established that the rights of both easements are not inconsistent with each other. Section 65 of the TLA provides for the creation of easements under Part IVA of the TLA by way of a short form set of easement conditions. The conditions relating to short form easements are prescribed in Schedule 9A of the TLA and they can be created on a plan of subdivision using the fourth method mentioned above. The types of short form easements that can be created under Schedule 9A are as follows:



an easement for a right of footway



an easement for water supply purposes



an easement for drainage purposes



an easement for gas supply purposes



an easement for the transmission of electricity by overhead cable



an easement for the transmission of electricity by underground cable



an easement for the transmission of television signals by underground cable



party wall rights



an easement for eaves and gutters



an easement for sewerage purposes



an easement for motor vehicle parking

Where there are no other conditions other than those already set out in the conditions in Schedule 9A of the TLA, there is no requirement to lodge an instrument with the plan. Schedule 9 of the TLA also provides for a short form for a right of carriageway that can be created under section 136C of the TLA (see section 65(2) of the TLA). An easement created under section 136C of the TLA cannot burden land outside the plan but may benefit land outside the plan. Easements in gross under section 136C of the TLA can only be created in favour of a Local Government or a public authority, see section 136(3) of the TLA. Such easements cannot be created in favour of “private corporation” such as Alinta Gas, Water Corporation, etc.

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8.4.2.

Easements

EASEMENTS OVER LAND BEING SOLD IN FEE SIMPLE. Parties acquiring the fee simple of land, for example, by conditional purchase lease under section 80 of the LAA are empowered by section 149 to grant an easement over the relevant land. The following principles apply: 

the consent of the Minister for Lands is required before an easement is granted;



the Crown must be indemnified against claims for damages or injury arising from use of easements granted over Crown land up to the point of freehold issuing. Public liability insurance for high risk/high use situations (for example, gas pipelines within residential areas) should also be provided by the grantee;



in the event that the freeholding lease or fee simple option is forfeited the easement also terminates. Grantees must be made aware of this provision at time of easement granting.



Where Crown land being amalgamated with adjoining freehold is subject to an easement, the consent of any mortgagee of that freehold is required to the amalgamation (as the freehold also becomes subject to the easement).

Should the freeholding lease or fee simple option be forfeited, notice should be given to both the easement grantee and Registrar of Titles to terminate the easement. If no replacement easement is to issue, the grantee should be directed to remove any improvements. To avoid reinstatement procedures, every care should be taken to ensure no other option, other than forfeiture, is possible. Where a major facility is protected by the easement, the prospective grantee should be advised of the lack of security in the event of forfeiture. An easement under the LAA may be offered.

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Chapter 8

EASEMENTS OVER CLASS A RESERVES Section 44 of the LAA requires that any proposal to grant an easement over a Class A reserve should be: 

advertised in a State-wide newspaper;



no sooner than 30 days after advertisement, tabled in both Houses of Parliament.

Easements over Class A reserves should be avoided, wherever possible. Use of existing roads or other ‘corridors’ through such reserves is to be encouraged. Where it is necessary to grant an easement through an A Class Reserve, the easement and the services it protects should constitute minimal interference with the reserve’s values and use and enjoyment by the public. Where after careful consideration it has been agreed that an easement should be created over a Class A Reserve, the Regional and Metro Services Division is to arrange preparation and publication of newspaper advertisement 30 days prior to issuing or granting approval to an easement through a Class A Reserve. Notice for tabling in Parliament may be prepared at the same time. Newspaper advertisements must detail reason, purpose, extent and grantee of the proposed easement. Advertisement must also occur 30 days before action/approval to ensure that easement occurs. Managers of the Regional and Metro Services Division should ensure that any high-risk easement (for example, gas pipeline) through a Recreation or high public use reserve makes comprehensive provisions to safeguard users against danger (for example, encasing pipe in concrete) and the agreed Crown indemnity clause is used. An LAA Easement cannot be granted over CALM Act Reserves for purposes inconsistent with the CALM Act. (Note however, that the LAA may be amended to enable easements to be granted over CALM Act land for any purpose). Where a Class A reserve is the subject of conditional tenure under section 75 of the LAA, and the landowner proposes to grant an easement using his powers under section 148 of the LAA, Registration Services should not accept such easement without first ensuring that 30 days’ notice of intent has been published in the newspaper and approval on behalf of the Minister has been granted after tabling in Parliament.

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8.4.4.

Easements

FINITE TERM EASEMENTS Most easements do not have finite terms. However easements granted under Part 8 of the LAA may be given definite terms. Easements granted for facilities which will have a limited life may have finite terms. Easements granted to a person in the capacity of lessee may also be granted for a finite time. Finite terms may also be considered for services where: 

the service provider is a private corporation; or



there is potential for the service provider to be commercialised, or



the potential returns to the State from the subject land are high, having regard for national and international practice.

Where easements specify a term, it must be clear that when the term expires. On expiry easements must be surrendered by lodgement of a surrender document or, alternatively the Registrar of Titles has agreed to endorse the term on the titles. Where an easement is granted over Crown land for a facility connected to a commercial operation (such as a Conveyor Belt) or where it carries a commercial product (such as a gas pipeline), an annual charge commensurate with the value of the commercial operation should be considered. Finite Term and Annual Charge easements should, however be used sparingly for short term/high value uses. Terms may vary but finite term easements should not be granted if disposal of the relevant land in the near future is anticipated. Where a decision is taken to grant a finite term easement, the easement agreement needs to include a clause specifically stating that no equitable rights will arise at the expiry of the easement.

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Chapter 8

PRICING OF EASEMENTS Managers within the Regional and Metro Services Division are responsible for ensuring consistent application of pricing policies for easements across the State. Substantial variations from approved guidelines should be referred to senior Managers/Directors or the Minister. Normal pricing policy requires that the consideration being charged for easements is market value, with valuations being sought from Landgate - VS, and approved on behalf of the Minister by the relevant Manager within the Regional and Metro Services. Costs may be debited to the easement grantee. Under some circumstances, a nil or nominal charge may be justified, with or without document preparation, survey and registration fees being charged. Examples where this occurs can be when DoL initiates an easement where services already exist, there are no third parties to pass the charges onto, and the service provider will not be required to bear those costs. DoL will meet these costs. However, Managers within the Regional and Metro Services Division need to exercise a high level of care in this connection. In low value rural areas, and for low value services or other uses requiring easements, Managers within the Regional and Metro Services Division may determine the easement charge without reference to Landgate - VS where there is adequate information to indicate current market values of affected land. Easements for community use (non-commercial) should bear a nominal charge. The valuer’s valuation should be recorded as appropriate, to show the State’s subsidy. However, where the easement is required for high commercial value services (for example, telecommunications, gas), valuations must be sought from Landgate - VS (regardless of the value of the land). Due regard for forward planning impacts and impact/benefit of easement on land value should be considered when determining charge. The valuer should be advised of costs, fees and impacts when valuations are sought. Where land being sold is affected by an easement, the purchaser should be given an itemised account showing the components that make up the total price of the land (for accrual accounting purposes). Where a State Agreement easement is being negotiated, DoL should consult the Department of Industry and Resources (DOIR) to ensure parties are aware of the DoL pricing policy. A standard administration cost has been set, to cover DoL’s costs in establishing the easement. This represents the minimum nominal cost for an easement (except in those cases where a nil cost is justified – see above). This was set at $500 in 2001, and is to be reviewed annually to reflect real costs of drafting and documentation preparation.

8.4.6.

ANNUAL RENT EASEMENTS Under normal circumstances, easement consideration is paid once only, up-front. However, there may be situations, which warrant an annual rent. Where a substantial commercial benefit could be gained (for example, an easement is over Crown land for components such as conveyor belts or gas pipelines that are associated with a commercial operation), an appropriate commercial rental evaluation may be sought from the Valuer General. Where this option is chosen, provision should be made in the easement agreement to allow regular review and amendment of the rental. Provision for appeal and arbitration on rent increases may also be necessary.

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8.5.

Easements

REMOVAL OF CROWN EASEMENTS An easement granted over Crown land can be removed by any of the following methods:

8.5.1.



by surrender;



by Ministerial Order;



by merger;



by Taking Order; and



by Order of the Registrar of Titles.

BY SURRENDER The party having the benefit of an easement (the grantee of an easement under the LAA) may surrender the easement to the Crown. The form to be used to surrender a Crown easement is a blank instrument form (B2). It is a requirement that the State Revenue Department (Stamp Duties Division) assess the surrender for duty. Any person with an encumbrance over the dominant tenement should be asked to consent to the surrender, as he or she is losing something beneficial to his or her security. The surrender document should be lodged with the Registrar of Titles for registration to effect the removal of the easement. Following the surrender of an easement, there is no longer any requirement for the former owner of the dominant tenement to apply for a new certificate of title to remove the easement from the land description. Under SmartRegister, the easement is endorsed in the Second Schedule of the title for the land and will be removed for both the dominant and servient tenement by the registration of the Surrender document. Refer Paragraph 7.2.1 of the Land Titles Registration Practice Manual.

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8.5.2.

Chapter 8

BY MINISTERIAL ORDER Under section 144(3), 145(1) and 150(5) of the LAA, the Minister for Lands has power in certain circumstances (set out below) to cancel easements over Crown land by Ministerial Order. An easement may be cancelled (or varied) by Ministerial Order made under section 144(3) of the LAA, on application of the grantee and with consent of any management body or lessee of the Crown land. 

To cancel the easement under section 145(1) of the LAA, the Minister must first serve a notice in the approved form on the grantee of that easement and on the lessee or management body of that parcel of land. Under section 145 of the LAA, the Minister may cancel an easement for a number of reasons, not limited to, but including the following examples: the easement has been used for a purpose other than the purpose for which it was issued;



the easement has been used contrary to any rights, powers or privileges pertaining to the easement;



default has occurred in complying with any condition, or in paying any consideration, to which the easement is subject; or



the grantee requests the Minister in writing to cancel the easement.

If the grantee does not lodge an appeal against the proposed cancellation, or if such appeal is dismissed, then the Minister may cancel the easement by Ministerial Order. An easement may also be cancelled under section 150 of the LAA when any management body, lessee or person who has an interest or right in the Crown land over which there is an easement request in writing that the Minister for Lands cancel an easement because the easement no longer serves any purpose. The written request to the Minister for Lands, together with the relevant information relating to that request should be directed to the relevant regional Manager within the Regional and Metro Services Division. On receipt of such a request, if the Minister intends to cancel the easement, then under section 150(2) of the LAA the Minister must first serve a notice of that intention to cancel on: 

the grantee of that easement under section 144 of the LAA or the person in whose favour the easement was created; and



any person with an interest in the dominant tenement benefiting from the easement; and



the Registrar of Titles.

Then if the Minister for Lands is satisfied that cancellation is appropriate because the easement no longer serves any purpose, cancellation is undertaken by Ministerial Order under section 150(5) of the LAA. The Minister is required to advise every person who received a notice of the intention to cancel that the easement has been cancelled.

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8.5.3.

Easements

BY MERGER At common law, when the dominant and servient tenements of that easement come into a common ownership, an easement affecting those lands is merged and extinguished. LANDGATE practice, however, provides that a merger will not be endorsed on the relevant title for the dominant and servient tenements without a request in writing made by the common owner of both pieces of land. Such request may be written on the Transfer form itself by which common ownership is achieved. If the common ownership is not achieved at the same time by a Transfer (or Transfers registered at the same time) the common owner must, on a form A6 quoting both the original land and the land newly acquired by Transfer, request that the easement be merged and extinguished. Statutory easements must be removed by the provisions of that particular Act. For example, easements created under Part IVA of the TLA can only be removed in accordance with section 136J of the TLA.

8.5.4.

BY TAKING ORDER Crown easements may also be removed by the taking of the easement interest or the servient tenement for the purpose of a public work under Part 9 of the LAA. All encumbrances and interests attached to that easement interest the subject of the Taking Order is removed on registration (unless specifically preserved). The rights of the owner of the dominant tenement will, on registration of the Taking Order, be converted for a right to compensation under Part 10 of the LAA.

8.5.5.

BY ORDER OF THE REGISTRAR OF TITLES The grantee of an easement created by Section 167 of the PDA may apply by Application (form A5), to vary or extinguish the easement. The first panel of the Application form should contain the lot or location affected by the easement. The second panel should be the grantee and the next panel should contain words requesting that the easement be varied or extinguished. The original signed copy of the written consent of all persons with an interest in the land must be filed with the Application. Where the Registrar is satisfied that all relevant consents have been supplied, the Registrar may order that the easement be removed from the title or varied by endorsement. Unlike easements over freehold land, easements granted under section 144 of the LAA cannot be removed by Court order (see section 129C of the TLA).

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CROWN LAND ADMINISTRATION AND REGISTRATION PRACTICE MANUAL

CHAPTER 09 COMPULSORY ACQUISITION OF INTERESTS IN LAND

TABLE OF CONTENTS 9.

COMPULSORY ACQUISITION OF INTERESTS IN LAND

9-1

9.1.

INTRODUCTION

9-1

9.1.1. GENERAL 9-1 9.1.2. SINGLE REGISTRATION SYSTEM

9-3

9.1.3. WHO MAY TAKE LAND AND INTERESTS IN LAND?

9-3

9.1.4. HOW MAY LAND AND INTERESTS IN LAND BE TAKEN?

9-4

9.1.5. WHAT COMPRISES LAND AND INTERESTS IN LAND FOR THE PURPOSE OF A TAKING?

9-4

9.2.

NATIVE TITLE ISSUES

9-8

9.2.1. GENERAL 9-8 9.2.2. FUTURE ACTS REGIME

9.3.

9-8

DELEGATIONS

9-9

9.3.1. GENERAL 9-9

9.4.

ACQUISITION BY AGREEMENT

9-10

9.4.1. GENERAL 9-10 9.4.2. CONSIDERATIONS TO BE MADE BEFORE ACQUIRING LAND

9-11

9.4.3. SECTION 168 STATEMENT OF PROCEDURES

9-11

9.4.4. CHECKLIST OF MATTERS BEFORE INSTRUCTING DOL TO ACQUIRE LAND

9-12

9.4.5. SURVEY REQUIREMENTS FOR ACQUIRING LAND BY AGREEMENT

9-12

9.5.

TAKING WITHOUT AGREEMENT

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9.5.1. GENERAL 9-13 9.5.2. SECTION 165 ORDER TO CONFER INTERESTS UNDER WRITTEN LAW

9.6.

9-14

NOTICE OF INTENTION TO TAKE

9-15

9.6.1. WHAT IS A NOTICE OF INTENTION TO TAKE?

9-15

9.6.2. EFFECT OF A NOTICE OF INTENTION TO TAKE

9-17

9.6.3. CONTENT AND TYPES OF NOTICES OF INTENTION TO TAKE

9-20

9.6.4. WHEN IS A NOTICE OF INTENTION TO TAKE NOT REQUIRED?

9-21

9.6.5. VARIATION OF NOTICES OF INTENTION TO TAKE

9-21

9.6.6. INCREASED PERIOD OF CURRENCY OF NOTICE OF INTENTION TO TAKE

9-22

9.6.7. CANCELLATION OF NOTICE OF INTENTION TO TAKE

9-22

9.7.

NOTICE OF ENTRY

9-23

9.7.1. GENERAL 9-23 9.7.2. ENTRY FOR FEASIBILITY STUDIES

9-24

9.7.3. ENTRY FOR RAILWAY CONSTRUCTION

9-24

9.7.4. ENTRY FOR INSPECTION OR ASSESSMENT OF COMPENSATION FOR SURVEYS

9-25

9.7.5. ENTRY FOR TEMPORARY OCCUPATION

9-25

9.7.6. ENTRY FOR WORK TO COMMENCE WITHOUT PRIOR TAKING ORDER

9-26

9.8.

TAKING ORDER

9-27

9.8.1. WHAT IS A TAKING ORDER?

9-27

9.8.2. EFFECT OF A TAKING ORDER

9-28

9.8.3. CONTENT AND TYPES OF TAKING ORDER

9-29

9.8.4. CONSISTENCY BETWEEN TAKING ORDER AND NOTICE OF INTENTION TO TAKE

9-29

9.8.5. PROCEDURES FOR LODGING A TAKING ORDER

9-31

9.8.6. AMENDMENT OF TAKING ORDER

9-33

9.8.7. ANNULMENT OF TAKING ORDER

9-33

9.9.

DESIGNATION

9-34

9.9.1. WHAT IS A DESIGNATION?

9-34

9.9.2. EFFECT OF A DESIGNATION

9-35

9.9.3. AMENDMENT OF A DESIGNATION

9-35

9.9.4. CANCELLATION OF A DESIGNATION

9-35

9.10.

SELLING ACQUIRED LAND

9-36

9.10.1. GENERAL 9-36 9.10.2. FORMER OWNER’S RIGHTS

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9.10.3. EXCEPTIONS TO THE RULE

9-37

9.10.4. DEALING WITH FORMER OWNERS’ RIGHTS

9-37

9.10.5. SALES OF ACQUIRED LAND

9-39

9.10.6. PROCEEDS OF SALE

9-39

9.11.

LEASING ACQUIRED LAND

9-40

9.11.1. GENERAL 9-40 9.11.2. DESIGNATED LAND

9-40

9.11.3. PROCEDURES

9-40

9.11.4. RENTAL 9-40

9.12.

EASEMENTS

9-43

9.12.1. GENERAL 9-43 9.12.2. PUBLIC ACCESS EASEMENTS

9-44

9.12.3. GRANTS OF EASEMENT

9-45

9.13.

TRANSITIONALS

9-46

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9.

COMPULSORY ACQUISITION OF INTERESTS IN LAND

9.1.

INTRODUCTION

9.1.1.

GENERAL The Western Australian State Government, local governments and a variety of statutory authorities have been vested, by legislation, with power to acquire land. The land may be acquired in one of two ways: 

By agreement with the owner/s; or



By taking without the agreement of the owner.

In the latter case, the land is compulsorily acquired in accordance with procedures set out in written law. The power to compulsorily acquire land in this State was contained in the Public Works Act 1902, later known as the Land Acquisition and Public Works Act 1902, and now known as the Public Works Act 1902 again. The provisions dealing with the compulsory acquisition of land and compensation have been incorporated, with minor changes, into Parts 9 and 10 of the Land Administration Act 1997 (LAA). The LAA requires that where the Minister or a delegate for the “acquiring authority” is directly negotiating the acquisition of land for a public work, the landowner must be informed of the procedures for: 

the taking of land and interests in land



payment of purchase moneys



compensation for land taken



rights of appeal, and



rights relating to the future transactions for interests in land taken by agreement or compulsorily taken.

To enable customers and other persons using the provisions of Parts 9 and 10 of the LAA, there is a Definitions section at the beginning of Part 9 of the LAA that applies specifically to Parts 9 and 10 of that Act. The definitions contained in Part 9 are wider than those set out in section 3 of the LAA and should be considered when dealing with these two Parts of the LAA.

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9.1.1.1.

Compulsory Acquisition of Interests in Land

WHAT IS A PUBLIC WORK? All land acquired under Parts 9 and 10 must be acquired for a public work. A “public work” is defined in section 2 of the Public Works Act 1902 and means and includes – (1) Every work which the Crown, or the Governor, or the Government of Western Australia, or any Minister of the Crown, or any local authority is authorized to undertake under this or any other Act. (2) Any railway authorized by special Act or any work whatsoever authorized by any Act. (3) Tramways. (4) Any works for or in connection with the supply of water to, or for or in connection with the sewerage of, any city, town, or district, including all reticulations. (5) Buildings for the occupation of either or both of the Houses of Parliament or for public offices. (6) Hospitals within the meaning given to that term by section 2 of the Hospitals and Health Services Act 1927, medical clinics, hostels and institutions including residences for staff, court-houses, gaols, watch-houses, lock-ups, police barracks, or quarters. (7) Observatory. (8) Public schools or any other schools authorized to be established wholly or in part at the public cost by any Act in force for the time being, universities, colleges, technical and other educational institutions, including residences or hostels for teachers or students, and play-grounds. (9) Public libraries, mechanics’ or miners’ institutes, agricultural halls, or schools of art. (10)

Wharves, ferries, piers, jetties and bridges.

(11) Parks or gardens or grounds for public recreation or places for bathing, and for the reclamation of land for or in connection therewith. (12)

Public cemeteries.

(13)

Public wells or works for the conservation of water.

(14) interest.

The protection and preservation of any cave or place of scientific or historical

(14A)

The protection and preservation of indigenous flora and fauna.

(15)

The establishment of public abattoirs.

(16) Harbours and ports, including the provision of storage, handling and wharfage areas and other facilities normally ancillary to the conduct of shipping operations, break-waters, leading marks, navigational aids, docks, slips, the alteration or improvement of channels, waterways and rivers, the protection of foreshores and banks, the provision of new channels and related works, including the landing and disposal of silt. (17) Quarries or works for procuring stone, gravel, earth, or any other material required for the construction of, or any purpose connected with any public work as aforesaid.

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(17A) The procuring from land (other than Crown Lands and public reserves) of timber, stone, gravel, earth and any other material required by or for the State for or in connection with the carrying on of any industrial or other undertaking or activity which is being carried on by or for the State under any law authorizing the same. (17B)

Buildings and structures required for fire brigade purposes.

(17C)

The establishment and the extension by the Governor of sites for towns.

(17D) stations.

The establishment and the extension by the Governor of agricultural research

(18) Drainage works in connection with any city, town, or district, and the improvement of rivers, watercourses, lakes, or inlets, including deepening, widening, straightening or otherwise altering, and disposal of silt. (19) Any building or structure of whatsoever kind which, in the opinion of the Governor, is necessary for any public purpose. (20)

Any road, stock route, viaduct, or canal.

(21)

Any work incidental to any of the aforesaid works.

(22)

Any land required for or in connection with any work as aforesaid.

(23)

Any survey in connection with any proposed public work.

In addition to the above, land and interests in land may also be taken where a written law enables the grant of any estate, interest, right, power or privilege in, over or in relation to the land – further details are set out in Paragraph 9.5.2.

9.1.2.

SINGLE REGISTRATION SYSTEM The LAA introduced a single registration system for all land in Western Australia. For acquisitions under Part 9 of the LAA, the conveyance is effected by a Ministerial Order, known as a Taking Order, and must be lodged and registered with the Registrar of Titles under the Transfer of Land Act 1893 (TLA). For more general information on the single registration system, see Chapter 2 of this manual.

9.1.3.

WHO MAY TAKE LAND AND INTERESTS IN LAND? Subject to the express powers set out in other legislation, all acquisition powers, with or without agreement, are vested in an acquiring authority. An acquiring authority is defined in section 151 of the LAA and means a person or body who has the legislative power under section 161 of the LAA to undertake, construct or provide any public work. Some examples where persons or statutory bodies have power to acquire interests in land under other written law include 

A local government (being a responsible authority as defined in the PDA) has the power to compulsorily acquire land for the purpose of a town planning scheme under section 13 of the PDA;



LandCorp has the power to compulsorily acquire land for specific purposes under section 20 of the Western Australian Land Authority Act 1992; and



Water Corporation has power to compulsorily acquire land under Part VII of the Water Agencies (Powers) Act 1984.

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9.1.4.

Compulsory Acquisition of Interests in Land

HOW MAY LAND AND INTERESTS IN LAND BE TAKEN? Where land and interests in land are not acquired by agreement, they may be taken compulsorily. Under the Land Acquisition and Public Works Act 1902, land was set apart, taken or resumed only on gazettal of a proclamation by the Governor through Executive Council. Under the LAA, land or interests in land are now “taken” upon the registration of a Taking Order made by the Minister for Lands and his or her duly authorised delegates (being an acquiring authority), and lodged with the Registrar of Titles for registration under the TLA. Upon registration of the Taking Order, the land or such interests in land specified in the Taking Order are converted into a claim for compensation. The processes for taking land and interests in land and compensating the holders of the land and interests are set out in Parts 9 and 10 of the LAA. The LAA also introduces a mechanism known as a designation, which is a method for endorsing the relevant land title with the public work purpose for which the land was taken. This mechanism is explained in more detail in Paragraph 9.9.

9.1.5.

WHAT COMPRISES LAND AND INTERESTS IN LAND FOR THE PURPOSE OF A TAKING? All types of land and interests in land, including native title rights and interests, can be taken for a public work. However, the procedures for taking are different for each types of land affected by a Taking Order. Where native title rights and interests are to be taken the requirements of the NTA must also be complied with. See Paragraph 9.2 for further details on the taking of native title rights and interests. Where the Taking Order refers to “the Land” to be taken, all land and interests affecting that land will be taken and all rights and interests affecting that land will be converted into a claim for compensation. Where the Taking Order only refers to a particular interest in the land, only that interest is taken. The same will apply to acquisitions by agreement under Part 9. Where agreement has been reached with an interest holder, only that interest can be taken and converted into a claim for compensation. All other rights and interests affecting the land for which no agreement has been reached cannot be extinguished without the service of a Notice of Intention to Take on all relevant parties and registration of a Taking Order.

9.1.5.1.

FREEHOLD LAND UNDER THE REGISTRATION OF DEEDS ACT Where land is held in fee simple under the Registration of Deeds Act 1856, the land may be taken provided a Memorial of the Taking Order (in the form required under the Registration of Deeds Act 1856) together with the Taking Order (in an approved form) is lodged with the Registrar of Titles. The Taking Order has the effect of bringing the taken Deeds Act land under the operation of the TLA.

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9.1.5.2.

Chapter 9

CROWN LAND Where land is Crown land, the land or an interest in the Crown land may be taken, but section 178(5) of the LAA requires the prior consent of the Minister for Lands under section 18 of the LAA, unless the statutory body effecting the taking has a specific delegation or an express statutory power which over-rides sections 178 (5) and 18. For further information on whether the prior consent of the Minister for Lands is required, see Chapter 2 (Paragraph 2.9) of this manual. Where Crown land is part of the Swan River Trust, is a Class A reserve, a State Forest, national park or has a conservation purpose, or any other reserve purpose or classification, that vesting, purpose or classification must be removed and the tenure of the land brought back to unallocated Crown land status before any portion of the land can be taken. Documentation to remove and bring back the status of Crown land should preferably be lodged before the Taking Order. In some circumstances it may be appropriate for a NOITT to issue over land covered by one of the categories subject to the notice clearly indicating that interests will not be taken until all other necessary statutory approvals have first been obtained. Fee simple interests in Crown land should not be taken through a taking process. Any acquiring authority proposing to take Crown land for a public work should note the following: 

only existing interests in Crown land can be taken;



the Crown’s radical title cannot be taken;



interests that do not already exist cannot be created through the taking process;



DoL’s pricing policies will apply to the acquisition of any fee simple interest required by an acquiring authority;



regardless of the ultimate tenure, the principles set out in paragraph 2.4.2.2 will apply to any taking and/or disposition of Crown land, with market value being payable to DoL where the land is to be used for the agency’s service delivery or operational purposes;



where the acquiring authority requires an interest in Crown land or a reserve or management order to be granted, the normal processes under the LAA should be used;



when Crown land is being taken from the management control of another Government agency, 100% of the land’s unimproved market value will be payable to DoL, with the original managing agency arranging with Treasury for appropriation of these transfer moneys; and



approval will not be given pursuant to section 18 of the LAA to a Taking Order purporting to convey a fee simple interest in that Crown land to the acquiring authority.

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9.1.5.3.

Compulsory Acquisition of Interests in Land

FREEHOLD LAND UNDER THE TLA Where land is freehold land registered under the TLA, the land may be taken following consultation with DoL to ensure that the taking is effected in accordance with State and Commonwealth Government policies and rulings affecting native title. Where the words “The Land” or “The estate in fee simple in the land and every registered and unregistered interest therein” is shown in the “Interest Taken” panel of a Taking Order (see Form 1049), the Registrar will interpret that it is the intention that the land is taken free of all encumbrances. If the words “Fee Simple” is shown in the “Interest Taken” panel of that form, the Registrar will interpret that it is the intention that only the fee simple interest is taken and the land will remain encumbered by any current encumbrances at the time of the taking. See Paragraph 9.1.5 for a clarification of what comprises land and interests in land for the purpose of the taking. See also Paragraph 9.4 for general information on taking by agreement under Part 9 of the LAA.

9.1.5.4.

FREEHOLD LAND UNDER THE STRATA TITLES ACT 1985 Where the land comprises a strata lot under the Strata Titles Act 1985, the processes for a taking will depend on whether or not the land is land within a strata lot or, is common property. Where land is within a strata lot, an amended survey of the strata lot affected must be lodged with the Taking Order. An amended survey is not required where the land comprises part of the common property. Surveyors should be advised of this requirement when submitting a survey of the area proposed to be taken. Where the land comprises part of the common property, the land description in the Taking Order should refer to the strata plan and all certificates of title affecting that strata plan.

9.1.5.5.

FREEHOLD LAND UNDER THE TLA HELD BY THE COMMONWEALTH GOVERNMENT Where land is held in fee simple by the Commonwealth of Australia, a Taking Order will not be accepted for registration as it is unlikely that the compulsory acquisition powers under the LAA apply to the Commonwealth Government (Commonwealth legislation prevails over State legislation). Where land or interests in land are required from the Commonwealth of Australia, they should be acquired by agreement and a transfer document lodged for registration. This may also apply in acquiring land or interests in land held by some of the Commonwealth statutory bodies. In this respect legal advice should be sought prior to proceeding with an action.

9.1.5.6.

LAND CONTAINED WITHIN THE DBNGP CORRIDOR Where land or interests in land are required and are contained within the DBNGP Corridor and affected by the Dampier to Bunbury Pipeline Act 1997, they cannot be taken under Parts 9 and 10 of the LAA unless all the DBNGP rights and interests are preserved in the Taking Order. Where removal of the DBGNP rights and interests may be required appropriate documentation from the DBGNP Land Access Minister will be required.

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9.1.5.7.

Chapter 9

LAND CONTAINED WITHIN THE FREIGHT CORRIDOR Based on the same principles as land contained within the DBNGP Corridor, land or interests in land that are required and are contained within the rail corridor defined in the Rail Freight System Act 2000 as “corridor land” cannot be taken under Parts 9 and 10 of the LAA unless all the Rail Corridor rights and interests are preserved in the Taking Order. Where removal of the Rail Corridor rights and interests may be required appropriate documentation from the Rail Corridor Land Access Minister will be required.

9.1.5.8.

LAND THE SUBJECT OF A REGISTRAR’S OR MINISTER’S CAVEAT Where land or interests in land are subject to a Registrar’s caveat (section 188(iii) of the TLA) or a Minister’s caveat (section 21 of the LAA), that caveat must be withdrawn before a Taking Order can be lodged.

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9.2.

NATIVE TITLE ISSUES

9.2.1.

GENERAL Parts 9 and 10 of the LAA empower an acquiring authority to take native title rights and interests. The NTA establishes procedures which include providing native title holders (and claimants if there has been no determination of native title) with procedural rights as if they held ordinary (freehold title) and in some instances additional rights such as the right to negotiate and the right to object and be consulted. The additional rights apply in different circumstances where the intention is to confer interests to another party (other than a Government party). Where a Crown land proposal is considered, the implications of the NTA must be assessed. If native title rights and interests have been determined or are likely to exist in relation to a parcel of Crown land and the proposal affects or is likely to affect any of those native title rights and interests, then one of the processes under the NTA future acts regime must be followed. In determining what future act process applies to a particular proposal where the process involves the taking of interests in land, LAA processes are combined with the appropriate requirements of Subdivisions M and P (Part 2, Division 3) of the NTA To meet the requirements of both the LAA and NTA, specific NOITT’s are used for particular circumstances.

9.2.2.

FUTURE ACTS REGIME The NTA sets out a regime for dealing with future acts over land and waters where native title has not been extinguished. The Western Australian State Government policy on native title outlines three key principles: 

A preference for agreement making rather than litigation;



Minimising the extinguishment or impairment of native title wherever possible; and



Ensuring that future acts are valid under the NTA.

Based on these principles, the focus will be on a seeking agreement to proposals with the option of taking interests being used where agreement cannot or is unlikely to be reached. It is important that any Crown land proposal is discussed at an early stage with DoL to ensure that the proposal is progressed in a manner consistent with the NTA and current State Government policies.

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Compulsory Acquisition of Interests in Land

9.3.

DELEGATIONS

9.3.1.

GENERAL

Chapter 9

Sections 159 and 160 of the LAA empowers the Minister for Lands and his or her delegates to delegate his or her powers and duties under Parts 9 and 10 of the LAA to various other Ministers and other officers of other state Departments and state Agencies. DoL officers should refer to the Policies, Procedures and Rulings Database for a list of the current delegations under the LAA to DoL officers.

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9.4.

ACQUISITION BY AGREEMENT

9.4.1.

GENERAL Land and interests in land may be acquired for a public work by agreement or without agreement. Section 168 of the LAA empowers an acquiring authority to enter into an agreement to purchase interests in land with the owner of that interest, without necessarily preparing, lodging and serving a Notice of Intention to Take in accordance with the LAA. This section can only be used to acquire land by agreement free from all interests and encumbrances where the written consent has been obtained from the registered proprietor, occupier and all registered interest and encumbrance holders. For the purposes of Parts 9 and 10 of the LAA, a proprietor is defined in section 151 to include a person with a registered interest in the land, and the holder of any native title rights and interests in the land, whether registered or not. To be able to acquire land by agreement under Part 9 of the LAA by agreement, the written consent must be obtained from each and every proprietor, occupier and native title claimant to the land. For example, where a Taking Order is proposed to be lodged following agreement made under section 168 of the LAA, the Taking Order can only be made in relation to the agreed interest (section 177(3) of the LAA). See Paragraph 9.1.5 under the heading of “Freehold Land under the TLA” to clarify the wording to be used when taking the land or only an interest in the land. The procedures contained in the NTA must also be followed. See Paragraph 9.2 for more information on the native title issues.

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9.4.2.

Chapter 9

CONSIDERATIONS TO BE MADE BEFORE ACQUIRING LAND Before an acquiring authority proceeds with a proposed acquisition of land, the following principles must be considered: 

The preferred site should be clearly identified. Where only a portion of a parcel of land is proposed to be acquired, subdivisional and planning issues will need to be considered. If part of a lot is proposed to be acquired, a survey of the required area must be made.



The site should be acceptable for the proposed purpose.



Funds must be immediately available and any additional costs involved, if a taking is required.



Consideration must be made as to whether or not there may be alternative sites available in the Government land portfolio. The Government Projects Office in Department of Housing and Works may be able to assist in this regard.



If not yet available, all costs must be taken into account for the provision of services, if any to the site. This will include considerations of water, power and legal rights of access to the site.



The zoning should be compatible or potentially compatible with the proposed use.



If the land is to be held by a body other than the Crown, that body must be a legal entity capable of holding land.



The preferred mode of acquisition is negotiation. Taking by compensation should be used only as a last resort after best endeavours to settle have been exhausted.

It is important that all Government agencies should check the Government Property Register and consult with the Government Projects Office in Department of Housing and Works before commencing any negotiation for the acquisition of any land to ensure an integrated land use approach is achieved and unnecessary resources are not wasted.

9.4.3.

SECTION 168 STATEMENT OF PROCEDURES Where land is proposed to be acquired by agreement for a public work under section 168 of the LAA, the acquiring authority must advise any person with whom negotiations are undertaken, of the following: 

procedures under Parts 9 and 10 of the LAA for the taking of land,



payment of the purchase money or compensation,



rights of appeal, and



any rights as to the future disposition on interests in land taken by agreement or compulsorily.

The above information must be set out in a statement in an approved form, (Form LAA1094) and must be handed to any person whose right or interest is proposed to be extinguished by the acquisition.

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9.4.4.

Compulsory Acquisition of Interests in Land

CHECKLIST OF MATTERS BEFORE INSTRUCTING DOL TO ACQUIRE LAND Where the acquisition is to be by negotiation and DoL is being instructed to undertake the process, the acquiring authority must:

9.4.5.



Indemnify DoL against all claims for compensation and associated costs, including the costs of notifying additional interest holders;



Provide proof of the agreement reached with all relevant interest holders;



Where the acquiring authority is a local government agency, obtain Council resolution;



Identify all parties that hold an interest or right in the land (including any mining or petroleum rights).

SURVEY REQUIREMENTS FOR ACQUIRING LAND BY AGREEMENT Where an acquiring authority has reached an agreement with the proprietors of the land or interests in land proposed to be acquired for a public work, the preparation of documentation and registration procedures are very similar to that for a normal subdivision of land. Where only part of the land is proposed to be acquired for the public work, a deposited plan must be prepared showing the land to be taken and full details of the remaining lots, all of which must be given a new parcel identifier. The Taking Order then acts like an application for subdivision. It is normal, in an acquisition by agreement, for the land or lots, to be transferred, by way of a Transfer document, to the acquiring authority, or, the State of Western Australia. A certificate of Crown land title must be created for the land acquired and transferred to the State of Western Australia. Where the land is freehold land, it is not possible to partially deal with land contained within a deposited plan. An Application for titles must include all the lots shown on the plan. See also Paragraph 9.1.5 under the heading of “Freehold land under the TLA” to clarify the wording to be used when taking the land or only an interest in the land.

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9.5.

TAKING WITHOUT AGREEMENT

9.5.1.

GENERAL Land and interests in land may be taken compulsorily, that is, without agreement, for a public work under the provisions of Part 9 of the LAA. A public work has already be defined and set out in Paragraph 9.1.1. For the purposes of the LAA, the power to take land for a public work is set out in section 161 of that Act. Only land or interests in land held by a person other than the Crown can be taken under the LAA. Where land or interests in land are proposed to be taken without agreement - that is compulsorily, a Notice of Intention to Take and a Taking Order must be prepared in an approved form, lodged with the Registrar of Titles and served on the relevant persons set out in the LAA. There are a number of exceptions when a NOITT is not required. For more information on these types of exceptions, see Paragraph 9.6.4. In all cases where land or interests in land is being required for a public work and native title rights or interests are affected, the strict requirements for service on parties and compliance with procedures under the NTA must also be followed. See Paragraph 9.2.1 for more information on the taking of land affected by native title rights and interests.

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9.5.2.

Compulsory Acquisition of Interests in Land

SECTION 165 ORDER TO CONFER INTERESTS UNDER WRITTEN LAW In addition to the types of public work set out in Paragraph 9.1.1, land and interests in land may also be taken where a written law enables the grant of any estate, interest, right, power or privilege in, over or in relation to the land. A taking of land or interests in land authorised under section 165 of the LAA is deemed, for the purposes of Part 9 and 10 of the LAA to be a taking for a public work and the purposes of the grant were the purposes of the public work. The power to authorise a taking for the purposes of conferring that land or interest to another person can only be exercised where the Minister is of the opinion that the grant of that land or interest confers an economic or social benefit on the State, relevant region or locality: section 165 of the LAA. A taking of this nature is only permitted where it is authorised by the Minister for Lands under section 165 of the LAA. That authorisation is a form of Ministerial Order as defined under the LAA and is effective upon registration. This authorisation has not been delegated by the Minister for Lands to any person. An Order under section 165 of the LAA should be lodged jointly with a NOITT and any documents lodged after a section 165 Order must show such Authorisation Order as an encumbrance. Any transaction affecting Crown land encumbered by a section 165 Order and NOITT can only be lodged with the consent of the Minister under sections 18 and 172 of the LAA. A section 165 Order can be revoked, (Form LAA – 1095) amended (Form LAA – 1096) or replaced with another Order. Where such an Order is proposed to be revoked or amended, or revoked and replaced with another Order, the amended or revoked and replaced Order will only be effective from the date of registration of the amendment or revocation or replacement (see section 13(6) and (7) of the LAA). The approved form of this type is Form LAA – 1069. A taking order over land to which a section 165 order exists should include a statement that upon registration of the taking order the authorized action is complete and that the Authorization Order therefore no longer encumbers the land.

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9.6.

NOTICE OF INTENTION TO TAKE

9.6.1.

WHAT IS A NOTICE OF INTENTION TO TAKE?

9.6.1.1.

GENERAL Before the LAA was introduced, the owners and occupiers of land or interests in land that was intended to be resumed, set aside or acquired for a public work were served with a Notice of Intention to Resume. Under the LAA, the terminology for the compulsory acquisition of land or interests in land has been changed. A Notice of Intention to Resume is now known as a Notice of Intention to Take. A Notice of Intention to Take (NOITT) is a notice made by an acquiring authority that demonstrates its desire to acquire a parcel of land or an interest in land compulsorily. The primary purpose of a NOITT is to inform the landowner or interest holder that the acquiring authority wishes to acquire his or her land or interest in that land. It is more than a mere statement; it is an intention to acquire the land or interest.

9.6.1.2.

FORMAT OF A NOTICE OF INTENTION TO TAKE A Notice of Intention to Take must be prepared and lodged with a coversheet in an Approved Form acceptable for registration at LANDGATE under the TLA. The Order giving notice of the intention to take is made by the Minister for Lands or acquiring authority. The Order giving notice of intention to take will be different depending on whether or not native title rights and interests are affected. However, in all cases, the appropriate Order given by the acquiring authority must set out all the information required by section 171 of the LAA. In all cases, as soon as possible after the NOITT has been registered, it must be advertised in a daily newspaper circulating throughout the State and served upon 

the principal proprietor to the land or interest,



occupier of the land



any holders of any native title rights or interests,



any holders of mining or petroleum rights,

by the acquiring authority advising those persons of its intention to acquire the land or interest in the land for the purpose of a public work: section 170(5) of the LAA. Unless already advised, those persons must also be advised of: 

the procedures under Parts 9 and 10 of the LAA for taking of land;



payment of purchase money or compensation;



rights of appeal;



rights as to the future disposition of land taken by agreement or compulsorily.

It is essential that the NOITT be served upon the following:

The principal proprietor to the land or interest

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

The occupier of the land



Any holders of any native title rights or interests



Any holders of mining or petroleum rights

A NOITT over land to which the NTA applies includes information required by the Act. In these cases the NOITT must be served on existing interest holders (including native title holders or claimants) and appropriate Aboriginal representative bodies. Clause 8(1)(j) of the Native Title (Notices) Determination 1998 requires notices to be given by post. As the LAA requires postal notice to be made by registered mail, notice to native title parties should be made in the same manner. In some circumstances the NOITT must also be publicised through radio stations and newspapers, as required by the LAA and the Native Title (Notices) Determination 1998. 9.6.1.3.

SURVEY REQUIREMENTS FOR LODGING A NOITT At the time a NOITT is prepared, the acquiring authority may not have a clear idea of the land proposed to be taken. In a majority of cases however, entry onto the land to carry out a feasibility study of the proposed taking should occur: section 182 of the LAA. For more information on notice of entry details, see Paragraph 9.7. A completed survey plan need not be prepared for a NOITT. However, a reasonable idea is required of the land proposed to be taken. See Paragraph 9.8.4 for guidelines of the consistency requirements between NOITT plans and the Taking Order itself.

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9.6.2.

EFFECT OF A NOTICE OF INTENTION TO TAKE

9.6.2.1.

GENERAL The significance of a NOITT can be summarised as follows: 

It commits the acquiring authority to a statutory process: -

9.6.2.2.

for the taking of the land or interest under Part 9 of the LAA; and for the assessment of compensation set out in Part 10 of the LAA



It prevents the landowner from otherwise dealing with his or her land, or from creating new interests or carrying out any improvements and works in relation to the land without the consent of the acquiring authority (see sections 172(2) and 173 of the LAA).



Once a NOITT has been registered against a title for a parcel of land, it binds that title for a period of 12 months from the date of registration unless it is cancelled: section 170(7) of the LAA. During this 12-month period, no person may enter into any transaction affecting the land without the consent in writing of the Minister for Lands or delegated acquiring authority under section 172(2) of the LAA. A transaction that has been entered into without the consent in writing of the Minister or delegated Acquiring Authority is void (see section 172(3) of the LAA).



It gives anyone claiming an estate or interest in the land an opportunity to lodge an objection to the proposed public work, provided it is received within 60 days of the date of registration of the NOITT, or such other time as is approved by the Minister.



It still allows all parties, the acquiring authority and the land or interest owner, the ability to negotiate a voluntary agreement for the sale of the land or interest to the acquiring authority.



It gives both parties the opportunity to determine the purchase price, the compensation and any other terms of the agreement, such as the surrender of occupation of the land.

TERM OF NOITT The initial NOITT is current for a period of 12 months and commences on and from the date of registration of the NOITT. The registration date of a NOITT is the date the NOITT was presented or lodged with the Registrar of Titles (section 53 of the TLA). A Taking Order must be lodged within the period of currency of a NOITT. Where an acquiring authority cannot proceed with a taking of the land or interest within the initial period of currency of the NOITT, the term of the NOITT may be extended. The term of a NOITT can be extended beyond the period of 12 months pursuant to section 170(8) of the LAA. However, the extension must be lodged before the expiry of the initial 12 months of the NOITT. See Paragraph 9.6.6 for more information on how to increase the period of currency of a NOITT. There is no power to extend the NOITT if it has already expired.

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9.6.2.3.

Compulsory Acquisition of Interests in Land

TRANSACTIONS THAT DO NOT REQUIRE CONSENT OF ACQUIRING AUTHORITY There are certain transactions set out in section 172(7) of the LAA that do not require the consent of the Minister or delegated acquiring authority. These are as follows:

9.6.2.4.



transactions to which the State or the Commonwealth, or any authority of the State or Commonwealth, or any person acting on behalf of the State or Commonwealth or such authority (other than the Public Trustee), is a party;



interests in land acquired by sale under a writ or warrant of execution issued by a Court of law;



discharges of mortgages or charges;



partition of land between co-proprietors;



deeds of arrangement between beneficiaries under a will or settlement;



vesting of interests in land in the personal representative on behalf of a deceased person;



vesting in a trustee of the estate of a deceased person, trustee in bankruptcy, or newly appointed trustee under any instrument;



vesting of interests in land held by a company in a liquidator, administrator, receiver, receiver-manager or manager of the company;



deeds of assignment or deeds of arrangement under the Commonwealth Bankruptcy Act 1966 or any Act of the Commonwealth amending or substitutes the Bankruptcy Act 1966.

NOITT (AND TAKING ORDER) CROWN LAND

NOT TO BE USED TO ACQUIRE FEE SIMPLE INTERESTS FROM

The LAA provides, in section 178(5), that any proposal to take Crown land for the purpose of granting a fee simple interest in that land requires the prior approval of the Minister for Lands. DoL interprets this section as preserving the Minister’s power to determine whether, how and at what price Crown land may be disposed of in the fee simple. The Minister for Lands will not, under section 18 of the LAA, consent to or allow a NOITT (or Taking Order) to be used to acquire the radical title of the Crown or, a fee simple interest in the Crown estate. As a matter of policy, fee simple interests in Crown Land should only be created under Part 6 of the LAA. The creation of a fee simple interest, under Part 6 of the LAA, has the effect that the agency or person seeking the fee simple interest comes to DoL at the beginning of any project proposal. DoL will impose the usual requirements for the determination of whether or not that interest should be granted, set the price for the land, ensure that the requirements of the NTA are met (where applicable) and carry out consultation with other relevant agencies (unless agreement is reached for the acquiring authority to undertake this process on DoL’s behalf. A NOITT (or Taking Order) should only be used to acquire existing interests in Crown land through the taking process. Where interests in Crown land do not exist and have not been created under the LAA, the normal processes under the other Parts of the LAA must be used to initially create that interest in Crown land. For example, if an acquiring authority wishes to create a reserve for a public purpose over unallocated Crown land, that authority should

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initially approach DoL with its proposal to create a reserve rather than commencing the compulsory acquisition of that land for a reserve purpose.

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9.6.3.

Compulsory Acquisition of Interests in Land

CONTENT AND TYPES OF NOTICES OF INTENTION TO TAKE NOITTs are issued under section 170 of the LAA. Section 171 outlines the contents that must be included in NOITT. These are: (a) a description of the land required; (b) particulars of – (i)

the purpose of the public work for which the land is proposed to be designated;

(ii)

the nature of interests to be taken;

(c) if it is proposed to make a disposition or grant to any person out of the interests proposed to be taken, a statement to that effect and particulars of the disposition or grant to be made; (d) particulars of – (i)

a place where persons interested may at any reasonable time inspect a plan of the land;

(ii)

the reasons why the land is suitable for, or is needed for, the public work;

(iii)

the date from which the land is likely to be required;

(iv)

the name of a contact officer in the acquiring authority; and

(v)

an address for lodging objections;

(e) a statement of the effect of section 172 (dealing with the need for Ministers approval prior to any transactions affecting the land); and (f) a statement of the effect of section 173 (dealing with the need for approval of the Minister prior to making any improvement to the land). In circumstances where DoL is processing the NOITT at the request of an acquiring authority (eg local government), the entity of the acquiring authority must be included in the NOITT. This ensures that the affected interest holders are aware of what authority is seeking the land in the NOITT. The acquiring authority becomes responsible for the provisions contained in Part 10. Where it is intended also to take native title rights and interests a notice of intention complying with the requirements of the NTA is required. DoL has developed specific combined notices which meet the requirements of both the NTA and LAA. Some of the information necessary under the two acts are similar. The notification requirements under the NTA are established by specific sections of that Act as well as the Native Title (Notices) Determination 1998. There are several differing circumstances where it may be required to take native title rights and interests where notices of intention under both acts are necessary and the relevant combined notice is to be used: 

land is required for a public work to be held, constructed and managed/operated by an acquiring authority or government/local government entity;



the taking is for the purpose of granting interests to other than a government party within a townsite (as defined by section 251C of the NTA), the intertidal zone (between high and low water marks) or if it is for the purposes of an infrastructure facility (as defined by section 253 of the NTA);



the taking is for the purpose of granting interests to other than a government party for those areas not covered by the circumstances in (2).

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9.6.4.

Chapter 9

WHEN IS A NOTICE OF INTENTION TO TAKE NOT REQUIRED? There are a number of cases when a NOITT is not required to be prepared, lodged and served on the relevant persons before taking the land. Despite this, where native title rights and interests are affected, any taking must still be consistent with the requirements of the NTA. Some examples of this are as follows:

9.6.5.



where the written law clearly specifies otherwise. For example, under section 13 of the PDA, a local government need not issue a NOITT where it wishes to purchase any land for the purpose of a town-planning scheme, or, wishes to take land comprised in such a scheme with the consent of the Governor.



where land or interests in land is proposed to be acquired for the construction of a railway authorised under a special Act (section 183 of the LAA).



where any interest is required for a public work and an agreement to purchase that interest has been obtained or, that interest is acquired with the consent of the owner of that interest (section 168 of the LAA). In this case, to enable a taking of the land, all interests proposed to be extinguished by that taking will only occur with the written consent of all interest holders. Where any interest holders’ consent has not been obtained, that particular interest will not be extinguished by the taking order.



where a notice of entry under section 186 of the LAA has occurred. In this case, a NOITT is not required only if 2 prerequisites have been satisfied: 

if the Minister is satisfied that it is necessary for the land to be used for a proposed public work, for which the Minister is authorised to take; and



because of the urgency of the work, or the difficulty in tracing the proprietors of the land, it is unreasonable or impracticable to delay entry onto the land until the land has been taken.

VARIATION OF NOTICES OF INTENTION TO TAKE A NOITT may, at any time during its currency, be varied by a further notice which must be served, registered and published similarly to the original notice (see section 170(6) and (7) of the LAA). Approved forms should be used. An amendment to a NOITT can only be lodged after a NOITT has been registered. It cannot be lodged as a follower document. Where a NOITT is amended, it is important to ensure that the Amendment document sets out the land description and the area of those parcels of land proposed to be amended. The amendment on the order itself must also be acknowledged by the signatory of the order. In other words, the signatory to the acquiring authority must clearly show that he or she has agreed to the changes made in the NOITT. In addition, the Amended document must include those items that are proposed to be amended and the amendment must be clearly stated. For example, it is particularly important that the land description, area and variation proposed is clearly set out. Generally, the Notice should also include the purpose, reason, nature of interests to be taken, date when the land is likely to be taken, place where the plan can be inspected, contact officer and the address where objections can be sent. Where a new notice is prepared in substitution of an existing NOITT, a description of the existing NOITT by document number should be stated somewhere within the new notice.

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9.6.6.

Compulsory Acquisition of Interests in Land

INCREASED PERIOD OF CURRENCY OF NOTICE OF INTENTION TO TAKE Section 170(8) of the LAA empowers the Minister to increase the period of currency of a NOITT. This is effected by making a determination and preparing and registering an Increased Period of Currency Notice Form LAA-1068. A determination to increase the period of currency of a NOITT can only be made by the Minister before the current NOITT expires and must be served on the same persons as had been served with the NOITT. In other words, any determination to increase the period of currency of a NOITT must be served on 

the principal proprietor to the land or interest,



occupier of the land,



any holders of any native title rights or interests, and



any holders of any mining or petroleum rights,

An Increased Period of Currency Notice cannot be lodged until the NOITT has been registered. It cannot be lodged as a follower document.

9.6.7.

CANCELLATION OF NOTICE OF INTENTION TO TAKE Section 170(6) of the LAA empowers the Minister for Lands or his delegates to cancel a NOITT before it expires. Where a NOITT is proposed to be cancelled, a Notice of Intention to Take Cancellation Form LAA-1030 and Form LAA – 1086 should be used.

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Compulsory Acquisition of Interests in Land

9.7.

NOTICE OF ENTRY

9.7.1.

GENERAL

Chapter 9

Sections 182 – 186 contained within Division 4 of Part 9 of the LAA provides circumstances whereby an acquiring authority can enter the land prior to commencing the taking procedures. In some cases, the Notice of Entry may be the first knowledge that a landowner receives that the acquiring authority is considering taking his or her land for a public work. A party wishing to enter onto land under sections 182 – 186 of the LAA must, as a matter of policy, indemnify DoL against any compensation or costs arising from such occupation. The notice of entry must contain sufficient information for the principal proprietor and occupier, and holders of native title rights and interests to understand the extent and scope of the entry. Where the Minister or a person authorised by the Minister or acquiring authority wishes to enter upon certain land, an appropriate notice must be served upon 

the principal proprietor to the land,



the occupier of the land, and



the holders of any native title rights, interests and any relevant Aboriginal representative bodies (where applicable): section 182 of the LAA.

Entry under these provisions does not limit the responsibility of acquiring authorities to comply with other statutory requirements that may apply prior to entry occurring. Entry on Crown land where it is considered that native title has not been extinguished is a future act under the NTA and must therefore meet the notification requirements of sections 24MD(6A) and 24MD(7) of the NTA and the Native Title (Notices) Determination 1998 (clauses 8(1)(j), (2) and (3)), and in accordance with the LAA. However, where the intention to take interests to confer interests (and to which section 24MD6(B) and 29 of the NTA will apply) the powers under sections 185 and 186 cannot be used until the relevant provisions of the NTA have been fully complied with (for example, agreement has been reached or there has been an appropriate determination enabling the future act to proceed). The powers under section 182 can be used where it is intended to confer interests on the basis that the feasibility study will assist the Minister in determining whether the land is suitable and an order under section 165 should be made. In some limited circumstances an acquiring authority may be able to rely on entry to land as a low impact future act as defined in section 24LA (Part 2, Division 3, Subdivision L) of the NTA. These provisions can only be relied on where native title has not been determined or up until native title has been determined.

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The notification period required to be served on owner/occupiers or native title parties varies depending on the purpose of the entry. In addition to the notification requirements under the LAA, it is also necessary to provide notification in accordance with section 24MD(7) of the NTA where native title rights and interests may be affected. Where the LAA has a higher requirement for the giving of notice (for example, registered post or publication in a newspaper), that standard should apply to giving notice to native title holders/parties. It should also be noted that compensation is payable in respect to any damages suffered by reason of entry on or occupation of the land pursuant to section 203 of the LAA. The interest holder must give notice in writing to the acquiring authority during the entry or occupation setting out the terms of the compensation. In addition, to avoid any conflict with owners/occupiers and native titleholders, it is appropriate that any person entering onto land under a notice of entry should provide evidence that they are a duly authorised person under the notice. A notice of entry is not registered on a land title. However, a copy must be provided when a Taking Order pursuant to a Notice of Entry issued under section 186 of the LAA is lodged for registration.

9.7.2.

ENTRY FOR FEASIBILITY STUDIES Section 182 of the LAA empowers the Minister or his duly authorised delegate to enter upon land for the purpose of carrying out a feasibility study of the land for use as a proposed public work. Where entry is proposed for feasibility studies under this section, the landowner must be given 30 days notice and details of the study before entry may occur: section 182(2) of the LAA. The approved form for this type of notice of entry is Form LAA – 1032.

9.7.3.

ENTRY FOR RAILWAY CONSTRUCTION Section 183 of the LAA authorises the Minister or his duly authorised delegate to enter upon land for the purposes of constructing a railway where the railway construction is subject to a special Act. Before entering onto the land under section 183 of the LAA, at least 7 days notice must be given and the effect of such entry is that the land is deemed to be taken and the procedures of informing the landowner of the taking and compensation under Part 10 of the LAA must be complied with. The approved form for this type of notice of entry is Form LAA – 1032A.

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9.7.4.

Chapter 9

ENTRY FOR INSPECTION OR ASSESSMENT OF COMPENSATION FOR SURVEYS Provided a notice of intention has been registered, section 184 of the LAA allows persons authorised in writing by the Minister to enter on land for the purpose of inspecting the land or making an assessment of compensation payable for the taking of interests in the land. The purpose of the entry is solely for surveying the land only and is not for the purpose of a taking at this stage. The landowner should be given at least 48 hours notice of entry and clear details of the entry describing the area of land to be entered upon and the purpose of the entry. The approved form for this type of notice of entry is Form LAA – 1032B).

9.7.5.

ENTRY FOR TEMPORARY OCCUPATION Section 185 of the LAA empowers the Minister to authorise a person to occupy and use land temporarily for the purpose of constructing or repairing any public work. Section 185 also relates to entry for taking stone, gravel, earth and other materials for the purpose of constructing or repairing public works. Section 10.2.2 of this manual provides further information on this connection in relation to compensation issues. Agencies should produce evidence of clearance from the Department of Conservation and Land Management, the Environmental Protection Authority or similar authorities when requesting DoL to serve a notice of entry for the purpose of removing stone, gravel, earth and other materials or to deposit such material. In all cases where an entry for temporary occupation is proposed, the landowner, occupier, and holders of native title rights and interests must first be given at least 7 days notice in writing and this notice must state the use proposed to be made of the land and an approximate period during which the use is expected to continue. The approved form for this type of notice of entry is Form LAA – 1032C.

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9.7.6.

Compulsory Acquisition of Interests in Land

ENTRY FOR WORK TO COMMENCE WITHOUT PRIOR TAKING ORDER Under section 186 of the LAA, the Minister is authorised, where the work is required on an urgent basis or it is difficult to trace proprietors of land, to enter upon land to undertake a feasibility study and to construct the work without registering a prior NOITT or a Taking Order. The effect of the determination by the Minister is taken to be a Notice of Intention to Take and the Minister may make an appropriate Taking Order as if section 177 of the LAA has been satisfied: section 186(5) of the LAA. A Taking Order must be lodged subsequent to an entry for work under section 186 of the LAA, and the Registrar of Titles requires a copy of the Notice of Entry to be lodged with the Taking Order. The power of the Minister to authorise such entry is dependent upon: 

the land being necessary to be used for a proposed public work; and



the work being required urgently, or if being difficult to trace the proprietors, or it is impractical to delay entry onto the land until the land is taken in accordance with Part 9 of the LAA.

A copy of the Notice of Entry under section 186 of the LAA must be produced with a Taking Order made pursuant to this Notice of Entry is lodged for registration. Entry powers under section 186 should be strictly limited to – 

cases of urgent public or community need;



civil emergency or public safety requirements;



cases where the owner consents;



in cases where local climatic conditions prevent construction during particular months of the year, the work must be attended to within a limited timeframe, and there is not time to serve a NOITT. This reason for entry should not be used if the reason that the work is to be completed in adverse climatic conditions is as a result of poor programming of the public work in the first place which could have been avoided had the project been properly planned and implemented in a timely manner;



in very rare cases, situations where there would be major costs to the State or the community if the work is delayed. This reason for entry should not be used if the reason for the cost imposition is as a result of poor programming of the public work in the first place where the cost could have been avoided had the project been properly planned and implemented in a timely manner; and



in other exceptional circumstances where it can be shown to the satisfaction of the Minister that urgency is justified.

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9.8.

TAKING ORDER

9.8.1.

WHAT IS A TAKING ORDER?

9.8.1.1.

GENERAL

Chapter 9

The Crown, any Crown instrumentality or local government has the right, under Part 9 of the LAA, to take land or interests in land for a public work. Section 161 of the LAA provides the general powers enabling an acquiring authority to acquire land or interests in land held by a person other than the Crown for the purpose of a public work. Such taking occurs by Ministerial Order known as a “Taking Order” and has effect immediately upon registration of the Taking Order against the certificate of title or Crown title. Interests in the Crown cannot be taken under the LAA. They must be acquired, cancelled, surrendered, forfeited or otherwise removed under the other Parts of the LAA. For example, where the Crown holds a fee simple interest in land, the fee simple interest must be revested into the Crown estate under section 82 of the LAA and a new interest must be negotiated and granted by the Minister under the LAA. Only interests in land not owned by the Crown can be taken. The factors to be considered before land or an interest in land is proposed to be taken set out in Paragraph 9.4.2 should also be borne in mind when land or interests in land are proposed to be acquired compulsorily. “Interests” in land, for the purposes of Part 9 and 10 of the LAA, is defined more widely in Part 9 of the LAA than in section 3 of the LAA. For the purposes of Parts 9 and 10 of the LAA, an interest in land means any legal or equitable estate or interest in land, including native title rights and interests, interests and rights created under any written law and the rights of a management body under a management order. As already shown in this Chapter, the procedure for acquiring land compulsorily commences with the service of a Notice of Intention to Take on the landowner and other relevant persons that may have an interest or right to the land. After considering any objections by the interested persons, the acquiring authority confirms its intention by issuing a Taking Order. 9.8.1.2.

FORM OF TAKING ORDER Where the land or an interest in land is acquired compulsorily, such acquisition is effected by a Ministerial Order known as a Taking Order. The Taking Order takes effect upon the date of registration of that Taking Order: section 179 of the LAA. Note for DoL Officers - a Taking Order coversheet must be prepared and lodged in an Approved form acceptable for registration at LANDGATE under the TLA. The Approved Form to be used is Approved Form LAA-1049. There are a number of varying types of Taking Orders prepared in a standard form.

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9.8.2.

Compulsory Acquisition of Interests in Land

EFFECT OF A TAKING ORDER Generally, from the date of registration of the Taking Order, a Taking Order may have effect –according to the terms of the Taking Order and may: 

vest the land in the Crown, Crown instrumentality, local government or acquiring authority named in the Order;



except as may otherwise be specified in the Taking Order, free the land from any encumbrances, rights or easements that burden the land. Any easements or rights that benefit the land are preserved, such as where the land resumed is the dominant tenement of an easement; and



bring the land under the operation of the TLA where the taken land is registered under the Registration of Deeds Act 1856;



where specifically mentioned in the Taking Order, remove designations and conditions of the land including the use of the land like where the land is dedicated as a road; and



where specifically mentioned in the Taking Order, vary an existing Management Order.

Where a Taking Order provides that “the Land” is taken, every registered and unregistered interest in the land (including minerals and native title rights and interests) not preserved in the Taking Order (see section 178(2)(a) of the LAA) is extinguished (see section 179(b) of the LAA) and each person who had an interest (whether registered or unregistered) has that holding converted into a claim for compensation. If the Taking Order does not provide that “the Land” is taken but provides specifically for the taking of any registered or unregistered interests, then only those interests declared in the Taking Order is extinguished and each person who held such interest has that specific holding converted into claim for compensation. For example, a fee simple interest does not include the ancillary interests created within that fee simple interest for example easements, mortgages, leases or caveats. Every person having a registered interest or caveat that is inconsistent with the effect and purpose of the Taking Order is extinguished to the extent of the inconsistency. Every unregistered interest which is inconsistent with the effect and purpose of the Taking Order is also extinguished and converted into a claim for compensation to the extent of the inconsistency. A Taking Order must take all the land within a certificate of title or crown title that is contained within a NOITT or the subject of a Notice of Entry under section 186 of the LAA (ie. where a NOITT is lodged over a certificate of title or crown title, a Taking Order cannot be for part of the land in that certificate of title or crown title and then another Taking Order for another part of the same certificate of title or crown title, where both Taking Orders are utilising the same NOITT). The Registrar of Titles has however allowed whole certificate of titles or crown titles contained within a NOITT to be taken in separate Taking Orders.

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9.8.3.

Chapter 9

CONTENT AND TYPES OF TAKING ORDER Taking Orders are made under section 177 of the LAA and must be made consistent with the NOITT. Where an agreement has been reached under section 168 of the LAA, the Taking Order can only be made in relation to the interest the subject of the agreement reached under section 168. Requirements for the content of a Taking Order are set out in section 178 of the LAA.

9.8.4.

CONSISTENCY BETWEEN TAKING ORDER AND NOTICE OF INTENTION TO TAKE

9.8.4.1.

GENERAL A NOITT, being an order made by an acquiring authority, setting out its intention to acquire certain land or interests in land for a public work, may not be in a position at that stage to identify the exact area of the land required. As such, it has been noted by the Registrar of Titles that Taking Orders lodged with him occasionally do not refer to the same piece of land, or the same area of land set out in the NOITT. Section 177 of the LAA requires that a Taking Order made by the Minister must be consistent with the Notice of Intention to Take. The Registrar has set out some guidelines of the types of Taking Orders considered acceptable to him and still coming within the principles of section 177 as being “consistent with” the NOITT. Note: the guidelines do not apply where an agreement is reached between the interests’ holders and the acquiring authority for the taking of land that may vary from the NOITT. A copy of the agreement should be lodged with the taking order. Where a Taking Order is lodged that does not comply with the guidelines set out below, the Taking Order will not be registered.

9.8.4.2.

PLAN OF LAND FOR THE NOITT The area of land set out in the NOITT must be clearly identified on a plan. The plan must be 

clearly shown as being “Subject to Survey”;



clearly identified as being “Approximate Only”; and



stated as being subject to a 10% variation in area after survey of the land intended for taking purposes.

A copy of the plan of the land referred to in the NOITT must be provided to the Registrar of Titles at the time the Taking Order is lodged for registration to enable the Registrar to verify that the land intended to be taken in the NOITT and the land actually taken in the Taking Order is consistent. In considering the consistency of the land details in the NOITT and the Taking Order, the Registrar must be satisfied that: 

the shape and location of the land to be taken in the NOITT must be similar to but not necessarily the same as the land contained in the Taking Order;

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

the area of the land intended to be taken in the NOITT must be consistent with the area of the land taken in the Taking Order (that is, the area taken must be within the 10% variation in the area notified for the taking); and



the description and area of the land shown in the Taking Order must be identical with the description and area of land shown on the plan of survey referred to in the Taking Order.

Based on the above criteria, the Registrar will not register a Taking Order where the area shown in the Taking Order is greater than 110% of the area shown in the NOITT. In such a case, the Taking Order must be withdrawn from registration and the NOITT amended in accordance with the LAA (see Paragraph 9.6.5 for more information on amending a NOITT). 9.8.4.3.

LAND WITH INTERESTS If the area shown in the Taking Order is found to be within the 10%variation that would normally enable registration, the Taking Order will not be registered where the land contained in the Taking Order includes additional tenures, interests, rights or claims that have not been shown in the NOITT and served on the relevant holders of those tenures, interests, rights or claims.

9.8.4.4.

WHERE THE LAND IN THE TAKING ORDER IS LESS THAN 90% OF LAND IN THE NOITT Where no objection has been made to the taking of a lesser area than shown in the NOITT the Taking Order may be registered provided that 

the NOITT complies with the criteria contained under the heading of “Plan of land for the NOITT” in this paragraph;



there is a clear statement in the NOITT that the land taken may be for an area substantially less than the 10% variation;



the land the subject of the Taking Order comes within the land description identified in the NOITT; and



the Taking Order does not include tenures, interests, rights or claims not already included in the NOITT.

Where there has been an objection to a taking of a lesser area than shown in the NOITT the Taking Order may only be registered where 

the NOITT complies with the criteria contained under the heading of “Plan of land for the NOITT” in this paragraph;



there is a clear statement in the NOITT that the land taken may be for an area substantially less than the 10% variation; and



the land the subject of the Taking Order falls within the land description identified in the NOITT.

In addition to compliance with the above, one of the following three conditions set out below must have occurred 

a clear written agreement as to the final area of the land has been reached with all interest holders the subject of the Taking Order;



the Minister has considered the objection, made a determination for a lesser area to be taken and has cancelled or amended the NOITT in accordance with section 170(6) of the LAA; or

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

9.8.4.5.

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a Court or other statutory body with powers in its legislation to do so determines that a lesser area should be taken and a copy of the Court order or decision made by the statutory body in compliance with its legislation is provided at the time of lodging the Taking Order.

TRANSITIONAL PROVISIONS Where existing NOITTs do not meet the above requirements, LANDGATE has proposed that a Taking Order that has been lodged showing a 10% variation in the area shown on an already registered NOITT (which may not state that the area intended to be taken is approximate and subject to survey) will be acceptable for registration only where written consent as to the variation has been obtained from all persons having interests affected by the variation, including 

the registered proprietors;



occupiers;



caveators and encumbrancers;



prospective purchasers (if any) who have obtained consent in writing of the Minister under section 172 of the LAA;



any native title holder;



any holders of any mining or petroleum rights.

9.8.5.

PROCEDURES FOR LODGING A TAKING ORDER

9.8.5.1.

GENERAL After the period allowed to object to the subject of a Notice of Intention to Take has expired and any lodged objections have been determined or resolved, the Minister or acquiring authority may make a Taking Order consistent with the Notice of Intention to Take. An original signed copy of the Taking Order, duly signed by the acquiring authority must be lodged with the Registrar of Titles using the coversheet in the approved form: “Content of a Taking Order”. Section 178 of the LAA sets out the statutory requirements as to what must be included: 

Description of the land affected by the Order.



Either, any registered or any unregistered interest to be taken, or, specify that the land itself is to be taken.



Specify that any interest taken is to be held as Crown land in the name of the State of Western Australia. This is subject to any specified interest (including the fee simple interest, lease of Crown land or easement) being disposed of or granted to the acquiring authority or any other specified person.



Designate that the land or interests in the land is required for the purpose of the public work.



If the land or interest taken is to be held by a person other than the Crown, specify any covenants that will apply to the land or interests in the land for such public work.



If the land is not under the TLA, provide that it will be brought under that Act. For example, if the land is under the Registration of Deeds Act 1856, a clear statement is needed in the Taking Order to enable that land to be immediately brought under the TLA on registration of the Taking Order. In addition, a Memorial of the Taking Order

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(in accordance with the Registration of Deeds Act 1856) should be lodged with the Taking Order. NOTE: The acquiring authority must also be identified in the Taking Order (refer to 9.6.3)

9.8.5.2.

CHECKLIST OF ADDITIONAL MATTERS TO BE CONSIDERED WHEN PREPARING A TAKING ORDER In addition to the requirements set out in section 177 of the LAA, a Taking Order will also need to take into consideration the following additional matters, where applicable:

9.8.5.3.



Where an existing designation over a parcel of Crown land no longer applies, the Taking Order must specify that the existing designation is cancelled.



Where a Management Order applies to the land, the Taking Order must vary the existing Management Order.



If the land proposed to be taken is Crown land subject to a reserve classification, the Taking Order must be preceded by a Cancellation of Reserve document.



Where the land is encumbered by a Registrar’s caveat, the acquiring authority must consult with DoL and consider the means for removal of the caveat before lodging the Taking Order.



Where the land is encumbered by a statutory memorial or notification which is not considered to be a right or interest that can be taken, then the acquiring authority should consider the means for removal of the memorial or notification before lodging the Taking Order or whether the memorial or notification can or should be preserved in the Taking Order.

SURVEY REQUIREMENTS FOR LAND THE SUBJECT OF A TAKING ORDER A survey plan or land title marked “Not for Alienation Purposes” or “Subject to Survey” indicates that the plan is not suitable for transfer into the freehold. Where land is proposed to be transferred into the freehold, a suitable deposited plan for the land approved by the Western Australian Planning Commission must be obtained before the Taking Order can be fully processed.

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AMENDMENT OF TAKING ORDER Section 180 of the LAA allows a Taking Order to be amended (or annulled) at any time within 90 days after its registration. A Taking Order Amendment document cannot be lodged as a follower document to a Taking Order. A Taking Order Amendment document need only include those items of the land description in the Taking Order to which are affected by the amendment. The amendment must be clearly stated. A description by document number of the Taking Order that is being amended should be stated in the opening paragraph of the document. As soon as possible after the registration of such an Order, a copy of the Order must be published in a daily newspaper circulating throughout the State: section 180(1a) of the LAA. When a Taking Order has been amended, any person prejudiced by the amendment is entitled to compensation for reasonable costs incurred in relation to the taking, up to and including the date of taking, and for any actual damage caused by any entry upon the land. Compensation may be sought from the acquiring authority for any damages resulting from the alteration. A claim for compensation in these instances must be made to the acquiring authority within 60 days after the date of registration of the cancelled or amended Taking Order, or within such longer period as the Minister may allow. If the land or interest holder and the acquiring authority do not agree on the amount of compensation, the amount may be determined in accordance with Part 10 of the LAA: section 181(4) of the LAA, unless another Act waives the requirement for the payment of compensation.

9.8.7.

ANNULMENT OF TAKING ORDER Section 180 of the LAA also enables a Taking Order to be annulled within 90 days of the registration of the Taking Order. Where a Taking Order is annulled, the annulment must be advertised as soon as possible after registration of the Annulment Order and all interest holders and the Director General of Mines must be advised. A claim for compensation in these instances must be made to the acquiring authority within 60 days after the date of registration of the cancelled or amended Taking Order, or within such longer period as the Minister may allow. If the land or interest holder and the acquiring authority do not agree on the amount of compensation, the amount may be determined in accordance with Part 10 of the LAA: section 181(4) of the LAA, unless another Act waives the requirement for the payment of compensation.

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9.9.

DESIGNATION

9.9.1.

WHAT IS A DESIGNATION? Designate, for the purposes of Part 9 and Part 10 of the LAA, means to “reserve, declare, covenant, dedicate, set apart or otherwise mark off for use for a specified purpose by means of an annotation or instrument on or registered against the certificate of title or certificate of Crown land title”: section 151(1) of the LAA. A designation is a mechanism set up in Part 9 of the LAA to identify certain land that has been acquired for a particular purpose. Where land is acquired compulsorily for a public work under Part 9 of the LAA, the title for the land or interest is endorsed on that title showing that the land or interest has been acquired for and will be used for that particular public work.

9.9.1.1.

DESIGNATION BY TAKING Designations against land or interests in land can only be made under the LAA by way of a taking order which sets out the designation in accordance with section 178(1)(d) of the LAA.

9.9.1.2.

TRANSITIONAL PROVISION FOR DESIGNATIONS PRE-LAA There is presently no transition provision enabling land acquired for a public work to be designated before the LAA was introduced. Under the Land Acquisition and Public Works Act 1902, where land or an interest in land was acquired compulsorily, a notice of intention to resume was prepared, served and gazetted. That notice of intention to resume was endorsed on the relevant freehold title by way of a rubber stamp. This has been considered by DoL to be the earlier form of designation on title pre-LAA. Proposed amendments to rectify this are currently being considered. In the interim, the Registrar of Titles will: 

where it can be proved that certain land was in fact acquired pre-LAA for a public work, and



a copy of the gazette of that acquisition can be produced with an Application lodged by the acquiring authority,

endorse a designation against a title for the land or interest in land to enable the acquiring authority to deal with the land under the provisions of Part 9 of the LAA. 9.9.1.3.

NO DESIGNATION BY AGREEMENT Where land or interest in land is acquired by agreement, a Transfer document is signed by the acquiring authority and the owner of that land or interest and that document is then lodged with the Registrar for registration under the TLA. A designation is not endorsed on the title where a transfer is used to convey the land or interest in land and the provisions of Division 5 of Part 9 of the LAA will not apply to acquisitions by agreement.

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9.9.1.4.

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PROVISION FOR DESIGNATION FOR ACQUISITION BY AGREEMENT There is no provision enabling land acquired by agreement for a public work to be designated under the LAA. Where land is acquired by agreement, the former owner is not entitled to an option to purchase the land or interest in land if that land or interest is no longer required for a public work as set out in section 190 of the LAA. Consideration is given to enabling a designation to be endorsed against a title where land is acquired by agreement for a public work.

9.9.2.

EFFECT OF A DESIGNATION A designation is a notification on the Register that clearly marks the land or interest in land as having been acquired for a particular purpose. Where land has been designated for a particular purpose, the land or interest in land must be used for that purpose only. Where the land or interest in land is proposed to be used for a different purpose, or is no longer required for the public work, the designation must be changed or cancelled pursuant to section 187 of the LAA. It is important to note that where a designation is proposed to be cancelled, the provisions of Division 5 of Part 9 of the LAA, where applicable, must be followed. Under Division 5 of Part 9 of the LAA, the former owner of the land or interest must be granted an option to purchase the land or interest.

9.9.3.

AMENDMENT OF A DESIGNATION Where a designation is required to be changed, a Ministerial Order known as a Change of Designation must be prepared and lodged for registration to change that designation on the title for the land or interest to the land. Any amendment or change of designation cannot be made until the provisions of sections 189 and 190 of the LAA have first been complied with and all persons entitled to exercise an option to purchase have been given the opportunity to do so.

9.9.4.

CANCELLATION OF A DESIGNATION Land or interest in land that is designated for a public work cannot be sold or disposed of until the designation is cancelled. The power to cancel a designation is contained in section 187 of the LAA. A designation cannot be cancelled until the provisions of sections 189 and 190 of the LAA have been complied with (where those provisions have application) and all persons entitled to exercise an option to purchase have declined to do so. However, it should be noted that certain Acts exclude the operations of Sections 187-191 of the LAA. For instance, if the subject land was taken under the Planning and Development Act 2005 (P&D Act) compliance with Section 190 of the LAA is not required and the Cancellation of the Designation can proceed under Section 187 of the LAA. This is subject to the Governor consenting to the Commission under the provisions of Section 37(6) of the Metropolitan Region Town Planning Scheme Act 1959 (MRTPA). The LAA does provide that if a designation is cancelled in good faith, in compliance with Section 187(1) and (2), and the rights of the former owner have been overlooked, the cancellation and any subsequent transaction taken are deemed to be valid and no action can be taken against the Crown, the Minister or acquiring authority. Where a designation has been entered against a Crown land title as part of procedures required to satisfy the requirements of the NTA prior to disposition of Crown land, then Landgate does not require removal of such designation prior to the disposition occurring.

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9.10.

SELLING ACQUIRED LAND

9.10.1.

GENERAL Section 9 of this chapter deals with designations, their effect, and their cancellation. A primary function of designations is to ensure land taken for a public work is used for that purpose; and where such use does not occur, or the land is no longer required for the purpose, to secure certain rights of the former land-owner, under particular circumstances.

9.10.2.

FORMER OWNER’S RIGHTS Sections 189-191 of the LAA provide that the owner of the fee simple in land immediately prior to its taking should have first option to buy if the land is no longer required. This principle only applies if all of the following circumstances apply: A. The fee simple was taken without agreement and either (i)

taking occurred less than 10 years ago, or

(ii)

the land has not been used for any public work

B. And the land is to be used for another purpose other than that for which it was taken, or sold. C. And the land is not a small portion taken at the previous owner’s request under section 176 of the LAA. D. And the land has not been substantially improved since taking. E. And either (i)

the land is a “lot” satisfying the Planning and Development Act 2005, or

(ii)

the land can be amalgamated with other land held by the previous owner.

In the absence of any one of requirements A, B, C, D and E being applicable, there is no requirement to offer the land to the former owner. Section 189 provides that where an interest less than fee simple was originally acquired, the interest should be offered to the current owner of the fee simple of the relevant land – i.e., the interest does not need to be offered to the former owner. If all of these requirements do not apply (i.e. even if there is only one which is not applicable), there is no need to comply with the notification requirements of section 190(3) of the LAA. Section 161(1)(d) then provides authority for sale, while section 161(1)(b) and 187(1) provide for amendment or removal of designation. A minute to the Minister recommending disposal and an Amend/Cancel Designation document for signing are all that is required.

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EXCEPTIONS TO THE RULE There are two important exceptions to the principle set down above: 

Court actions in process as at the commencement of the LAA (30 March 1998), over land taken under the Public Works Act 1902 or the Land Acquisition and Public Works Act 1902 (LAPWA), and



“clearance” actions in process under section 29 of the LAPWA as at 30 March 1998.

In the first case, section 200 (3) of the LAA enables a litigant to progress his action in accordance with the provisions formerly applying under sections 29, 29A or 29B of the LAPWA. In the second case, section 200 (2) of the LAA provides discretion for section 29 LAPWA “clearance” actions which had been commenced prior to 30 March 1998, to be completed in accordance with the former provisions of the LAPWA.

9.10.4.

DEALING WITH FORMER OWNERS’ RIGHTS To clarify the point: 

If the land was taken 10 years ago or more, and it has been used for any public work (not just the designated purpose for which it was taken) it need not be offered back to the former owner.



If the land was taken less than 10 years ago, it should be offered back to the former owner, regardless of whether it has been used for its designated purpose or not – unless one of the exceptions in section 190(1)(c)-(e) apply.



If the land is a small portion taken at the owner’s request under section 176, it need not be offered back.



If the land has been substantially improved since taking, it need not be offered back regardless of whether the land was resumed less than 10 years ago.



If the land is not a separate “lot” within the meaning of the PDA; and can’t be amalgamated with adjoining land owned by the former owner of the taken land, it need not be offered back – regardless of whether the land was resumed less than 10 years ago.



If the land was purchased, it need not be offered back.

It should be noted that the decision-making power to change or cancel to designation of land has been delegated to the Chief Executive, and that submissions in this connection need to go to the Chief Executive. It is important to note that ‘designations’ apply only to land compulsorily acquired, whether under the LAA, or previously under the LAPWA. Purchased land is not ‘designated’, and is not subject to the provisions of sections 187-191. Such land may be disposed of without reference to the Minister, as powers under section 161(1)(d) have been delegated down to Regional Manager level. The “holding authority” undertakes the greater part of the work associated with such dealings. “Holding authority” is defined by section 151 to mean (a) a management body, in relation to reserved land, or (b) the actual holder of the relevant interest. The Minister for Lands is considered to be a “holding authority”, an “acquiring authority”, or “authority”, for purposes of Part 9.

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If it is necessary to serve notice under section 190(3), the “holding authority” must advertise in a daily State newspaper and serve notice on all “qualified persons”. A person qualified for a first option must apply within 30 days of a notice being served, or such extended term as the Minister may approve. Grounds for approving an extended term may include the following: 

the relevant party is in the country or interstate/overseas (to allow for postage, particularly when notice is served to a Post Office Box number).



there are multiple “qualified persons”.



the previous owner is deceased.

The holding authority then has 60 days in which to grant the option. Where DoL is acting on behalf of the holding authority, the price, terms and conditions of sale should be determined either prior to or during the 30 days following serving of the notice. Knowledge of price, terms and conditions of sale may also assist a person to decide whether to “take up” an option. Any disposal of land must be at the current market value as determined by the holding authority on the advice of the Valuer General (section 190(7)). The terms and condition of disposal, such as prohibiting assignment of an option, should be considered when determining that a land parcel is surplus to requirements. If there is more than one qualified person, the holding authority must decide priority. This applies mainly where a title was held as tenants in common by several persons or by companies. The option should be made to the original holders in order of the number of shares held at the time of acquisition. An appeal under part 3 of the LAA may be made if a person is not satisfied with the price, terms and conditions, or priority set by the holding authority. They may also appeal against a decision refusing their option to purchase. Such an appeal must be lodged within 21 days of receiving notice, unless the Minister allows a longer period. Grounds for allowing a longer period in which to lodge an appeal may include: 

seeking an independent valuation



obtaining signature/declaration form other holders entitled to the option



relevant party is interstate/overseas



relevant party is deceased or incapacitated.

Further information on appeals appears in Chapter 3 of this manual.

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9.10.5.

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SALES OF ACQUIRED LAND Sales of land acquired for public works can be grouped into four general categories: (i)

the land was acquired with the specific intention of being onsold eg. pursuant to a redevelopment or housing Act;

(ii)

the land was taken but is now no longer required for its acquired purpose, and the former owner is entitled to its return;

(iii)

as in (ii), but the former owner is not entitled to its return;

(iv)

the land was purchased rather than taken, and is no longer required for its acquired purpose.

Category (i) disposals would proceed in accordance with the provisions of the relevant special Act. Categories (ii), (iii) and (iv) sales have been already partly dealt with in previous sections of this chapter. Section 190 is prescriptive as to how disposal to a former owner should occur, with section 190(7) requiring the holding authority to establish the price on the advice of the Valuer General. Categories (iii) and (iv) sales should proceed on the basis of general principles established for sales under the LAA. Chapter 6 of this manual provides further information in this connection. Competitive sales processes are the norm, with prices being established after reference to the Valuer General, subject to frequent review where the value of the property is high. Pricing powers have been delegated to certain DoL officers under section 161(1)(d), provided that the price set is within 90% of the Valuer General’s valuation. When disposing of land which had been acquired by other than compulsory taking, it is important to check original contracts of sale and associated records to determine whether the State has a contractual, as distinct from a statutory, responsibility to offer the land back to the former owner (and at what price).

9.10.6.

PROCEEDS OF SALE Any proceeds from the disposition of the land are to be paid into the fund out of which the payment for the public work was made, or if no such find can be identified, into the Consolidated Fund (section 188). However, advice from the A/Assistant Director, Capital Evaluation and Planning, Treasury to the Chief Executive on 11 September 1997 indicated that Treasury does not consider it necessary to continue with this practice. It is considered that both the debt and principal components ultimately become capital revenue to the Consolidated Fund, which was created as a combination of the former Consolidated Revenue and General Loan and Capital Works Funds.

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9.11.

LEASING ACQUIRED LAND

9.11.1.

GENERAL Section 192 of the LAA provides for the leasing of land acquired for a public work. The provision recognises that –

9.11.2.



a property may be acquired by the State specifically for the purpose of leasing, as with properties acquired for accommodation of government agencies and utilities, or



it is efficient to lease or let properties until they are actually used for the purpose for which they were acquired (eg. Northbridge properties acquired for redevelopment as part of the Cultural Precinct)

DESIGNATED LAND Section 9.9 of this chapter deals with designations. Designations relate to land taken for a public work, as distinct from purchased by negotiated agreement. Section 192 of the LAA refers to designated land – that is, land compulsorily acquired. However, it is illustrative to note that section 32 of the LAPWA, which provided for leasing of public works land, applied to any land “held, taken, purchased, or acquired under this or any other Act, or otherwise howsoever, for any public work … or … any land reserved under the Land Act 1933, for a purpose that is under this Act, a Government work or a local work, on which improvements exist or have been erected for the purpose of, or for purposes incidental to, that work”. The LAPWA provision was much broader than the very restrictive section 192 of the LAA. It is intended to correct this deficiency in section 92 soon. In practice therefore, the LAPWA, and now the LAA, leasing provisions have been used in relation to properties purchased as well as taken. DoL operates an extensive rental portfolio of purchased properties, as does the Department of Housing and Works. Nevertheless, from a strictly legal perspective, section 192 powers should be used only in relation to taken land.

9.11.3.

PROCEDURES It is important to note that holding authorities may now lease direct – without any need for DoL/the Minister for Lands to undertake this function on their behalf. This is subject to a holding authority’s – 

corporate identity under its own Act (the lessor may need to be the relevant Minister for the Agency);



statutory powers to lease (they may need complementary powers under their own Act to deal in land).

This does not derogate from the Minister for Lands’ ability to lease under section 192. DoL leases such land on behalf of authorities that do not have the resources or legislative ability to lease land themselves. As with policy on leasing generally, leases of public works land should be considered where ongoing management and control is required. If it is not essential to return the land, consideration should be given to declaring the land surplus and selling it at current market value.

9.11.4.

RENTAL Rent for leases of acquired land should be established in accordance with the general policy on lease rentals. This requires full market value rental as advised by the Valuer General,

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unless circumstance warrant otherwise; and payment of fees to cover DoL’s administrative costs. The issues are addressed below. 9.11.4.1.

DISCOUNTED RENTALS Discounted rentals are provided to accommodate inadequate building maintenance funding. The relevant LANDGATE policy of 1993 noted the following advantages: 

Premises are utilised and maintained.



A return is received from a State asset.



The value of the building is increased, and sale or future use is enhanced.



Costs of repairs are minimised.

Current policy provides for rent discounting under the current circumstances: 

A building in a vacant state is difficult to rent at market value despite advertising in normal channels.



Funds are unavailable for immediate repairs.



Premises are earmarked for alternative public use in the near future (or as expressly planned by government) and cannot be sold, or the market is depressed and it is uneconomical to sell the property.



In order to gain some revenue, interested parties are encouraged to inspect the building and make offers to utilise the premises.



Estimated costs of repairing the building, timeframe involved, and overall return to the lessor are considered.



A discounted rental may be negotiated with a view to the lessor receiving at least 50% of the market rental for an initial period of six or twelve months (etc.) depending on the circumstances.



A submission is to be made to the Regional Manager for approval, with a basic cost/benefit analysis justifying the discount proposed.



The interested party/proposed occupant is to be advised of terms of leasing, a draft document is to be forwarded for consideration, and a formal lease agreement is to be executed upon completion of negotiations.



Regular follow-up inspections are to be made to ensure the work is done by the lessee to an acceptable standard, in accordance with the agreement reached with the lessee.



Variations to the above guidelines are to be referred by the Manager, Regional and Metro Services Division in the relevant region, for endorsement.

Rent discounting is to be strictly minimised. The preferred approach is for DoL/Department of Housing and Works to finance works necessary to achieve maximum market rentals.

9.11.4.2.

NOMINAL RENTALS Nominal rental (typically “peppercorn” or $1.00 per annum) arrangements are a legacy situation, and were entered into in the past where – 

a building remained empty for a period of time, sale was not possible, and a commercial rental was not achievable,

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

requests were received from groups providing a valuable community service, subject to all outgoings being the responsibility of the lessee, and



Cabinet or Ministerial approval was given to the arrangement.

Government policy since the early 1990s has promoted transparent accounting, full costing of agencies’ service delivery, replacement of hidden subsidies by cash grants (where justified), and strategic management of agencies’ assets. General policy is therefore against further grants of nominal rental arrangements. The preferred approach, consistent with principles of transparency of accounting, is that community groups deserving special government assistance should be given cash grants, and out of this should pay full commercial rents to DoL for any leases of government property. In limited circumstances concessional or nominal rents may still be permitted for small community groups providing a valuable service to the community, subject to ongoing review and any future policy change. Peppercorn or nominal rents should nevertheless be discontinued and, in those situations where continuation of special government assistance through nominal rents is considered to be warranted, be replaced by a rental which at least covers the Department’s costs. There should be no new peppercorn rental arrangements. All reviews of existing, and proposals for new, nominal or below market value rental arrangements should be submitted for Ministerial approval. Where (at Ministerial direction) nominal rent arrangements are to be provided, the minimum rent figure in 1999 should be $500 p.a., but with adjustments for inflation, reviews of departmental operating costs, and maintenance costs incurred by the State; or alternatively, 10% of the assessed market rental, dependant on the circumstances. Any nominal rental leases agreed to by the Minister are to be negotiated on the following basis: 

all outgoings are to be the responsibility of the lessee;



insurance policies are to be completed at the expense of the lessee;



relevant break clauses are to be included in the agreement to protect Government’s future requirements for the premises, to allow ready sale or replacement by commercial leases, and to permit changes to government policy.



Arrangements are to be for minimal terms (5 years maximum)

New nominal rental arrangements are to be avoided, and only entered into under exceptional circumstances, with the Minister’s approval. Submissions in this connection are to be put forward by the Manager of the relevant Regional and Metro Services region. 9.11.4.3.

PUBLIC FACILITIES Where rented premises are being used for office or commercial use by State or local government bodies, rental should be at market value, in line with the 1986 Government Accommodation Board directive and the 1998 Treasury policy. Reductions may be allowed where the agency is covering substantial costs of maintenance or repairs, and/or there is no ready market for leasing the premises. Childcare, occasional care and family care service providers in government buildings should pay market rent where they are commercial operations, or substantial operations receiving significant government funding.

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Compulsory Acquisition of Interests in Land

9.12.

EASEMENTS

9.12.1.

GENERAL

Chapter 9

Division 6 of Part 9 of the LAA makes specific provision in relation to the acquisition of easements by the State of WA or other acquiring authority. Section 161 allows any interest to be taken for a public work, and this includes easements. For example, a government agency may create an easement over privately owned land, to facilitate provision of services by that agency. Chapter 8 (Paragraph 8.2) of this manual provides further information on the nature of easements. Normally there must be both a dominant and servient tenement, with one parcel of land (the servient tenement) being subject to an easement serving an adjacent parcel (the dominant tenement). However, section 195 provides that easements may be created “in gross” in favour of the State (or other acquiring authority), without need for a dominant tenement. This means that an easement in favour of the State (or other acquiring authority) may exist in its own right over servient land.

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Chapter 9

9.12.2.

Compulsory Acquisition of Interests in Land

PUBLIC ACCESS EASEMENTS Section 196 of the LAA carries over the former section 33A of the Land Acquisition and Public Works Act 1902, and provides for acquisition of public access easements. This provision was created to allow easements to be established over private freehold lands, in favour of the general public. The harbour’s edge of Mindarie Keys provides a classic example. Public access easements can only be acquired by negotiated agreement. They cannot be compulsorily taken. Such easements will generally be created in favour of the relevant local government (on behalf of the general public using the affected land). Both the State and the local government are statutorily protected against damages arising from injuries suffered as a consequence of a person’s use of the easement (see section 196(7)). Public access easements cannot generally (see following qualification) be created over Crown land; only over alienated land by negotiated acquisition. A public access easement is a particular type of section 195 easement. Where a government agency has acquired land (under Part 9 for a public work, or otherwise) it would be possible for a local government to acquire a public access easement over that land. Where the acquired land has been revested, it may still be possible for the local government to acquire a public access easement over that land. When creating a public access easement, the following principles should be adhered to: 

ensure that the Crown/local government is adequately protected against claims for damages arising out of negligence; and



ensure that adequate provision is made for the ongoing maintenance of public access facilities.

As a matter of Government policy, DoL officers should have regard to the following: 

Where a local government/other agency requests a public access easement, that body must provide the Crown with an indemnity against all claims for compensation.



The easement document must include conditions clearly stating the parties that will be responsible for the construction, maintenance and removal of any improvements within the easement.



The easement document should also require provision for public liability insurance and indemnity to the Crown before any approval is granted.



Land may not be taken solely for the purpose of creating a public access easement. Acquisition should only be negotiated by agreement.



Long term administration and management issues associated with public access easements need to be carefully considered before proceeding to create the easement.

These easements can also be used in shopping centres and to provide greater flexibility than rights of way and pedestrian accessways created under section 20A of the PDA. Chapter 8 (Paragraph 8.3.3) of this manual also refers to this subject.

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9.12.3.

Chapter 9

GRANTS OF EASEMENT Section 193 of the LAA empowers the Minister to grant easements over designated land (ie, land taken by compulsory process). Section 256 empowers the State Administrative Tribunal or a court hearing an action of compensation to award a claimant an easement in relation to land acquired for a public work, in satisfaction or part satisfaction of compensation.

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Chapter 9

9.13.

Compulsory Acquisition of Interests in Land

TRANSITIONALS Transitional provisions in relation to incomplete actions initiated under provisions of the Land Acquisition and Public Works Act 1902 (LAPWA) (now the Public Works Act 1902) revoked by the Acts Amendment (Land Administration) Act 1997, are found in sections 200 and 201 of the LAA. Generally speaking, these provisions are limited. Section 200(1) provides that a notice of intention to resume made under section 17(2)(b) of the LAPWA and still current at the LAA’s commencement continued in force until expiry of the 30 day period specified by section 17(2)(e) of that Act, and taking could then proceed under the LAA. Section 200(2) provides that, subject to section 200(1), an incomplete procedure commenced under the LAPWA could continue and be completed as if the LAPWA had not been repealed. Section 200(3) provides that any court proceedings commenced prior to the LAA’s commencement in relation to a former owner’s rights in relation to resumed land may continue as though the LAPWA provisions remained in force. The effect of this provision is that although former owners’ rights in relation to resumed land have been substantially changed by the LAA provisions in this regard, a court action in process as at 30 March 1998 may continue to deal with a former owner’s rights as they existed under the LAPWA. This provision is likely to be revoked by legislation currently (April 2002) before Parliament – the Yallingup Foreshore Land Bill 2002. Section 201 preserved delegations existing under sections 5A and 5B of the LAPWA. In fact, the effect of this provision was limited. Replacement delegations were put into place under sections 159 and 160 of the LAA.

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CHAPTER 10 COMPENSATION

TABLE OF CONTENTS 10.

COMPENSATION

10-1

10.1.

INTRODUCTION

10-1

10.2.

PERSONS ENTITLED TO COMPENSATION

10-2

10.2.1. GENERAL 10-2 10.2.2. LIMITS TO PAYMENT OF COMPENSATION

10.3.

10-5

REGISTRATION OF TITLE

10-6

10.3.1. THE VESTING OF VARIOUS INTERESTS BY TAKING ORDER

10-6

10.3.2. THE IMPACT OF REGISTRATION PURSUANT TO A VOID TAKING ORDER

10-6

10.4.

THE CLAIM

10-7

10.4.1. WHO MAY LODGE A CLAIM FOR COMPENSATION?

10-7

10.4.2. TIME LIMIT FOR MAKING A CLAIM FOR COMPENSATION

10-7

10.4.3. THE CLAIM FORM

10-8

10.5.

DEALING WITH THE CLAIM

10-10

10.5.1. OFFERS OF COMPENSATION

10-10

10.5.2. GENERAL SETTLING OF A COMPENSATION CLAIM

10-11

10.6.

THE STATE ADMINISTRATIVE TRIBUNAL

10-13

10.6.1. GENERAL 10-13 10.6.2. CONSTITUTION OF THE TRIBUNAL

10.7.

ERROR! BOOKMARK NOT DEFINED.

ASSESSING COMPENSATION

10-14

10.7.1. GENERAL 10-14 10.7.2. DATE OF ASSESSING COMPENSATION

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Compensation

10.7.3. EFFECT OF REGISTRATION OF NOTICE OF INTENTION TO TAKE

10-14

10.7.4. OTHER FACTORS TO BE CONSIDERED IN ASSESSING COMPENSATION

10-15

10.8.

PAYMENT OF COMPENSATION

10-16

10.8.1. WHEN SHOULD COMPENSATION BE PAID?

10-16

10.8.2. TO WHOM SHOULD COMPENSATION BE PAID?

10-16

10.8.3. EASEMENTS OR OTHER LANDS AWARDED IN LIEU OF COMPENSATION

10-16

10.8.4. OUT OF WHAT FUNDS SHOULD COMPENSATION BE PAID?

10-16

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Compensation

Chapter 10

10. COMPENSATION 10.1.

INTRODUCTION Chapter 9 (Paragraph 9.1.5) of this manual provides that all land and interests in land, including native title rights and interests, can be taken for a public work. Where land or interests in land are taken by the registration of a Taking Order, all rights and interests affecting the land are converted into a claim for compensation. Section 51(xxxi) of the Australian Constitution expressly empowers the Federal Parliament to make laws for the acquisition of property on “just terms”. This power extends to any State or individual property in respect of which the Commonwealth Parliament has a law-making function. The High Court decision of New South Wales v Commonwealth (1915) 20 CLR 54 held that the sovereignty of each State Parliament empowers it to take or acquire land with or without payment of compensation. The power vested in this State to take land or interests in land is set out in Part 9 of the Land Administration Act 1997 (LAA) and the compensation entitlement of owners of interests in land taken under Part 9 is set out in Part 10 of the LAA.

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Compensation

10.2.

PERSONS ENTITLED TO COMPENSATION

10.2.1.

GENERAL Compulsory acquisition and compensation for that acquisition are statutory processes and depend purely upon the legislative provisions. Compensation for compulsory acquisition does not form part of the common law. Acquiring authorities in Western Australia must comply strictly with the legislative requirements of the LAA. Where an acquiring authority exceeds the powers conferred on it by the LAA, the acquiring authority will be liable in damages for conduct that is contrary to the LAA. Compensation can be claimed by certain persons, in relation to certain types of interests and rights and types of actions in relation to the land or interests in land using the appropriate sections set out in Part 10 of the LAA. In general, acquiring authorities are responsible for meeting any compensation liability for the taking of interests. For this reason it is important that the acquiring authority is identified in both the Notice of Intention to Take (NOITT) and Taking Order (see 9.6.3 and 9.8.5.1). Where it is intended that the purpose of any taking is to confer interests the Minister may enter an agreement with the person receiving the interest as to the amount that person will contribute to any compensation liability – section 167. However, this section applies only where the person requests the Minister to take interests for the purpose of a grant of another interest in the land. The provisions relating to claims for compensation include time frames within which certain actions must be taken by interest holders and an acquiring authority.

10.2.1.1.

OWNERS OF REGISTERED INTERESTS IN LAND With the exception of determined native title holders (as defined by the Native Title Act 1993), only owners of interests in land that are registered or notified in LANDGATE or the Registry of Deeds are entitled to claim compensation for their interest from the acquiring authority (see section 202 of the LAA). Compensation cannot be awarded to another person for the same land or interest in the land. Compensation is not payable for conditional tenure land transferred under section 75 of the LAA except for improvements made to the land following the transfer or any consideration paid for the land: Section 202(3) of the LAA.

10.2.1.2.

NATIVE TITLE RIGHTS AND INTERESTS Determined native titleholders are entitled to claim for compensation under section 202 of the LAA. The National Native Title Tribunal pursuant to the Native Title Act 1993 (NTA) maintains the Register of Native Title. Division 5 of Part 2 of the NTA sets out provisions for the determination of compensation. Section 51(1) of that Act provides that native titleholders are entitled to just terms so as to compensate them for any loss, diminution, impairment or other effect on their native title rights and interests. Where the compensation is for the compulsory acquisition of those rights and interests, the principles or criteria set out in section 51(2) of that Act should be considered. Where other legislation provides principles or criteria for compensation rights for ordinary titleholders, those principles must be applied to native title holders (see section 51(3) of that Act).

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Compensation

Chapter 10

Where non-monetary compensation is requested, the criteria set out in section 51(6), (7) and (8) of that Act must be considered. Generally, for the determination of compensation where there is an entitlement to the native title holder, compensation is paid only once for essentially the same act, and due account should be taken for any compensation previously awarded under another State or Commonwealth law for the same act when calculating compensation to be paid. In this respect regard should also be taken for any agreements under the NTA (for example, agreements under the right to negotiate, future act determinations or indigenous land use agreements) which may have established the basis for meeting compensation liability. In addition, subject to the requirement to pay compensation on just terms, the compensation cannot exceed the amount payable for the compulsory acquisition of a freehold estate of the land. In some circumstances a claim for compensation under the LAA may be lodged by a party claiming to hold native title. Unless the party can provide evidence supporting a determination of native title under the NTA the claim for compensation should be held pending until a determination on the existence or otherwise of native title has been made. 10.2.1.3.

DAMAGE SUFFERED BY NOTICE OF ENTRY The LAA provides that a person who holds an interest in land, or who lawfully occupies the land, suffers damage by reason of entry or occupation of the land under Part 9 of the LAA, is entitled to compensation from the acquiring authority if the land or interest is not subsequently taken. Compensation claimed cannot exceed the value of the land had the land itself been taken. For the different types of notices of entry onto land under Part 9 of the LAA, see Chapter 9 (Paragraph 9.7) of this manual.

10.2.1.4.

MANAGEMENT BODIES Management bodies, as defined in the LAA as a person with whom the care, control and management of a reserve or mall reserve has been placed under section 46(1) or 59(4) of the LAA, is entitled to compensation under section 204 of the LAA for the depreciated value of any structures and improvements lost as a result of the registration of a Taking Order. The management body must not be an instrumentality of the State. A management body cannot claim compensation for the revocation or variation of the management order as a result of the Taking Order: Section 204 of the LAA. As compensation is payable, it is necessary, when an acquiring authority is desirous of taking land that affects a managed reserve or mall reserve, to serve a Notice of Intention to Take on the management body, even though that management body does not, by definition, have an “interest” in the land. A compensation claim must also be forwarded to a management body affected by a proposed taking for any improvements that may exist. Where a managed reserve is leased by the management body, the acquiring authority must identify whether or not the lessee has constructed improvements upon the affected land. If so, compensation is payable to the lessee. Where the management body has a joint arrangement with the lessee, or with the State of Western Australia, compensation may be payable in accordance with the terms of the agreement so that both the management body and the lessee will share the compensation payable following the taking of the land.

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10.2.1.5.

Compensation

MINING AND PETROLEUM RIGHTS AND INTERESTS Section 205 of the LAA provides that compensation may be payable for an interest in land held under any Act for mining purposes and that interest is taken. The compensation payable can only be claimed for actual loss sustained through damage to the mine or works connected to the mine. This suggests that compensation will only be payable in relation to an active mine that is compulsorily taken. Section 162 of the LAA further reinforces the view that compensation is only payable in relation to an active mine by providing that it is possible to take underground interests without paying compensation if “…mines, underground workings etc.…” are not injuriously affected. Despite this, it should be recognised that section 177(5)(c) of the LAA requires that the Taking Order, together with a compensation claim form is served on each holder of a mining or petroleum right in the land. Legal advice has been given in the past that the holder of a mining tenement under the Mining Act 1978 was an ‘occupier’ for the purposes of the Land Acquisitions and Public Works Act 1902, where such holder was in actual occupation of the land. As such they were entitled to claim compensation. The same principle may well apply under the LAA. Whether or not compensation is payable will be dependent upon legal advice or Court determination (whether the State Administrative Tribunal or otherwise).

10.2.1.6.

CONDITIONAL TENURE (FORMERLY CROWN GRANTS IN TRUST) Chapter 6 of this Manual provides information on conditional tenures granted under section 75 of the LAA. Conditional tenure land is fee simple land subject to “conditions” registered against the certificate of title. The “conditions” are such conditions (or restrictions) determined by the Minister, relating to the permitted use of the land. The land has been transferred either for nominal value, or for a discounted price; reflecting the restrictions placed on the land’s use, and the value to the community of the service provided on the land (e.g. aged persons’ home, or church). The State’s equity in the land consists of the difference between the land’s unimproved market value at the time of transfer, and the price paid by the recipient of the title for the land. Where a nominal price was paid, the State’s equity is 100%. Conditional Tenure land replaced “Crown Grants in Trust” formerly issued under section 33(4) of the Land Act 1933 (and similar provisions of preceding legislation) over reserved land, limiting the land’s use to a specific purpose. Conditions relating to conditional tenure land can only be removed pursuant to an application made to the Minister, together with payment to DoL of the State’s equity in accordance with section 75(4)(b)(i) or (ii) of the LAA. If the Minister agrees to this payment, the conditions and covenants registered against the certificate of title may be removed by a cancellation of the conditions lodged pursuant to section 15 of the LAA. Under section 75(7a) the Minister may, in prescribed circumstances and with the Treasurer’s prior approval, waive whole or part of this payment. No circumstances have been prescribed as yet (April 2002), and it is intended that section 75(7a) should be used very rarely, as circumstances justifying its use will be very limited. Reflecting the provisions of section 75, section 202(3) of the LAA provides that no compensation is payable in respect to the taking of conditional tenure land other than in respect to lawful improvements made on the land after transfer and/or any consideration paid for the transfer of the land. That is to say, holders of conditional tenures or Crown Grants in trust are not entitled to compensation for land taken from their title, if they were

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Chapter 10

granted the land for nil or nominal consideration; and can only claim compensation in relation to buildings on the land. Where a government agency takes conditional tenure land, it should compensate DoL for the unimproved value of that land. This is in accordance with both the LAA and Treasury’s “Transfer between Government Agencies” policy, under the Strategic Asset Management/Property Disposal Program.

10.2.2.

LIMITS TO PAYMENT OF COMPENSATION Other than the limits and exceptions specifically set out in relation to the various types of interests in Paragraph 10.2.1, compensation is only payable under section 202 of the LAA provided that it has not or would not have been payable under any other written law or instrument. If any act is taken under Part 9 of the LAA and that act could have been done under another written law or instrument, no compensation is payable under section 203 which would not have been payable if the act had been done under the other written law.

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Compensation

10.3.

REGISTRATION OF TITLE

10.3.1.

THE VESTING OF VARIOUS INTERESTS BY TAKING ORDER The LAA provides for the acquisition to be effected into the name of the acquiring authority by registration of a Taking Order. The single registration system (set out in detail in Chapter 2 of this manual) will apply to registration of all instruments under Part 9 of the LAA.

10.3.2.

THE IMPACT OF REGISTRATION PURSUANT TO A VOID TAKING ORDER As all dealings under Part 9 of the LAA are registered under the TLA, the principles of indefeasibility of title will apply. This raises the issue of what is the effect of registration of a Taking Order that is void. The issue of whether or not a void resumption instrument invalidates the resumption process was considered by Mr Justice Lee in Minister Administering the Environmental Planning & Assessment Act 1979 v. Hamilton (1983) 50 LGRA 180. Mr Justice Lee held that, on the assumption that the resumption was invalid on the ground that the notice of resumption did not express the purpose thereof, the defendants could point to no action or conduct on behalf of the acquiring authority which would give rise to any equity entitling them to have the land restored to them. In reaching this conclusion, Mr Justice Lee was persuaded by the fact that registration of title even pursuant to a void instrument conferred an indefeasible title and accordingly, no personal equity vested in the owners of the resumed interest by which he could obtain re-registration of the resumed interest in his name despite the fact that the registration took place following an instrument that was void. The consequences applied by this case suggest that an acquiring authority should, in all circumstances, abide strictly to the requirements set out in Part 9 of the LAA when seeking to compulsorily acquire land or an interest in land.

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10.4.

THE CLAIM

10.4.1.

WHO MAY LODGE A CLAIM FOR COMPENSATION? Any person who has a right title or interest in land or an interest in land that is taken or acquired under Part 9 of the LAA is entitled to compensation for that right title or interest from the acquiring authority: Section 202 of the LAA. This includes both primary (for example freehold land owners) and subsidiary interest-holders, such as lessees, mortgagees, etc. Similarly, any person who has suffered any damage or loss as a result of a notice of entry pursuant to Part 9 of the LAA and the land or interest in land entered upon is not subsequently taken, is entitled to compensation for that damage or loss from the acquiring authority: Section 203 of the LAA. Section 202 of the LAA sets out the persons that are entitled to compensation of land or interests in land taken under Part 9 of the LAA. Where the person entitled to claim compensation is deceased, that person’s executor or administrator may make a claim on behalf of the deceased’s estate: Section 208(1) of the LAA. Similarly, a claim on behalf of beneficiaries of trusts, wards or incapable persons may be made by their trustees or guardians: Section 208(2) of the LAA.

10.4.2.

TIME LIMIT FOR MAKING A CLAIM FOR COMPENSATION

10.4.2.1.

TIME LIMITS UNDER THE LAA Where a claim for compensation is made under section 202 of the LAA (by a person whose interest has been taken under Part 9 of the LAA) or section 204 of the LAA (by a management body who is entitled to compensation for the depreciated value of structures or improvements erected on the land), the claim must be made within 6 months from the date of registration of the Taking Order: Section 207(1)(a) of the LAA. Where a claim for compensation is made under section 203 of the LAA (by a person who has suffered damage or loss by reason of entry or occupation of land or removal of material under Part 9 of the LAA), the claim must be made within 6 months from the commission of the acts complained of: Section 207(1)(b) of the LAA. The Minister has the power to extend this time limit (whether it has expired or not – section 207(2)) where he or she is satisfied that the application is reasonable and has been made in good faith. When considering compensation for the loss of native title rights and interests it is appropriate that agreement be reached enabling the claim for compensation to be dealt with once native tile has been determined. In some circumstances agreements will be entered under the NTA establish compensation arrangements or defers the right of a party to later claim compensation under the LAA. Where the time limit or extension has expired, no action can be taken against the acquiring authority in respect of any claim for compensation.

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10.4.2.2.

Compensation

EXCEPTION STATE

WHERE THE CLAIMANT IS AN INFANT, INCAPABLE PERSON OR IS ABSENT FROM THE

Where a person entitled to compensation is absent from the State, is an infant or incapable person and the time limit for lodging a claim has expired, the acquiring authority must offer an amount in compensation and apply to the State Administrative Tribunal for a direction (see section 210 of the LAA) as to whether 

the offer is acceptable,



the claim should be determined by the State Administrative Tribunal or,



the claim should be assessed and moneys paid into the Supreme Court subject to section 249 of the LAA.

10.4.3.

THE CLAIM FORM

10.4.3.1.

WHAT IS A CLAIM FORM? The claim form is the form submitted by the holder of an interest in land taken under Part 9 of the LAA to the acquiring authority for compensation. The purpose of requiring a claimant to provide a claim form is to enable the acquiring authority to evaluate the claim and determine who has interests in the land so that they may be adequately compensated. The claim form must be made in an approved form as required under section 211 of the LAA. DoL Officers should refer to the approved claim Form LAA – 1026 entitled “Claim for Compensation”.

10.4.3.2.

CONTENTS OF CLAIM FORM The claim form must set out the following information as provided under section 211 of the LAA: 

The particulars identifying the land in respect of which the claim is made setting out the land description shown on either the certificate of title or the Crown title;



The nature and particulars of the claimant’s interest in the land (for example, as owner in fee simple, mortgagee, lessee, occupier etc.);



If the land or interest is charged or subject to a mortgage, lease, or subject to any easement, the particulars of the charge, mortgage, lease or easement including the dealing number for that document lodged with LANDGATE;



Each matter on account of which compensation is claimed, with particulars of the nature and extent of the claim setting out full details of each item claimed and giving full particulars of the grounds, nature and extent of each item claimed; and



The claimant’s full name and address for service.

Where the claim includes items other than monetary aspects of the claim (as may be made under section 212 of the LAA), full details of non-monetary compensation claimed in partial or total satisfaction of the compensation claim should be provided. For example, the claim may be by way of an exchange of land or the provision of goods or services. Where land is to be exchanged, the full land description as shown on the certificate of title or Crown title the subject of the exchange should be provided.

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Substantial compliance with the claim form has been held to be sufficient, and the fact that the form has not been fully completed will not mean that a claimant cannot still claim compensation. The specific facts of each case must be considered. 10.4.3.3.

SERVICE OF CLAIM FORM AND ALL RELEVANT DOCUMENTS Under section 213 of the LAA the claim and all relevant documents relating to the claim must be served on the acquiring authority in the manner set out in a Notice of Intention to Take, or where no Notice of Intention to Take has been issued, by delivery to the acquiring authority or by certified mail addressed to the Minister for Lands at DoL or her delegate. If the further and better particulars are not furnished within 60 days, or as extended by a Supreme Court Judge, the claim is time-barred, that is, it expires.

10.4.3.4.

REQUEST FOR FURTHER AND BETTER PARTICULARS Under section 214 of the LAA, where the claimant has not provided sufficient particulars of any matter in his or her claim form, the acquiring authority may request further details from the claimant by notice in writing within 30 days after receiving the claim form.

10.4.3.5.

ACQUIRING AUTHORITY MAY DISPUTE CLAIM If the acquiring authority disputes the claimant’s title to the interest in land, or part of the interest, the acquiring authority must serve a notice on the claimant in an approved form within 60 days after the service of the claim, or, where further particulars were requested, within 60 days after the particulars have been furnished: Section 216(1) of the LAA. DoL Officer should refer to the approved FORM LAA-1028 entitled “Notice of Dispute as to Title”. Under section 216 of the LAA, where a claimant has been served with a Notice of Dispute as to Title, he or she may apply to a Judge of the Supreme Court, after giving 8 days notice in writing to the acquiring authority, for an order – 

for a trial of any factual issues which may be necessary to determine the question of title: Section 216 (1)(a) of the LAA; and



that the Court gives an opinion on any question of law arising from the dispute as to his or her title to the interest: Section 216(1)(b) of the LAA.

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10.5.

DEALING WITH THE CLAIM

10.5.1.

OFFERS OF COMPENSATION Once a claim has been made and served upon the acquiring authority, then, subject to the acquiring authority not disputing the claim (in the manner provided in Paragraph 10.4.3), under section 217 of the LAA the acquiring authority has: 

90 days from the date of service of the claim,



90 days after the receipt of any further particulars sought by the acquiring authority from the claimant under section 214 of the LAA,

in which to examine the claim and prepare a report as to the value of the interest acquired and the damage sustained by the claimant by reason of the taking. Where a dispute arose as to the compensation claimed and the Supreme Court confirms the claimant’s title to the interest under dispute, the acquiring authority has 90 days after judgment of the Court to examine the claim and prepare a report as to the value of the interest claimed as confirmed by the Court and the damage sustained by the taking. As soon as possible after the preparation of a report, the acquiring authority must serve on the claimant an Offer of Compensation in an approved form: Section 207(3) of the LAA. DoL Officer should refer to Form LAA – 1007 - “Offer of Compensation”. Acquiring authorities should note that an offer made by an acquiring authority is an admission by the acquiring authority of the claimant’s title to the interest: Section 217(5) of the LAA. After an offer has been made and before a claim is settled in full, the claimant may require the acquiring authority to amend the claim only as to the amount claimed. This can only be done where proceedings have not commenced in or before the State Administrative Tribunal for a determination of the amount of compensation: Section 218 of the LAA. Claimants should note that they must reject the offer or amended offer of compensation within 60 days after service of the offer or amended offer. The notice of rejection must be in an approved form. If a notice of rejections is not given within that time, the claimant is deemed to have accepted the offer of compensation or amended offer: Section 219 of the LAA. Approved forms for the rejection of an offer of compensation may be obtained from DoL.

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Chapter 10

GENERAL SETTLING OF A COMPENSATION CLAIM If the claimant rejects the acquiring authority’s offer or amended offer of compensation and serves the Notice of Rejection of Offer form on the acquiring authority, the compensation is then determined by one of three different methods set out in Section 220 of the LAA: 

by agreement between the acquiring authority and the claimant;



by an action for compensation by the claimant against the acquiring authority under Part 10 of the LAA; or



by referring the claim to the State Administrative Tribunal in accordance with Part 10 of the LAA.

The most common is by agreement. 10.5.2.1.

BY AGREEMENT BETWEEN THE ACQUIRING AUTHORITY AND CLAIMANT Before litigation proceeds, the acquiring authority and the claimant should attempt to reach an agreement as to the compensation payable in respect of the taking and consider alternative assessments of the compensation payable.

10.5.2.2.

BY INSTITUTING AN ACTION FOR COMPENSATION IN AN ORDINARY COURT A claimant may commence an action for compensation against an acquiring authority in a court of competent jurisdiction to be heard and determined in the same manner as ordinary actions with ordinary rights of appeal on the amount of compensation awarded or to any question of law or fact or a mixture of both. No question of law or fact may be determined by a jury. Section 223 of the LAA enables an action to be instituted by a claimant in an ordinary court in only two instances: 

after it has rejected the acquiring authority’s Offer or amended Offer of Compensation in accordance with Division 3 of Part 10 of the LAA, or



the acquiring authority has failed to serve an offer of compensation on the claimant within 120 days after the relevant date: Section 221 of the LAA.

The relevant date is the latest of 

the date of service of the claim,



the day of service of any amendment to the claim, or



the day of compliance with any requirement for further particulars

or 

where the claimant’s title is disputed and the Supreme Court has upheld the claimant’s title in whole or in part, the Day of Judgment.

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Compensation

Where a claimant wishes to commence proceedings under section 223 of the LAA, the claimant must give the acquiring authority 30 days notice. The acquiring authority may apply to the Court for any other person claiming compensation in respect of the taking of any interest in that portion of land claimed by the claimant to be joined as a plaintiff to the proceedings. If such person fails to join as a plaintiff in the action within the time specified in the Court Order, that person is prohibited from ever litigating his or her compensation claim in an ordinary court or referring to the State Administrative Tribunal: Section 223 (4) and (5) of the LAA. The jurisdiction of the court in relation to the amount of the compensation claim and the type of claim is an important factor. Where the total compensation claimed in the case of a joinder of plaintiffs in a claim for compensation exceeds the jurisdiction of the court concerned, the matter may be referred by any party to a court of competent jurisdiction: Section 223(6) of the LAA. Where the title of the claimant to the interest is disputed, the proceedings under section 223 of the LAA should be adjourned until a judgment of the Supreme Court under section 216 of the LAA on that issue has been made: Section 223(7) of the LAA. Claimants should note that where an action for compensation is commenced in an ordinary court, the court can only determine the amount of compensation payable by the acquiring authority to the claimant in respect of the taking of the interest in land, having regard only to the provisions of Part 10 of the LAA and the matters prescribed in Division 5 (on assessing compensation) and section 256 (on awarding easements in lieu of compensation) of that Act. Where two or more persons are entitled to share the compensation, the court can only determine the amount payable to each person and the manner in which it is to be paid. The costs of the action will be at the discretion of the Court. 10.5.2.3.

BY REFERRING THE CLAIM TO THE STATE ADMINISTRATIVE TRIBUNAL As an alternative to instituting an action in an ordinary court, a claimant can refer his or her claim to the State Administrative Tribunal: Section 220 and 221 of the LAA. To do so, the claimant must serve on the acquiring authority notice of the appointment of an assessor (Form LAA – 1089 or 1090) together with copies of the assessor’s consent and declaration in an approved form: Section 224 of the LAA. If the acquiring authority has not appointed an assessor or settled an offer of compensation after 30 days of being served, the claimant may request the President of the State Administrative Tribunal to choose a consenting person: Section 224(4) of the LAA. More information on the constitution of the State Administrative Tribunal and the procedures to be followed is set out in Paragraph 10.6.

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Compensation

Chapter 10

10.6.

THE STATE ADMINISTRATIVE TRIBUNAL

10.6.1.

GENERAL The State Administrative Tribunal was established under section 7 of the State Administrative Tribunal Act 2004 and, in relation to compensation proceedings is dealt with generally in Division 4 Part 10 of the LAA sections 226-231. The LAA was amended to this effect by the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004.

10.6.2.

CONSTITUTION OF THE TRIBUNAL Under section 226 of the LAA, when dealing with compensation proceedings, the State Administrative Tribunal is to be constituted by a judicial member or a senior member who is a qualified person, and 2 assessors, one appointed by the claimant and the other, by the acquiring authority. The claimant and the acquiring authority may agree, in writing, that the claim be heard and constituted solely by a judicial member or a senior member who is a qualified person. Claims other than the claim for which the State Administrative Tribunal is constituted under Part 10 of the LAA to hear may be heard by the State Administrative Tribunal if agreed in writing by both the claimant and the acquiring authority: Section 229 of the LAA. Either party may appear personally before the Court, or by counsel: Section 39 of the State Administrative Tribunal Act 2004.

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Compensation

10.7.

ASSESSING COMPENSATION

10.7.1.

GENERAL Division 5 of Part 10 of the LAA deals with assessing compensation where land or interests in land are taken. Compulsory acquisition legislation in Australia is designed to ensure fair and just compensation. To clarify assessments of compensation and limit the criteria by which compensation is payable, the methodology for assessing compensation in Western Australia has been designed specifically to limit the assessment of compensation solely on the matters referred to in section 241 of the LAA. The court or the State Administrative Tribunal appear to be confined to the categories of actual financial loss and disturbance that can be identified in section 241 of the LAA.

10.7.2.

DATE OF ASSESSING COMPENSATION Where the interest is taken for a railway or other work authorised by a special Act, the value of the land is assessed on the first day of the session of Parliament in which the Act was introduced: Section 241(5) of the LAA. Where the interest is taken by agreement under section 168 of the LAA, the value of the land is assessed on the date of execution of the agreement unless otherwise provided in the agreement. Where the interest is taken in any other case, the value of the land is assessed on the date of the taking which is the date upon which the taking order was registered at LANDGATE.

10.7.3.

EFFECT OF REGISTRATION OF NOTICE OF INTENTION TO TAKE Where a NOITT was registered before the date of assessing compensation set out in Paragraph 10.7.2 and a transaction relating to the land was made between the registration of the NOITT and the date of assessing the compensation set out in that Paragraph which affected the value of the claimant’s interest, the Court or the State Administrative Tribunal shall have regard to the value of the interest assessed as at the date of assessing compensation set out in that Paragraph discounting the effect of that transaction: Section 241(3) of the LAA. Where any improvements were made to the land after the registration of a NOITT without the consent of the Minister, no regard will be had to the value of such improvements: Section 241(4) of the LAA. The exception to this is that the value of improvements is allowed in the case of a railway or other work authorised by a special Act. Where those improvements are made after the 1st day of the session of Parliament when that Act was introduced, but before the registration of the taking order. Such improvements will be allowed provided that the costs of the improvements do not exceed their actual cost: Section 241(5) of the LAA.

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Compensation

10.7.4.

Chapter 10

OTHER FACTORS TO BE CONSIDERED IN ASSESSING COMPENSATION Section 241(6) of the LAA provides for a list of other factors affecting the loss or damage sustained by the claimant that can be considered in an assessment of compensation pursuant to a compulsory acquisition of land or interests in land under the LAA. These factors are listed as follows:

10.7.4.1.



removal expenses;



disruption and reinstatement of a business;



the halting of building works in progress at the date when the interest is taken and the consequential termination of building contracts;



architect’s fees or quantity surveyor’s fees actually incurred by the claimant in respect of proposed buildings or improvements which cannot be commenced or continued in consequence of the taking of the interest; or



any other facts, which the acquiring authority, the court, or the State Administrative Tribunal considers it just to take into account in the circumstances of the case.

SEVERANCE AND INJURIOUS AFFECTION Where the fee simple in land is taken who is also the holder of adjoining land, the principles of severance and injurious affection are to be considered and regard is to be had to the amount of damages suffered by the claimant as a result of the severance of the land from the adjoining land or, due to a reduction of the value of that adjoining land by the public work on the land taken. The relevant enquiry is whether or not there has been a diminution in the value of the remaining land, caused by the compulsory acquisition. The loss due to injurious affection must result directly from the nature of, or the carrying out of, the purpose for which the interest in land was acquired. It should be noted that section 176(1) of the LAA provides that the claimant may, in certain circumstances, require the acquiring authority to acquire the remainder of the land if it is less than 1000 square metres in area. Section 241(7) of the LAA provides that where the value of any freehold land is increased by the carrying out of the public work, that increased value is offset against the amount of compensation that would be payable for any loss or damages suffered as a result of the severance or following any injurious affection to the adjoining land.

10.7.4.2.

SOLATIUM Where the land or interest is taken without agreement, payment for solatium limited to an additional 10% more than the amount otherwise awarded or offered can be made. Solatium is an expression used to describe an award of some amount to cover inconvenience and other intangible factors caused by compulsory taking of land. Solatium is usually paid in a lump sum and can be made in exceptional circumstances to cover such additional factors like disruption, nuisance, distress and inconvenience to the dispossessed party. To be payable, there must be a causal connection between the events that arose before the acquisition occurred and the acquisition itself that gave rise to a claim for solatium: Section 241(8) of the LAA.

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Compensation

10.8.

PAYMENT OF COMPENSATION

10.8.1.

WHEN SHOULD COMPENSATION BE PAID? Where agreement is reached between the claimant and the acquiring authority, compensation is usually paid in accordance with that agreement. It is usually appropriate to prepare an agreement to record the terms of the settlement of the claim. Legal assistance may be obtained to prepare a suitable agreement. Where compensation has been determined by a court of competent jurisdiction, compensation is usually paid upon issue of the court order. Where compensation is awarded by the State Administrative Tribunal, the decision of the Tribunal has effect immediately after it is given (section 82 of the State Administrative Tribunal Act 2004). The Tribunal may then make an order under section 87-89 of the State Administrative Tribunal Act 2004, for payment of compensation and other costs. The claimant may then enforce the order by filing the order in a court of competent jurisdiction, whereupon the order becomes an order enforced accordingly (section 85 of the State Administrative Tribunal Act 2004). In other cases, where a claim for compensation is still being negotiated, the acquiring authority may offer the claimant an advance payment pending settlement of the claim (section 248 of the LAA). Payment of such amount does not prejudice the rights of the claimant under Part 10 of the LAA. Section 167 of the LAA also enables the Minister to enter an agreement in relation to the payment of compensation with a person who requests the Minister to take interests to grant another interest – see Paragraph 10.2.1.

10.8.2.

TO WHOM SHOULD COMPENSATION BE PAID? There are a number of avenues for acceptance of compensation. An acquiring authority may pay compensation into the Supreme Court for a fair and equitable distribution of moneys. Until such time as the moneys are distributed in accordance with an order of the Court, the Principal Registrar of the Supreme Court must invest the moneys and pay the claimant annual proceeds of the rents and profits of the land.

10.8.3.

EASEMENTS OR OTHER LANDS AWARDED IN LIEU OF COMPENSATION Sections 255 and 256 of the LAA sets out processes whereby an acquiring authority and the State Administrative Tribunal or a Court may grant to the claimant an easement or other right, privilege or concession in relation to the land designated for the public work in part payment or full satisfaction of the compensation claimed by that person. The Minister has power under section 257 of the LAA, to grant to the claimant with his or her consent, any interest in Crown land available to be granted or disposed of in partial or full exchange of any compensation claimed by the claimant. However, in such a grant, the value of the interest and any monetary compensation must not exceed the amount which the Minister would have paid by way of compensation.

10.8.4.

OUT OF WHAT FUNDS SHOULD COMPENSATION BE PAID? Compensation is paid by the Minister out of moneys appropriated by Parliament for the public work in respect of which the claim for compensation arises: Section 258(a) of the LAA. Where compensation is money paid by the acquiring authority, then such compensation is usually paid out of the funds of the acquiring authority made available for such purposes: Section 258(b) of the LAA.

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CROWN LAND ADMINISTRATION AND REGISTRATION PRACTICE MANUAL

CHAPTER 11 GENERAL

TABLE OF CONTENTS 11.

GENERAL

11-1

11.1.

INTRODUCTION

11-1

11.2.

GENERAL PROTECTION FROM LIABILITY

11-2

11.2.1. GENERAL 11-2 11.2.2. RESPONSIBILITIES OF DOL OFFICERS UNDER THE LAW

11.3.

11-2

ABILITY OF INSOLVENTS, INCAPABLE PERSONS AND DECEASED PERSONS TO HOLD CROWN LAND

11-3

11.3.1. GENERAL 11-3 11.3.2. INSOLVENT PERSONS

11-3

11.3.3. INCAPABLE PERSONS

11-3

11.3.4. DECEASED ESTATES

11-4

11.4.

PROTECTION OF THE CROWN AND MANAGEMENT BODIES FROM LIABILITY

11-5

11.4.1. GENERAL 11-5 11.4.2. RISK MANAGEMENT

11-6

11.4.3. RISK MANAGEMENT ON DOL-MANAGED PROPERTY

11-7

11.4.4. RISK MANAGEMENT PROCEDURES

11-7

11.4.5. COMMON LAW DUTY OF CARE

11-11

11.4.6. LIABILITY OF THE CROWN

11-12

11.4.7. LIABILITY OF MANAGEMENT BODIES

11-12

11.4.8. LIABILITY OF THE CROWN AND MANAGEMENT BODIES IN RELATION TO PUBLIC ACCESS ROUTES

11-13

11.4.9. LIABILITY OF THE CROWN AND LOCAL GOVERNMENT IN RELATION TO PUBLIC ACCESS EASEMENTS

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General

11.5.

APPLICATION OF THE PRESCRIPTION ACT 1832

11-14

11.5.1. WHAT IS THE DOCTRINE OF PRESCRIPTION?

11-14

11.5.2. APPLICABILITY OF THE PRESCRIPTION ACT 1832 TO CROWN LAND

11-14

11.6.

CLOSURE OF RAILWAYS

11-15

11.6.1. GENERAL 11-15

11.7.

OFFENCES ON CROWN LAND

11-16

11.7.1. GENERAL 11-16 11.7.2. TYPES OF OFFENCES

11-16

11.7.3. CAMPING ON CROWN LAND

11-17

11.7.4. VEHICLES ON CROWN LAND

11-17

11.7.5. HARVESTING OF NATURAL FLORA

11-18

11.7.6. TIMBER AND FOREST PRODUCE ON CROWN LAND

11-18

11.7.7. INTERFERING WITH SURVEY MARKS AND SURVEYS

11-19

11.7.8. CONTRAVENTION OF CONDITIONS OF COVENANTS IMPOSED ON CROWN LAND

11-19

11.7.9. PENALTIES FOR OFFENCES ON CROWN LAND

11-19

11.8.

UNAUTHORISED STRUCTURES ON CROWN LAND

11-20

11.8.1. GENERAL 11-20 11.8.2. REMOVAL OF UNAUTHORISED STRUCTURES FROM CROWN LAND

11-21

11.8.3. PROFESSIONAL FISHERPERSONS’ STRUCTURES

11-22

11.8.4. DELEGATION UNDER SECTION 273 OF THE LAA

11-23

11.9.

SERVICE OF DOCUMENTS

11-24

11.9.1. GENERAL 11-24

11.10. REGULATIONS

11-25

11.10.1.

GENERAL

11-25

11.10.2.

FEES REGULATIONS

11-26

11.10.3.

REGULATIONS AFFECTING SURVEYS

11-26

11.10.4.

REGULATIONS ABOUT ADVISORY PANELS

11-26

11.11. APPROVAL OF FORMS

11-27

11.11.1.

APPROVAL BY DIRECTOR GENERAL DOL

11-27

11.11.2.

APPROVAL OF REGISTRATION FORMS WITH CONSENT OF REGISTRAR OF TITLES

11-27

11.12. REVIEW OF LAA 11.12.1.

11-28

GENERAL

11-28

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General

Chapter 11

11. GENERAL 11.1.

INTRODUCTION This Chapter covers the general provisions set out in Part 11 of the Land Administration Act 1997 (LAA) dealing with the miscellaneous yet important issues for Crown land administration in this State. Primary features of Part 11 include provisions relating to liability, land in closed railways, offences on Crown land, regulations and approved forms.

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Chapter 11

General

11.2.

GENERAL PROTECTION FROM LIABILITY

11.2.1.

GENERAL Sections 259 and 264 of the LAA deal with issues of liability. Further provisions in relation to liability will be found in sections 66 (dealing with public access routes) and 196(7) (dealing with public access easements). Section 259 makes provision for a person who is the Minister, a delegate of the Minister or a public service officer of the Department of Lands (DoL) to receive general protection from an action in tort relating to the doing of an act or the omission to do anything where that person has in good faith exercised or performed a function under the LAA. Section 259 does not however relieve the Crown from liability that it might already have in relation to the act or omission by the Minister, a delegate of the Minister or an officer of DoL.

11.2.2.

RESPONSIBILITIES OF DOL OFFICERS UNDER THE LAW It is very important for all government officers to be aware of their duty of care and to know the limits of their power, or risk the possibility of being “reckless” in the exercise of that power. The officer may personally be liable for a “reckless” exercise of that power. The High Court of Australia decision: Northern Territory and Ors v Mengel (1995) 129 ALR 1: introduced the concepts of “reckless indifference” and “ reckless disregard” to the test for misfeasance in public office. Officers should also be aware of section 46 of the Financial Administration and Audit Act, 1985. It is for these reasons that officers within DoL who purport to carry out functions under legislation must ensure that they abide by the requirements of the LAA, other written law and know and observe the limits of their power. Where DoL officers are unsure as to the level and extent of their authority and legal requirements, the officer should seek legal advice. It is important for DoL officers to appreciate that total reliance on section 259 of the LAA to relieve them performing a function in accordance with the LAA (or any other Act administered within the Department) will not necessarily relieve that officer from personal liability.

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General

Chapter 11

11.3.

ABILITY OF INSOLVENTS, INCAPABLE PERSONS AND DECEASED PERSONS TO HOLD CROWN LAND

11.3.1.

GENERAL An important part of any transaction involves the competency and capacity of persons under a legal disability to hold Crown land. Part 11 of the LAA expressly deals with some types of incapable persons. At common law, if all the elements of contract exist between two parties, the enforceability of the agreement may be affected if one or both of the parties lack capacity to contract or hold Crown land. The LAA deals with three main types of persons that lack capacity either totally or, to some extent at common law and sets out who may actually deal with the land on behalf of the incapable person.

11.3.2.

INSOLVENT PERSONS Any person who becomes bankrupt under the Bankruptcy Act 1966 and who is an insolvent under administration within the meaning of the Corporations Law, or is a corporation under receivership, administration, deed of arrangement or is being wound up within the meaning of the Corporations Law may only sell his or its interest to the person entitled to hold the land as trustee under the Bankruptcy Act 1966 or Corporations Law with the consent of the Minister for Lands: Section 261 of the LAA. The automatic vesting in the trustee or administrator etc. for the purposes of the Bankruptcy Act 1966 or the Corporations Law will only apply with the consent of the Minister having been obtained and given before the interest is transferred or sold.

11.3.3.

INCAPABLE PERSONS An incapable person for the purposes of section 262 of the LAA refers to an incapable person under the Mental Health (Consequential Provisions) Act 1996. If the holder of an interest in Crown land is declared to be an incapable person under the Mental Health (Consequential Provisions) Act 1996, that interest may be held by the person having charge of his or her estate with the consent of the Minister for Lands. However, that person must apply to the Minister in writing for permission to occupy the Crown land within 12 months after declaration of the holder of that interest as an incapable person. Failure to do so entitles the Minister to forfeit the interest under section 35 of the LAA. For more information on the forfeiture of interests, see Chapter 2 (Paragraph 2.11) of this Manual. Again, a precondition to the transfer of the interest from the deceased to his or her legal representative is that all unfulfilled conditions relating to that interest are fulfilled in trust and for the benefit of the persons entitles to that interest: Section 262(2) of the LAA. A precondition of the transfer of the interest from the incapable person to the trustee is subject to all unfulfilled conditions of improvements relating to that interest being fulfilled in trust for the benefit of the person entitled to the interest: Section 262(2) of the LAA.

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Chapter 11

11.3.4.

General

DECEASED ESTATES Under Section 262 of the LAA, where the holder of the interest in Crown land dies before the completion of the conditions of improvements relating to that interest, the Minister may consent to a legal representative completing the conditions for the benefit of the estate. Again, the legal representative must apply to the Minister for consent to occupy and complete the conditions within 12 months of the death of the holder of the interest. Failure to do so entitles the Minister to forfeit the interest under section 35 of the LAA. For more information on the forfeiture of interests, see Chapter 2 (Paragraph 2.11) of this Manual and Section 262(2) of the LAA. Where the interest in Crown land is granted for the purpose of enabling the holder to acquire a fee simple interest in that Crown land, then under section 263 of the LAA the Minister may consent to transfer the fee simple of that Crown land to the executor or administrator upon application by that executor or administrator of the estate of that holder. The fee simple interest in the land will form part of the deceased person’s estate and can then be dealt with accordingly.

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General

11.4.

Chapter 11

PROTECTION OF THE CROWN AND MANAGEMENT BODIES FROM LIABILITY

11.4.1.

GENERAL Approximately 36% of the State’s area is unallocated Crown land while another 37% comprises leased pastoral land, and a further 3% is other leases under the LAA. About 15% of the State’s area is reserved, but most of this is either conservation estate or land set aside for Aboriginal purposes. In the light of the large areas of land involved, it is foreseeable that there is a high exposure to the Crown for damages claims arising from this land. Claims may arise from such things as escaping wild fires, inadequately maintained improvements over some Crown land, damages claims from injury caused by persons using the facilities on that Crown land, uncontrolled weeds and vermin entering properties adjacent to Crown land. However the determination of the amount of damages may ultimately be a matter for a Court. These forms of liability may lead to extensive potential costs with no clear responsibility as to the person liable to pay these costs. As the manager of the Crown estate, (particularly those areas not subject to management by other agencies or lessees), DoL is responsible for identifying the issues involved and developing risk management plans and performing that management to limit liability of the Crown in foreseeable cases.

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Chapter 11

11.4.2.

General

RISK MANAGEMENT Treasurer’s Instruction (TI) 109 directs that: ‘The Accountable Officer or Authority shall ensure that there are procedures in place for the periodic assessment, identification and treatment of risks inherent in the operations of the department or statutory authority, together with suitable risk management policies and practices, and that these are documented in the accounting manual or other relevant policy manuals.” As a result, risk management has become a key focus in the public and private sector, and serves as a basis for sound business practice and service delivery. It is recognised as a key management discipline, closely linked to change management, with aims to minimise loss exposure and increase the potential for cost savings through the better management of resources. Public corporations have implemented organisational structures to manage risk. They share similar common elements such as: 

The creation of a formal Corporate Risk Management Policy;



Transparent and accountable Risk Management Processes based on appropriate standards of best practice;



A pro-active approach towards risk management that is not solely reliant upon reactive approaches to risk, such as insurance and financial compensation after the fact;



A dedicated senior management promoting the culture of risk management throughout the work environment;



Committees dedicated to monitoring and managing risk;



Management systems which systematically report and document upon the profile and treatment of risk; and



Culture change programs aimed at raising the awareness of staff towards risk management.

DoL aims to achieve best practice in the management of all risks associated with its business operations, especially those which possess the potential to adversely impact upon its ability to meet its obligations and duties towards the Government, its customers, staff, and the public at large. DoL has a corporate risk management policy. The policy requires identification of risks and development of appropriate management strategies for each significant risk. Pursuant to this corporate policy, risk treatment plans have been developed for a range of risks identified in relation to Crown land. These need to be kept current and observed by Crown land managers; with new treatment plans being developed for new risks as they are identified.

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General

11.4.3.

Chapter 11

RISK MANAGEMENT ON DOL-MANAGED PROPERTY DoL has risk management responsibilities in relation to unallocated Crown land (UCL), unmanaged reserves (UMR) and public works properties which it manages and leases. In this policy all such land and properties are referred to as “DoL-managed properties”. Management responsibility for UCL and UMR outside of the metropolitan area, regional centres and townsites has been transferred to CALM. Currently, CALM has restricted this responsibility to fire, weed and vermin control. Risk management is primarily the responsibility of parties who lease or manage Crown land – i.e. LAA lessees, management bodies, and agencies having statutory control or management of particular Crown land (e.g. local governments and Main Roads WA in relation to roads, port authorities in relation to Crown land in gazetted parts, and Public Transport Authority in relation to Crown land use for railways). Documentation of risk assessment, exposure and treatment plans is essential. The failure to show evidence of risk management procedures may be one matter to affect the liability of the State. If the State is found to owe a duty of care, such documentation may affect a determination as to whether the State has met its obligation under that duty.

11.4.4.

RISK MANAGEMENT PROCEDURES Risk Management procedures support DoL’s Risk Management Policy and Procedure Guide. Risk Management procedures to be followed in relation to DoL-managed properties are as follows: 11.4.4.1 DOL’S RISK MANAGEMENT PROCESS The DoL Risk Management procedures are based on the practice guidelines contained in the AS/NZ 4360/199: Risk Management standard, and is broken down into six steps. 

Establish the Context

Setting the scope and boundaries of the application of the risk management process involves resolving key issues:         

The policy, function, process or activity Strengths and weaknesses Major outcomes expected Threats and Opportunities faced Key stakeholders DoL’s accountability to stakeholders Factors in DoL’s internal and external environment Risks identified in previous reviews

Identify Risk

Key strategies in risk identification include:   

Examining sources of risk – which can include but are not limited to management activities, natural events, technology and legal environment. Focussing on new projects and areas of change that are new and have not previously been identified. Understanding the risks and likelihood of occurrence and consequences.

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General



Ensuring that managers and staff are knowledgeable.

Methods of risk identification can include interviews, surveys and questionnaires, brainstorming, SWOT analysis, incident, accident and injury investigation, history or failure analysis, scenario analysis, and an examination of past or personal experience.



Analyse Risk

There are four progressive stages in this step:     

Deciding the adequacy of existing controls Applying a likelihood rating Applying a consequence rating Determining the overall risk rating Evaluate Risk

This step is aimed at developing a prioritised list of risks for further action. Risk evaluation involves comparing the level of risk found in Step 3 and deciding whether risks will or will not be accepted.



Treat Risks

This step is separated into three parts:   



Risk treatment Evaluating risk treatment options Preparing and implementing treatment plans

Risk Treatment Options

Five acceptable options for treating risk include: 

Reduction of the likelihood of occurrence by policy or procedural improvements including:    



Reduction of consequences by policy or procedural improvements including:   



Quality programs Warning signs Preventative maintenance Supervision and training.

Disaster recovery planning Data backup First Aid Training

Transfer the risk to third parties, where permitted in law, through:   

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Agreement with suppliers Contracts and service providers Contractual arrangements with partners

11-8

General

Chapter 11



Retention of risk when:   



Avoid the risk by:  



No treatment plans are economic to implement Previous treatment has reduced risk to an acceptable level Management through routine procedures.

Recommending refraining from participating in the activity that generated that risk Withdrawing from current activities.

Evaluate and Select Treatment Options The cost of implementing Risk Treatment options must be compared to the anticipated reduction in the level of risk. Ideal strategies possess a high level of assurance of risk reduction but cost little. Risks within a high likelihood of occurrence are best managed by reducing the likelihood parameters, whereas a reduction in consequence parameters will best manage those risks possessing high levels of consequence.



Preparing and Implementing Treatment Plans Each action plan should document individual responsibilities, the expected outcome of treatments, budgeting and performance measures, and a mechanism for evaluation. Those officers identified as responsible for implementation must act in accordance with the Treatment Plan, and if after treatment is taken, there is a residual risk remaining, a decision should be taken as to whether to retain the risk or repeat the risk treatment program.



Monitor and Review Risk Action Plans Risk action plans developed must be monitored and reviewed, and reported to Senior Management every six months. A suitable method of review should be adopted and can include internal checking, program evaluation, reviews of branch strategies and processes, analysis of claims data and history, annual risk audit and self-assessments.



Document Risk Management Documentation of risk management is crucial to risk management and to meeting related accountability requirements.



Maintain Risk Registers A Branch Register is to be maintained by the Director Business Management Services, containing information on:       

All risks identified and serially numbered Decisions reached after analysis of the risk Assessment of risk Acceptance of level of risk by management or recommendation for further treatment Risk assessment updates and documentation based on the efficacy of Treatment Plans Ongoing monitoring and review Review and audit of the Risk Register.

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General



Regional Managers are to: 

Identify new or emerging risks, which could impact on any part of the operations of DoL, and report these promptly to the Director Business Management Services.



Ensure that an appropriate internal control framework is established to identify and manage all existing and potential key risks in their regions, providing assurance that each key business risk is being managed appropriately within the DoL framework.



Carry out risk assessments of DoL managed properties on a prioritised basis to identify risks and potential hazards; and to use this information as part of the basis for preparing and implementing maintenance and/or remediation programs on a prioritised basis.



Consider risk management issues during the process of inspecting DoL-managed properties and UCL as part of normal DoL activities.



Promptly investigate all reported accidents and injuries on DoL-managed property and implement appropriate risk mitigation measures.



Where accidents or injuries are reported, and there are other parties who may share responsibility for management of the same area of Crown land, or an immediately abutting area of Crown land, Regional Managers should take the initiative in coordinating efforts between such agencies and DoL. It is important that identical or complementary risk management procedures be implemented by agencies sharing the responsibility for a property, simultaneously where possible, and that the site and physical measures (such as signs) are inspected on a regular basis.



Use specialist expertise to identify and rate risks where necessary.



Provide appropriate training to ensure the staff under their management possess adequate knowledge of risk assessment, risk control and incident management procedures.



Where appropriate, provide signs to bring to visitor’s attention, those hazards associated with structures, facilities or natural attractions which are not reasonably obvious. (Where practicable, standard pictogram or symbol signs will be used for easy comprehension).



Obtain appropriate indemnity from organizations, individuals or their agents in connection with the use of DoL-managed property.



Establish and implement upward reporting mechanisms within their regions, which identify and report on: i. The frequency and severity of events resulting in claims against DoL; ii. Potential risks on DoL-managed property in their regions; iii. The assurance that the risks are now being appropriately managed; and, iv. The potential and actual costs of these risk control measures.



Report quarterly to the Director Business Management Services: i. ii.

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All key risks, their potential impact, the effectiveness of existing controls, and residual risk exposure; Compliance with related legislative requirements;

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iii. iv. 



Director Business Management Services is to: 

Provide the Executive Director Regional and Metro Services Division with an assurance that all key business risks are being managed effectively, and that relevant legislation and risk minimisation processes are being complied with. Instances of non-compliance are to be reported to the Executive Director Regional and Metro Services Division either immediately or as part of regular risk management reports, as the severity of the activity/event may dictate.



Regularly review the status of claims in respect of injury on DoL-managed properties, and through liaison with RiskCover and the State Solicitor’s Office, attempt to promptly finalise them on a professional basis.



Analyse the occurrences of injury and misadventure to determine the best options for a suitable balance between risk control and risk financing management strategies.



Advise the Executive Director Regional and Metro Services Division on budget requirements for implementing agreed risk management strategies on a prioritised basis.



Liaise with Legal Services in relation to any legislative changes needed to deal with legal problems associated with risk management on DoL-managed property.



Ensure preparation, maintenance and discharge of Risk Management Treatment Plans for all identified risks on DoL-managed properties.



Based on information provided by Regional Managers, ensure that DoL maintains a level of insurance cover appropriate to the level of risk and DoL’s exposure to liability claims.

Executive Director Regional and Metro Services Division is to: 

  

11.4.5.

Instances of current or perceived non-compliance with legislation; and Plans to mitigate or reduce risk exposure.

Based on the information provided by Director Business Management Services, ensure that the Department maintains a level of insurance cover appropriate to the level of risk and DoL’s exposure to liability claims in relation to DoL-managed Crown land and public works properties. Seek provision through the budgetary process, revenue retention proposals or other arrangements, and for sufficient funds to service agreed risk management strategies on a prioritised basis. Progress legislative change considered necessary to deal with legal problems associated with risk management on DoL-managed properties. Report to the Director General on a regular basis, particularly in relation to high-level risks.

COMMON LAW DUTY OF CARE Mr Justice Mason in the High Court of Australia decision of Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 459-461 stated:

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“Generally speaking, a public authority is under no statutory obligation to exercise a power comes under no common law duty to do so . . . . . But an authority may by its conduct place itself in such a position that it attracts a duty of care which calls for exercise of a power. A common illustration is provided by the cases in which an authority in the exercise of its functions has created a danger, thereby subjecting itself to a duty of care for the safety of others which must be discharged by an exercise of its statutory powers or by giving a warning . . .. There are other situations in which an authority’s occupation of premises or its ownership or control of a structure in a highway or of a public place attracts to it a duty of care . . .. And then there are situations in which a public authority, not otherwise under a relevant duty, may place itself in such a position that others rely on it to take care for their safety so that the authority comes under a duty of care calling for positive action. Such a relationship has been held to arise where a person, by practice or past conduct upon which other persons come to rely, creates a self-imposed duty to take positive action to protect the safety or interests of another or at least to warn him that he or his interests are at risk . . . ” Mr Justice Mason expanded on the function of reliance in his context as follows: “A public authority is liable for negligent failure to perform a function when it foresees or ought to foresee that: (a) the plaintiff reasonably relies on the defendant performing the function and taking care to do so, and (b) the plaintiff will suffer damage if the defendant does not take care. It is positive conduct on the part of the defendant or the plaintiff’s acting to his detriment which gives rise to specific, as distinct from general, reliance or dependence. Contributing conduct on the part of the defendant is an element in the vast majority of cases simply because without it the plaintiff’s reliance would fail to establish reasonable reliance.”

11.4.6.

LIABILITY OF THE CROWN It is on the basis of the above principles of the common law duty of care that the provisions in the LAA arise. Section 264(2)(a) of the LAA provides that any person who suffers any injury, damage or loss on Crown land that comprises an unmanaged reserve or is unallocated Crown land is limited only to those situations where the injury, damage or loss was suffered as a direct consequence of an act of the Crown or activity undertaken by the Crown. In other words, where a person suffers injury, damage or loss in an unmanaged reserve or over unallocated Crown land where the Crown has not undertaken any positive act or activity, the Crown cannot be held liable for such injury, damage or loss. This same principle of a negation of liability will apply where any Crown title for that land contains a statement warning of a possible hazard or other factors and a person suffers some injury, damage or loss as a result of that hazard or other factors. Under section 264(3) of the LAA, the liability of the Crown is also limited where Crown land comprises a managed reserve placed with a management body and that managed reserve is unimproved Crown land.

11.4.7.

LIABILITY OF MANAGEMENT BODIES The same principles in Chapter 1 (Paragraph 1.4.3) of this manual apply to management bodies where Crown land within a managed reserve is unimproved and the management body has taken no act or undertaken any activity that led to the damage, injury or loss suffered by a person.

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11.4.8.

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LIABILITY OF THE CROWN AND MANAGEMENT BODIES IN RELATION TO PUBLIC ACCESS ROUTES

Public access routes are a form of statutory easement created over Crown land in the nature of an easement under section 66 of the LAA granting legal access to members of the public to access remote sites of interests. See Chapter 5 (Paragraph 5.11) of this manual for more information on public access routes. Because of the nature of such access routes, section 66 of the LAA specifically restricts the liability of the Minister for Lands, the local government agency in the area of that public access route and any holder of an interest in Crown land through which that access route traverses from any liability to persons using that access route. It is clear that there is no liability on any person to construct and/or maintain a public access route nor does that access route make any occupier of the surrounding land liable for the purposes of the Occupiers’ Liability Act 1985. The creation of public access routes is purely for the benefit of the public who wish to use the route at their own risk: section 66(6) of the LAA. No action in tort will lie against any person who, in good faith, opens a public access route over an area of Crown land.

11.4.9.

LIABILITY OF THE CROWN AND LOCAL GOVERNMENT IN RELATION TO PUBLIC ACCESS EASEMENTS

Public access easements are created under section 196 of the LAA over private land (generally) and for the use and benefit of the public at large. Further information in this connection can be found in Chapter 8 (paragraph 8.33) of this manual. Given that these easements have a general public benefit, section 196(7) specifically limits the liability of the Crown and relevant local government, by stating that for the purposes of the Occupiers Liability Act 1985 they are not occupiers of the land over which a public access easement is granted.

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11.5.

APPLICATION OF THE PRESCRIPTION ACT 1832

11.5.1.

WHAT IS THE DOCTRINE OF PRESCRIPTION? At common law, it is possible to claim title by prescription. Title claimed may take the form of ownership or an easement. The basis of the doctrine of prescription is that if long enjoyment of a right over land is shown, a Court will usually strive to uphold the right by presuming that it had a lawful origin. Therefore, on proof of a fact of long enjoyment, the Court may presume that there was once an actual grant of the right claimed even though it is impossible to produce any direct evidence of such a grant. Prescription does not extinguish the landowner’s title, but creates an additional incorporeal right which is superimposed on the title of the servient tenement. Prescription is an exception to the doctrine of indefeasibility under the TLA.

11.5.2.

APPLICABILITY OF THE PRESCRIPTION ACT 1832 TO CROWN LAND Section 36 of the Limitation Act 1935 provides that title by adverse possession cannot be claimed against the Crown. In the past there has been some doubt as to whether prescriptive rights can be obtained against the Crown in Western Australia under the Prescription Act 1832. That doubt has now been removed by section 265 of the LAA. This section clarifies the position that no rights of prescription apply to the Crown or any Crown land in respect of any past, present or future claims. This complements the statutory principle in section 36 of the Limitation Act 1935 that title by adverse possession cannot be claimed against the Crown.

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11.6.

CLOSURE OF RAILWAYS

11.6.1.

GENERAL Section 266 of the LAA carries over the effect of the former section 118C(1) of the Land Act 1933. . This section specifically provides that where a special Act discontinues a railway or the line of the railway is deviated as a result of the provisions of the Act, the land becomes unallocated Crown land free from mineral and petroleum rights and free from any estates, rights, titles, interests, claims or demands. The Registrar of Titles will cancel all subject freehold titles to put section 266 into effect. It is presumed that the special Act will deal with the extinguishment of any remnant tenures, estates, rights and interests affecting the land and any mineral or petroleum rights. The powers and functions in Part VIIIA if the Land Act 1933 dealing with the alienation of closed roads, etc, particularly those in the former section 118C(2) relating to former railway land, are contained in section 87 of the LAA.

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11.7.

OFFENCES ON CROWN LAND

11.7.1.

GENERAL Section 267 of the LAA sets up a number of situations on Crown land where a person will commit an offence. A person commits an offence of the nature set out in Paragraph 11.7.2 where he does not obtain the permission of the Minister for Lands or does not have any reasonable excuse for the action. Reasonable excuse can be clearly established if there is a statutory requirement for the act or, there is a legal agreement enabling access or occupation of Crown land for the purposes complained of. There is a time limit of 10 years within which a complaint of an offence against Crown land may be made. This time limit applies despite section 51 of the Justices Act 1902: Section 267(4) of the LAA.

11.7.2.

TYPES OF OFFENCES Under Section 267(2) of the LAA, a person commits an offence where he does any of the following acts without the permission of the Minister for Lands and has no other reasonable excuse for the action: 

resides on Crown land;



constructs roads or tracks, or erects any structure, on Crown land;



clears, encloses, cultivates or causes or allows stock to graze on Crown land;



excavates Crown land or reclaims Crown land below high water mark;



collects, drills for or stores water on, or takes water from, Crown land;



removes from Crown land any plant (whether alive or dead) or such other thing of any kind as is prescribed;



deposits or leaves any thing of any kind on Crown land; or



discharges any firearm or other weapon on Crown land.

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11.7.3.

Chapter 11

CAMPING ON CROWN LAND Camping on Crown land without the authorisation of the Minister is an offence under section 267. Additionally, the Caravan Parks and Camping Grounds Regulations 1997 (administered by the Minister for Local Government) provide that a person may camp only at a site in a caravan park or camping ground, as appropriate, licensed under the Caravan Parks and Camping Grounds Act 1995; or in accordance with regulation 11 (penalty of $1,000) (Regulation 10). Regulation 11 provides that – (i)

a person may camp for up to 3 nights on land which he or she owns or has a legal right to occupy; or on any other land, if he or she has permission to do so from the person who owns or has a legal right to occupy the land; or

(ii)

a person may camp for up to 24 hours in a caravan or other vehicle on a road-side rest area; or

(iii)

a person may camp on reserved land subject to a management order, in accordance with the management body’s permission; or

(iv)

a person may camp on unallocated Crown land (UCL) or unmanaged reserve (UMR), in accordance with the permission of the Minister for Lands.

Regulation 11 then goes on to provide that a person may camp for longer than 3 nights on such land if he or she has written approval (and is complying with that approval) from the relevant local government, for a period of up to 3 months in any period of 12 months; or from the Minister for Local Government, for periods longer than 3 months in any period of 12 months. It appears that time limits specified by Regulation 11 and the requirement for approvals by the relevant local government and the Minister for Local Government do not apply to grants of permission by the Minister for Lands for camping on UCL or UMR.

11.7.4.

VEHICLES ON CROWN LAND Driving of vehicles across Crown land is not an offence under section 267. However, it is an offence in tort. The Control of Vehicles (Off-Road Areas) Act 1978 (CVORAA) deals with the use of unlicensed (i.e., not licensed for public road use under the Road Traffic Act 1976 (RTA)) vehicles on Crown (and other) lands. It is an offence for a person to drive an unlicensed, “off-road vehicle” in any area other than (a) on private land, by consent, or (b) a “permitted area” – areas gazetted under the CVORAA. It is also an offence under the CVORAA to drive any vehicle (i.e., including vehicles licensed under the RTA) in “prohibited areas” gazetted as such under the CVORAA.

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11.7.5.

General

HARVESTING OF NATURAL FLORA The harvesting of natural flora on unmanaged reserves and unallocated Crown land by CALM is permitted as it is seen as a part of the Crown’s management responsibilities over Crown land in relation to particular areas of interest and as being consistent with the Wildlife Conservation Act 1950. The Wildlife Conservation Act 1950 is administered by the Minister for the Environment and Heritage and provides a regime for the issuing of licences to take protected flora from Crown land. There is a memorandum of understanding in place between CALM and DoL in relation to this matter. CALM also has a statutory responsibility for the taking of wildflowers from Crown land and as such, there is no necessity for CALM to obtain approval from the Minister through DoL in relation to managing wildflower harvesting on individual areas of Crown land reserves.

11.7.6.

TIMBER AND FOREST PRODUCE ON CROWN LAND The Conservation and Land Management Act 1984 (CALM Act) and the Sandalwood Act 1929 provide that the Crown owns timber or “forest produce” on Crown land. The Department of Conservation and Land Management administers those rights. Under the CALM Act, the State retains timber rights in the following categories of Crown land: 

unallocated Crown land;



leased Crown land, but not conditional purchase leases;



Crown land reserved for “Timber” (whether with or without other reserve purposes);



Crown land the subject of a section 33(2) CALM Act management agreement;



Crown land reserved and/or dedicated to the purposes of the CALM Act;



Crown land reserved and placed under the management of a CALM Act body, pursuant to Part 4 of the LAA;



but not other forms of reserves.

Timber rights not specifically reserved to the Crown under the CALM Act nevertheless remain the property of the Crown, until the land is alienated. These rights may, however be made the subject of LAA tenure, for example, - licence, profit á prendre, management order condition.

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11.7.7.

Chapter 11

INTERFERING WITH SURVEY MARKS AND SURVEYS Section 268 of the LAA specifically provides that any person shall not wilfully and without lawful excuse destroy, mutilate, deface, take away or alter a survey mark placed, sunk or set up for the purposes of the LAA. There is a penalty for doing so of $1000 for the first offence and $2000 for a subsequent offence. A survey mark means a cairn, beacon, structure, trigonometrical station, post, peg, block, plug, tube, pipe, spike, pole or other survey mark of whatsoever material composed: Section 268(3) of the LAA. It is also an offence for wilfully and without lawful excuse, obstructing any person from carrying out a survey or placing, sinking or setting up a survey mark for the purposes of the LAA. The penalty for doing so is $1,000: Section 268(2) of the LAA.

11.7.8.

CONTRAVENTION OF CONDITIONS OF COVENANTS IMPOSED ON CROWN LAND Under section 269 of the LAA, it is an offence to contravene or to enter into a transaction of Crown land for the purpose of avoiding a condition or covenant imposed on Crown land. The penalty is $1000 and if the offence continues, a daily penalty of $100 also applies.

11.7.9.

PENALTIES FOR OFFENCES ON CROWN LAND Where any person commits any offence on Crown land, he or she will be liable (under section 267 of the LAA) to a penalty of $10,000 and, where the offence continues, a daily penalty of $200. In addition to any penalty imposed for an offence, under section 267(6) of the LAA any person convicted of that offence is liable to pay an amount by way of compensation or reimbursement for the reinstatement or rehabilitation of any Crown land together with any expenses that may be incurred for the cost of inspecting the land, harvesting of any crops or removal of any stock as a result of the offence.

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11.8.

UNAUTHORISED STRUCTURES ON CROWN LAND

11.8.1.

GENERAL There are large portions of unallocated Crown land that are unoccupied and unmanaged. Accordingly, such land is open to acts of trespass and squatting in areas that are not easily monitored. It was therefore necessary to introduce legislation to enable the Minister to remove unauthorised structures from Crown land so that such Crown land could be cleared for development. Sections 270-273 of the LAA set up statutory powers enabling the Minister for Lands to remove unauthorised structures from Crown land without paying compensation to any person. These sections replace sections 164A, 164AA and 164B of the repealed Land Act 1933 which were inserted in 1980. An unauthorised structure is defined in section 270 of the LAA to mean a structure that 

was either not authorised at the time it was erected under any Act or law or,



was originally authorised but has since ceased to be authorised by any Act or law.

Sections 270-273 of the LAA expand the sections of the repealed Act to enable the Minister to remove structures that may have been originally authorised, but the tenure under which those structures were erected have long since expired or, have otherwise been determined.

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11.8.2.

Chapter 11

REMOVAL OF UNAUTHORISED STRUCTURES FROM CROWN LAND The process to remove unauthorised structures from Crown land is set out in section 270 of the LAA. In summary the process is as follows: 

The Minister may advertise, in a newspaper circulating in the locality of the unauthorised structure, a direction to the specified owner or occupier of the structure to remove that structure and any fixtures, materials and objects in its vicinity within 90 days after the date of publication of the notice in the newspaper.



Within 14 days after the publication of the notice, the Minister must serve a copy of the notice on the owner or occupier of each alleged unauthorised structure to which the notice relates.



The notice is duly served if served personally on any person in occupation or apparent occupation of the alleged unauthorised structure, or is affixed to the alleged unauthorised structure in a conspicuous place.



The owner or occupier or person aggrieved may lodge an appeal pursuant to section 272(1) of the LAA under Part 3 of the Act within 21 days after that service or such longer period as the Minister permits.



An appeal can only be lodged on the grounds that the structure to which the notice relates is not an unauthorised structure.



If no appeal is lodged or, where an appeal is lodged, it has been dismissed, the unauthorised structure, contents and fixtures, and any material or objects remaining in the vicinity become the property of the Crown and may be removed, destroyed or disposed of as the Minister thinks fit. Compensation is not payable in respect of the removal, destruction or disposal of the unauthorised structure.



An extension of time to remove the unauthorised structures can be applied for by the owner or occupier under section 271 of the LAA.

Under Cabinet’s 1989 policy, the cooperation of local governments is enlisted in removal of structures from Crown land. Reserves are created over relevant areas and placed under the local government’s management for a limited term (generally 6 years), with power to lease for this period. Lease rents for existing structures are applied by the local government for management and rehabilitation of the land. Powers are delegated to the local government under section 273, to facilitate removal of the structure at expiry of the 6-year period. In one case, (Wedge and Grey) CALM has substituted for the local government.

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11.8.3.

General

PROFESSIONAL FISHERPERSONS’ STRUCTURES Transitional leases enable professional fishermen to remain in their shacks until designated development nodes are established. Once these development nodes are established, transitional leases will cease and professional fishermen will be offered longer-term leases in designated nodes. When building in a development node professional fishermen will be required to meet building requirements set down by the relevant local government authority. In using these coastal areas, fishermen must have regard for the coastal environment. This should be monitored and regulated by the local authority. Generally formalised tenure to a lease lot in a development node may only be granted to those with: 

a demonstrated, ongoing professional fishing involvement in the area in question; and



a professional fishing licence under the control of Fisheries WA; and



subject to conditions laid down by DoL and the relevant local government

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11.8.4.

Chapter 11

DELEGATION UNDER SECTION 273 OF THE LAA The delegation of powers and duties in relation to unauthorised structures is provided for in section 273 of the LAA. The delegation must be made by the Minister by a signed, written instrument of delegation. Under section 273(1) of the LAA, the delegate may be appointed by name or by office. If the person is appointed by their office, the person from time to time, holding that office, will have the delegation. The reasoning behind the ability to appoint a delegate by office is based upon section 53 of the Interpretation Act 1984. This section provides that where a written law confers a power or imposes a duty on a person to appoint a person to perform any function or be or do any other thing, that person may make the appointment either by name or by appointing the holder of an office by the term designating his office. Any such appointment shall be construed as the appointment of the person from time to time holding, acting in, or lawfully performing the functions of the office. Powers have been delegated to a number of local governments, and details are in the delegations register (on Notes). While in most cases delegations have been given for specified reserves, more general delegations (for example, in relation to all UCL and UMR in a local government area) are possible, and has been done in one case (Shire of Broome). Section 273 relates to powers and duties under sections 270 and 271. It does not cover general trespass powers under section 267. If powers in relation to section 267 are to be delegated, the provisions of section 9(1)(c) must be employed. Under section 9(1)(c), it is possible for the Minister for Lands to delegate its powers to a person or class of persons (for example, “local government chief executive officers”) who are prescribed.

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11.9.

SERVICE OF DOCUMENTS

11.9.1.

GENERAL The service of documents for the purposes of the LAA is contained in section 274 of that Act. For all intents and purposes, it is very similar to the service of notices provision in section 240 of the TLA. The need for similarity was to ensure consistency between the Crown and freehold in the requirements for service following the introduction of a single registration system for changes to interests in Crown land under the TLA.

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11.10. REGULATIONS 11.10.1. GENERAL The regulating making power in relation to Crown land matters is set out in sections 275, 276 and 277 of the LAA. In particular, while section 275 is the general regulation making power, section 276 relates specifically to regulating fees and section 276 deals with regulations affecting advisory panels that can be created under section 73 of the LAA in relation to the sale or lease of Crown land. The Land Administration Regulations 1998, gazetted on 27 March 1998, put in place some preliminary regulations as they affect certain procedures in the LAA to enable the LAA to be introduced. Those regulations relate specifically to some general procedures set out in Part 2 of the Regulations, specific regulations affecting the survey of Crown land in Part 3 of the Regulations and finally, regulations for the constitution and functions carried out by advisory panels in Part 4.

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11.10.2. FEES REGULATIONS A clear set of fees for all services undertaken on behalf of the Minister under the LAA is currently being developed. Until this occurs, any person dealing with Crown land should be aware of the following: 

Regulation 17 of the Land Administration Regulations 1998 provides for fees payable to the Director General in relation to services provided by DoL for and on behalf of the Minister. Those fees are set out in Schedule 1 of the Regulations.



It is important to note that where fees have not been assessed for certain services, the Regulations provide that the Minister may charge a fee, not to exceed the cost of providing the service, for the performance of any service for the purposes of the LAA.



In addition to the fees for services provided by DoL on behalf of the Minister for Lands under the LAA, fees are also payable to the Registrar of Titles for the registration of documents to effect changes in tenure and any other dealings affecting Crown land. These fees are set out in the Transfer of Land Regulations 1997 and are payable in respect of the lodgement, registration or recording of any dealing relating to Crown land executed after 30 March 1998 or any caveat made in respect of such dealing relating to Crown land. There are certain documents that are exempt from fees payable to the Registrar of Titles. These are set out in Schedule 2 of the Transfer of Land Regulations 1997. It should be noted that the lodgement of a dealing, plan or document by or on behalf of the Minister for Lands has been interpreted as being limited to a document where the benefit of the conveyance of land following the registration of the document is a benefit to the Minister for Lands and not where the benefit accrues to a third party. Simply because a document or dealing is lodged by the Minister does not automatically entitle that document to be exempt from registration fees under the Transfer of Land Regulations 1997.

As a general principle, all costs associated with any transaction affecting Crown land must be taken into account. This includes advertising costs. Where the beneficiary (being the proponent, acquiring authority or holding authority) of the transaction is a third party, that person should meet the costs associated with the transaction. DoL should only absorb any costs if the Crown, the State or DoL benefits from the transaction.

11.10.3. REGULATIONS AFFECTING SURVEYS The survey regulations set out in Part 3 of the Land Administration Regulations 1998 replace the regulations for the survey of Crown land that were previously set out in the Land (Guidance of Surveyors in the Department of Land Administration) Regulations 1961. These survey regulations incorporate the Licensed Surveyors (Guidance of Surveyors) Regulations 1961 and must be read with them. If these regulations are inconsistent with the Licensed Surveyors (Guidance of Surveyors) Regulations 1961, these regulations have priority over those general regulations: Regulation 23 of the Land Administration Regulations 1998.

11.10.4. REGULATIONS ABOUT ADVISORY PANELS Part 4 of the Land Administration Regulations 1998 sets out general provisions affecting the constitution of advisory panels that may be set up pursuant to Part 6 of the LAA.

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11.11. APPROVAL OF FORMS 11.11.1. APPROVAL BY DIRECTOR GENERAL DOL Section 278 was inserted into the LAA to enable all forms to be approved forms and not prescribed forms, as was the case under the Land Act 1933. This process of form approval is more flexible as forms can be approved and amended in the manner provided in section 278 of the LAA. Under the LAA, certain actions must be undertaken in an “approved form”. An “approved form” is one approved under section 278 of the LAA. The procedure for obtaining LAA form approval is referred to under procedure 3000-021998 in the Asset Management Directorate Quality Management System.

11.11.2. APPROVAL OF REGISTRATION FORMS WITH CONSENT OF REGISTRAR OF TITLES With the introduction of the single registration system in the LAA, there is a requirement that forms approved for use in relation to Crown land for registration purposes under the TLA are approved by the Director General DoL only after the Registrar of Titles has been consulted. This is to ensure that the approved forms meet the criteria and requirements under the TLA.

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11.12. REVIEW OF LAA 11.12.1. GENERAL As the LAA is a new piece of legislation, Parliament required that the Minister carry out a review of the operation and effectiveness of the Act within 5 years and 6 months after the appointed day. The appointed day is 30 March 1998. The Act is currently under review. Once the review is completed, the Minister will report to each House of Parliament. This requirement for a review is set out in section 279 of the LAA.

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CROWN LAND ADMINISTRATION AND REGISTRATION PRACTICE MANUAL

CHAPTER 12 REPEALS, TRANSITIONALS, SAVINGS AND VALIDATION

TABLE OF CONTENTS 12.

REPEALS, TRANSITIONALS, SAVINGS AND VALIDATION

12-1

12.1.

GENERAL

12-1

12.2.

SCHEDULE 2 (AS IT RELATES TO THE LAND ACT 1933)

12-2

12.2.1. GENERAL 12-2 12.2.2. EXCEPTIONS TO TRANSITION AND GENERAL APPLICATION OF THE LAA

12-2

12.2.3. INTRODUCTION OF A SINGLE REGISTRATION SYSTEM

12-4

12.3.

SCHEDULE 3 (AS IT RELATES TO PRE-LAND ACT 1933)

12-5

12.3.1. GENERAL 12-5

12.4.

INCOMPLETE DEALINGS UNDER THE LAND ACQUISITION AND PUBLIC WORKS ACT 1902

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12.5.

ROADS ACTIONS COMMENCED UNDER THE LOCAL GOVERNMENT ACT 1960

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12. REPEALS, TRANSITIONALS, SAVINGS AND VALIDATION 12.1.

GENERAL The introduction of the Land Administration Act 1997 (LAA) had the effect of, inter alia, repealing the Land Act 1933 (see section 281 of the LAA). Apart from the total repeal of the Land Act 1933, the LAA had the effect of repealing large portions of the Land Acquisition and Public Works Act 1902 and most of Division 1 of Part XII of the Local Government (Miscellaneous Provisions) Act 1960. Amendments to other legislation as a result of the introduction of the LAA are set out in the Acts Amendment (Land Administration) Act 1998. Parts 12 and 13 of the LAA deal exclusively with the savings, transitional and validation provisions of the Land Act 1933 and all Crown land related legislation pre-LAA, that is, the Land Act 1898 or an Act or regulation repealed by the Land Act 1898 or the Land Act 1933. This Chapter of the manual provides some general information about these savings and transitional provisions. As is common with repealing legislation, the effect of the repeal of the Land Act 1933 does not invalidate any act, matter or thing which was already in existence or in operation under the Land Act 1933.

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12.2.

SCHEDULE 2 (AS IT RELATES TO THE LAND ACT 1933)

12.2.1.

GENERAL Schedule 2 of the LAA sets out the transitional, savings and validation provisions related to the Land Act 1933 and how specific actions are dealt with in the transitional period. When reading any items in Schedule 2, the Interpretation Act 1984 must also be considered. In general, where a Crown process was brought forward from the Land Act 1933 into the LAA, the general principle is that the LAA will apply to any Crown action that was not completed under the Land Act 1933 as if the action or decision was one that had been made by the Minister under the equivalent provisions of the LAA. Despite this general principle, there are a number of processes under the Land Act 1933 that have not been carried forward into the LAA. Most of these processes relate to statutory processes under the Land Act 1933 that were outdated and would not apply in the new environment, but had to be retained. Where those processes were not carried forward into the LAA, the provisions of the Land Act 1933 continued to apply to those processes as if that Act had not been repealed.

12.2.2.

EXCEPTIONS TO TRANSITION AND GENERAL APPLICATION OF THE LAA As mentioned above, most Crown actions that commenced under the Land Act 1933 but were not finalised are taken to have commenced under the relevant provisions of the LAA. Part of the reason for this was to ensure that the single registration system introduced by the LAA will apply from the date of proclamation of the LAA (being 30 March 1998). However, there are a number of exceptions to this general principle. In view of this, where any Crown action is being contemplated in relation to a matter that may have commenced under the Land Act 1933, consideration must be made of the relevant items in Schedule 2 of the LAA. Examples of the types of Crown actions that were not carried forward into the LAA are set out below. Please note that the list below is not exclusive and where any Crown action of a transitional nature is being considered, you must refer to Schedule 2 of the LAA.

12.2.2.1.

FORFEITURE ACTIONS Where any lease or other holding or lands and improvements were liable to be forfeited under section 23 of the Land Act 1933 they could be forfeited under section 35 of the LAA. In this regard, the general principle of the LAA applying includes forfeiture actions commenced under the Land Act 1933. However, where such forfeiture action commenced under the Land Act 1933, the power of the Minister to waive any forfeiture and reinstate the lessee or licensee as of his former estate under section 23(2) and (3) of the Land Act 1933 remains in operation. There is no power to waive the forfeiture action once it has commenced under section 35 of the LAA. Similarly, where such forfeiture action commenced under the Land Act 1933, the Minister retains the power under section 24 of the Land Act 1933 to advertise the lease or licence for re-selection in a newspaper circulating in the area in which the land is situated.

12.2.2.2.

CLASS B RESERVES Class B reserves created under the Land Act 1933 have been saved under that Act: clause 14 of Schedule 2 of the LAA. There is no power in the LAA to create Class B reserves. See Chapter 4 of this manual for more details of reserve classification under the LAA.

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Where class B reserves are to be cancelled, the process set out in the Land Act 1933 apply and the Minister can only cancel a class B reserve by order under the LAA and also presenting a special report to both Houses of Parliament in accordance with section 31(2) of the Land Act 1933. 12.2.2.3.

LICENCES TO OCCUPY Licences to occupy, being a statutory licence issued to the purchaser of town or suburban lands under section 43 of the Land Act 1933 cannot be created under the LAA. Under clause 21 of schedule 2 of the LAA licences to occupy issued under the Land Act 1933 continued to exist as if the Land Act 1933 had not been repealed. Most licences to occupy usually last for a period of 2 years. Under the LAA, existing pre-LAA licences to occupy only continued to apply for the remaining period. There is no power in the LAA to extend Land Act licences to occupy. Existing pre-LAA licences to occupy can be endorsed on any qualified certificate of Crown land title.

12.2.2.4.

INCOMPLETE GRANTS OF LAND TO THE STATE HOUSING COMMISSION Section 45 of the Land Act 1933 empowered the Minister to grant town or suburban land to the State Housing Commission to be dealt with under the Housing Act 1980. Any decision made by the Minister in accordance with the repealed Act is saved and may be effected as if the Land Act 1933 had not been repealed: clause 23 of Schedule 2 of the LAA. There is no similar provision in the LAA. Under the LAA, the Minister’s powers to sell or otherwise dispose of Crown land is dealt with in accordance with Part 6 of the LAA. See Chapter 6 of this manual for further information on the Minister’s powers to dispose of Crown land.

12.2.2.5.

POWER TO INVITE APPLICATIONS 45B OF THE LAND ACT 1933

TO

PURCHASE TOWN

OR

SUBURBAN LAND

UNDER SECTION

Any power of the Minister to invite applications for the purchase of fee simple interest in any suburban or town land was not carried forward to the LAA. However any existing applications or any decision of the Minister to proceed with the invitation of such applications were carried into effect under the repealed Act: See clause 25 of Schedule 2 of the LAA. The old process of requiring the Minister to invite applications for the purchase of Crown land was not continued under the LAA. Instead, the conveyancing processes under the LAA were modernised to bring it in keeping with current freehold requirements of dealing with land. New requirements to dispose of fee simple interests in Crown land are now dealt with in accordance with Part 6 of the LAA. See Chapter 6 of this manual for further information on the Minister’s powers to dispose of Crown land. 12.2.2.6.

ALIENATION OF CLOSED ROADS UNDER SECTION 118F OF THE LAND ACT 1933 Where the Minister has issued a certificate under section 118F of the Land Act 1933 that identifies which parcel of land the closed road should be incorporated into, that certificate is saved and transitioned into the LAA and the procedure for completing the vesting of the land may be completed under the Land Act 1933 as if that Act had not been repealed: See clause 32 of Schedule 2 of the LAA. All other actions for the alienation, conveyance and amalgamation of closed roads can and should be completed in accordance with section 87 of the LAA.

12.2.2.7.

ANNUAL RENEWABLE LEASES An annual renewable lease was a lease issued by the Governor under section 33 of the Land Act 1933 for a period of one year. By their very nature and as a matter of practice, such

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leases were renewed annually on an ongoing basis. There was no clear statutory basis for such leases without the clear approval of the Governor for each renewal. Under the LAA, any lease continued from the Land Act 1933 except if issued as part of a State Agreement Act was not able to be renewed. As such, all annual renewable leases that were usually renewed would have expired, at the most, within one year of the introduction of the LAA. All annual renewable leases that have expired by virtue of clause 38 in Schedule 2 of the LAA must be renegotiated and new leases entered into. Where any leases are subject to mortgages by way of sub-demise or subleases, those interests by law, cease to exist and must be renegotiated again. This does not apply to leases granted pursuant to special State Agreement Acts. For more information on this topic, see paragraph 6.5.2.4.

12.2.3.

INTRODUCTION OF A SINGLE REGISTRATION SYSTEM

12.2.3.1.

GENERAL Before the single registration system was introduced, the former Department of Land Administration (now LANDGATE) created a recording mechanism known as Crown land records. This recording mechanism utilised the computerised searching facilities under the Torrens system of land registration while trying to set up a one-page record of all actions affecting a particular parcel of Crown land. Crown land records, being an administrative device only, needed to be saved and transitioned across to the LAA to ensure that all the work that had already been undertaken in setting up such a system was not lost. See Chapter 2 of this manual for more information on this. Clause 44 of Schedule 2 of the LAA saved and transitioned all Crown land records compiled before the repeal of the Land Act 1933 into qualified certificates of Crown land title.

12.2.3.2.

TRANSITIONAL PERIOD For the purposes of introducing a registration system for all land in this State, a period of time was required to ensure that all interests and rights affecting parcels of Crown land could be registered or recorded during this period. However, a time limit was needed to ensure that the recording of interests and rights was carried out. A 5 year transition period was set up so that any transaction or dealing that was not registered or an interest affecting a parcel of Crown land was not recorded by way of a caveat or otherwise against a Crown title during the transition period, was void as against a prior registered dealing. With the 5-year transitional period having now expired, standard registration fees are charged for those documents created pre-LAA. For more information on this transitional period, see Chapter 2 of this manual.

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12.3.

SCHEDULE 3 (AS IT RELATES TO PRE-LAND ACT 1933)

12.3.1.

GENERAL Amendments to the LAA by section 45 of the Land Administration Amendment Act 2000 inserted a new Schedule 3 into the LAA. Schedule 3 contains transitional provisions in relation to various matters and Crown land tenures created under “pre-1933 legislation”. “Pre-1933 legislation” is the Land Act 1898 or an Act or regulation repealed by the Land Act, 1898 or the Land Act 1933. Legal review of the LAA identified the need for these transitional provisions to remove any doubts caused by apparent inadequacies in the transitional provisions in the Land Act 1933. Section 283 of Part 13 of the LAA defines the terms “land reserved” and “pre-1933 legislation” for the purposes of Schedule 3. This new Schedule 3 of the LAA corresponds, in essence, with clauses 14 to 17 of Schedule 2 of the LAA, so that interests and dealings in Crown land under pre-Land Act 1933 may be dealt with under the LAA.

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12.4.

Repeals, Transitionals, Savings and Validation

INCOMPLETE DEALINGS UNDER THE LAND ACQUISITION AND PUBLIC WORKS ACT 1902 Transitional provisions in relation to incomplete actions initiated under provisions of the Land Acquisition and Public Works Act 1902 (LAPWA) (now the Public Works Act 1902) revoked by the Acts Amendment (Land Administration) Act 1997 are found in sections 200 and 201 of the LAA. Generally speaking, these provisions are limited. Section 200(1) provides that if a notice of intention to resume made under section 17(2)(b) of the LAPWA was still current at the date the LAA commenced operation, it continued in force until expiry of the 30 day period specified by section 17(2)(e) of that Act, and taking could then proceed under the LAA. Section 200(2) provides that, subject to section 200(1), an incomplete procedure commenced under the LAPWA could continue and be completed as if the LAPWA had not been repealed. Section 200(3) provides that any court proceedings commenced prior to the LAA’s commencement in relation to a former owner’s rights in relation to land compulsorily taken or resumed land, including an appeal, may continue as though the LAPWA provisions remained in force. The effect of this provision is that although owners’ rights in relation to resumed land have been substantially changed by the LAA, a court action in process as at 30 March 1998 may continue to deal with a former owner’s rights as they existed under the LAPWA. Section 201 preserved delegations existing under sections 5A and 5B of the LAPWA. In fact, the effect of this provision was limited. Replacement delegations were put into place under sections 159 and 160 of the LAA.

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12.5.

Chapter 12

ROADS ACTIONS COMMENCED UNDER THE LOCAL GOVERNMENT ACT 1960 Section 66 of the Acts Amendment (Land Administration) Act 1997 (AALAA) repealed sections 285, 286, 287, 288A, 288B, 289, 290, 291, 292, 293 and 294A of the Local Government Act 1960 (LGA 1960); now the Local Government (Miscellaneous Provisions) Act 1960), and deals with public roads. It also provides that where an action had been commenced but not completed under those repealed sections as at the LAA’s commencement, it may be completed as though those sections had not been repealed by the AALAA. Section 67 of the AALAA repealed section 297A of the LGA 1960. Section 67 of the AALAA similarly provides that any action commenced under section 297A of the LGA 1960, dealing with closure of private roads, could be completed as if that section had not been repealed. One effect of these provisions is that the relevant purchaser may still lodge closed road alienation certificates issued under the Land Act 1933 for registration.

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CHAPTER 13 CONTAMINATED SITES ON CROWN LAND

TABLE OF CONTENTS 13.

CONTANIMATED SITES ON CROWN LAND

13-1

13.1.

INTRODUCTION

13-1

13.2.

CONTAMINATION OF CROWN LAND IDENTIFICATION, REMEDIATION AND MANAGEMENT

13-12

13.3.

CLASSIFICATION AND NOTICES

13-13

13.4.

REMEDIATION OF CONTAMINATED SITES

13-15

13.4.1. EXEMPTIONS

13-5

13.5.

ORPHAN SITES

13-16

13.6.

IDENTIFICATION OF CONTAMINATION ON CROWN LAND

13-17

13.6.1. IDENTIFICATION

13-7

13.6.2. FORMER EXPLOSIVES DEPOT SITE

13-7

13.7.

LIABILITY IN RELATION TO CONTAMINATION ON CROWN LAND

13.7.1. TRANSFERRING LIABILITY

13.8.

RECEIVING LAND INTO THE CROWN ESTATE/DOL CONTROL

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13. CONTAMINATED SITES ON CROWN LAND 13.1.

INTRODUCTION The Contaminated Sites Act 2003 (CSA) was proclaimed in December 2006. The CSA imposes significant responsibilities on parties causing contamination and on owners of contaminated land. The CSA binds the Crown, and limits the extent to which responsibility for (potentially) contaminated lands can be transferred to other parties. The Minister for Lands is bound by the requirements of the CSA. It will be the responsibility of the Minister to report to the Department of Environment and Conservation’s (DEC) Chief Executive Officer (CEO) any known or suspected contamination on Crown (or other government) land under the control of the Department of Lands (DoL). The Minister must also comply with the notice of classification given by DEC’s CEO in relation to the land so reported.

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13.2.

Contaminated Sites on Crown Land

CONTAMINATION OF CROWN LAND IDENTIFICATION, REMEDIATION AND MANAGEMENT The CSA will bind the Crown. The Minister for Lands may be held to be responsible for a contaminated site in any of three capacities:



As owner of the site;



As a contributor to the contamination of the site; and



As agent for the State.

The CSA (in effect) defines an “owner” of Crown land to be:



A management body, in respect of a reserve.



A vestee, in respect of Crown land vested or dedicated under an Act (eg. The Port Authorities Act 1999).



A local government or Main Roads WA in respect of a dedicated road.



The Minister for the Environment, in respect of orphan sites acquired under the CSA.



The Minister for Lands, in respect of all other Crown land.

This definition of “owner” is critical when considering responsibility for (potentially) contaminated Crown land. The CSA provides that if:



An owner of land; or



A person who suspects they have caused or contributed to contamination

Knows or suspects contamination of a site and fails to report it, that person commits an offence. Therefore if the Minister for Lands is the owner of the land and “suspects” that the land may be contaminated, the suspected contamination must be reported to DEC’s CEO to avoid committing an offence.

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13.3.

CLASSIFICATION AND NOTICES Within 45 days of receiving a report, DEC’s CEO will classify the site as one of the following:



Report not substantiated



Possibly contaminated – investigation required



Not contaminated – unrestricted use



Contaminated – restricted use



Remediated for restricted use



Contaminated – remediation required



Decontaminated

The owner of the site will receive written notice of the classification from DEC’s CEO. Where a site is classified as “contaminated – remediation required” notice is given to each person considered responsible for remediation. Notice of classification can be in the form of:



A CSA Part 4 notice:- (a clean up notice, investigation notice or hazard abatement notice),



A Certificate of Contamination Audit, or



Any other written notice.

It is an offence not to comply with any notice given by DEC’s CEO. Notices are binding on any person to whom they are given. DEC’s CEO must register a memorial against the title of the land:



Which is classified as:



Contaminated - remediation required;



Contaminated – restricted use;



Remediated for restricted use;



Possibly contaminated – investigation required;



For which a Part 4 notice has been given;



On which a charge has been placed as part of a transfer of responsibility for remediation.

Where a memorial is registered against the title, a Part 4 notice becomes binding on each person who becomes the owner of the land. Two types of memorials might be registered – one where the land can be dealt with despite the memorial, and one where the land cannot be dealt with unless the memorial is withdrawn.

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An investigation notice will set out the action required to investigate, monitor and assess a site. Therefore, if the Department of Lands reports a site which it suspects is contaminated, and DoL have not carried out any investigation, as owner of the land, the Minister for Lands (through DoL) may be required to investigate (if DEC’s CEO serves an investigation notice on DoL). A clean-up notice can only be issued in respect of a site classified as “contaminated – remediation required”. Therefore, the Minister for Lands is only likely to receive a clean-up notice if this classification of a site is given. This is unlikely until an investigation of the site is carried out. A Part 4 notice requires the person on whom the notice is binding to obtain an auditor’s report on compliance with the notice. DoL Managers will need to arrange this. A hazard abatement notice is given by DEC’s CEO if he or she considers that there is an immediate and serious risk to human health or the environment. Failure to comply with a notice is an offence (maximum penalty $500,000). Under the CSA’s guidelines, both the auditor’s charges and DEC’s charges are payable by the person carrying out the action, regardless of whether it is voluntary or not. Therefore, if the Minister for Lands is served with an investigation notice or a cleanup notice, the Minister will be responsible for payment of both the auditor’s charges and DEC’s costs. Where other agencies are served with a notice, they will be responsible for these costs.

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13.4.

REMEDIATION OF CONTAMINATED SITES The State is responsible for remediation to the extent that, amongst other things:



The contamination is a result of a direction given or an action carried out by a public authority;



The person responsible cannot be identified, found or is insolvent; or



No one else is responsible.

Other grounds are set out at section 29 of the CSA. The State will be the agency which is deemed to be, or by statute is primarily, responsible for the actual contamination (eg. DoIR in relation to mining activities causing contamination). A person is only responsible for contamination to the extent that that person caused or contributed to the contamination after commencement of the CSA, or for an unlawful action before the commencement of the CSA. LandCorp is the State’s remediator. Where contamination is shown to exist on Crown land, LandCorp will undertake any remediation action it sees as appropriate, whether at the expense of the agency which caused the contamination, or with funds provided by the Department of Treasury and Finance, or by DEC from its Contaminated Sites Management Fund.

13.4.1.

EXEMPTIONS Within two years of the commencement of the CSA, an owner of land may make a disclosure statement to DEC’s CEO, disclosing any contamination of the land of which the owner is aware. The CEO may request further information upon receiving the disclosure statement. On receiving the disclosure statement, the CEO must give an exemption certificate in respect of the site if, in the opinion of the CEO:



The land is contaminated;



The contamination was not caused or contributed to by the action of the owner;



The owner did not fail to prevent the contamination of the land; and



The land was contaminated at the time the owner became the owner of the land and the owner did not know or suspect that the land was contaminated.

An owner of a site classified as “contamination – remediation required” is then exempted from responsibility for remediation. The DEC has advised that it does not propose to give exemption certificates to government agencies.

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13.5.

Contaminated Sites on Crown Land

ORPHAN SITES The CSA defines an “orphan site” to mean all, or part, of a site which has been determined to be contaminated and needing remediation, and for which the State has assumed responsibility because:



No one else is responsible;



The responsible person cannot be found or made to assume responsibility; or



The responsible person is insolvent.

The CSA provides for the creation of a Contaminated Sites Management Fund, financed out of appropriation, proceeds of sale of orphan sites, and other moneys collected under the Act. The fund may be used for investigation and remediation of land, which the State is responsible for. While LandCorp will undertake remediation of orphan sites, DoL may be asked to take on the role of “holding in the name of the State” land to be remediated, and to be responsible for non-saleable land once it is remediated. The CSA enables orphan sites to be compulsorily acquired for remediation – for instance, where they are held in freehold by a person who is unable to, or refuses to, undertake remediation. The Minister for Lands would need to use powers under the LAA to take land on behalf of LandCorp, with DoL preparing and submitting the relevant documentation. In absence of express agreement for DoL to hold, such land should be directly vested in LandCorp, in freehold, rather than being vested in the State and revested as Crown land.

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13.6.

IDENTIFICATION OF CONTAMINATION ON CROWN LAND

13.6.1.

IDENTIFICATION Under section 12 of the CSA, DEC’s CEO may approve a program for the identification and reporting of sites. This is primarily to address those companies and government agencies like DoL with very large landholdings. The CSA will provide a 6-month period from the Act’s commencement for land management agencies (such as DoL) to develop and submit to DEC a procedure to identify potentially contaminated sites under their management and a program for dealing with such sites in accordance with the CSA. The procedure, and timeframes for its implementation, will need to be agreed by DEC. It is intended that DoL’s procedure will have the following elements: 





It will be confined to land which is currently DoL’s responsibility – 

UCL, UMR



Crown land leased by DoL to other parties, and



Properties acquired for public works, which DoL, is presently managing;

It will focus on the land which is likely to attract a higher priority, if it were to be contaminated, having regard for factors such as 

Proximity to active townsites, by popular density



Likelihood and potential severity of contamination



Potential for leaching into the external environment



Probability of DoL liability.

It will be limited by the extent to which historical data is readily available.

As sites on Crown or other government land under DoL control are identified as potentially contaminated, each DoL Manager will be responsible for reporting to DEC (Managers to negotiate with DEC, with a view to limiting costs and effort). A person dealing with sites covered by an approved program in accordance with the program does not commit an offence if those sites are not reported within 21 days (after the 6-month grace period), but failure to comply with the program is an offence (max penalty $250,000). The CEO may amend the program (eg change the sequence in which sites are to be identified) but cannot make the program more onerous without the person’s agreement. Accordingly, there needs to be a commitment to programmed treatment of contaminated lands on UCL. The CSA recognises, in principle, that an agency which was responsible for an activity which resulted in contamination, should be responsible for any actions under the CSA.

13.6.2.

FORMER EXPLOSIVES DEPOT SITE The Contaminated Sites Regulations 2004 will provide that unexploded ordnance (UXO) does not come under the mandate of the CSA – unless there is contamination resulting from the storage of explosives.

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DoL should not permit disused explosives reserves or land leased for storage of explosives to be returned by DoIR to DoL control, without appropriate safeguards. If the reserve is to be returned, full site reports must be provided by DoIR outlining:



Any potential contamination of the reserve/s;



Any dangers known to exist on the reserve/s; and



Any security required in respect of the reserves.

Comments on each report should be sought from the Fire and Emergency Services Authority (FESA) or other agency having the responsibility for coordinating State policy in relation to UXO. If the reserves are to be sold or leased, a memorial under s.17 of the LAA should be registered against the relevant CLT outlining past usage and hazards. DoL should not accept responsibility for the administration of leases of reserves that have been leased to other parties by the DoIR, without due consideration to the above points.

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13.7.

LIABILITY IN RELATION TO CONTAMINATION ON CROWN LAND

13.7.1.

TRANSFERRING LIABILITY The CSA provides for the transfer of liability in relation to contamination under particular circumstances.

13.7.1.1.

LIABILITY FOR REMEDIATION Where the CSA refers to a “person responsible for remediation”, it includes and means all people responsible for remediation. The only sites required to be remediated under the Act are those sites classified contaminated – remediation required. The CSA limits the extent to which the liability for contamination can be transferred. This applies to sales or other dispositions of land (including issue of management orders over reserves or dedications of roads) which have the effect of transferring liability for remediation. In order to transfer liability for remediation, there must be:



Written agreement by the transferee purchaser/lessee to take on responsibility, and



Approval by DEC’s CEO to the agreement. The CSA sets out the requirements for applying for that approval, and these include that there be a statement or belief (by the Minister for Lands) that the transferee has sufficient financial ability to carry out the remediation.

Therefore, if a contaminated Crown site is to be sold in freehold, and if the purchaser agrees, a transfer of the responsibility for remediation from the State to that purchaser could occur. However, this is subject to the agreement of DEC’s CEO and subject to the Minister for Lands providing the above details. 13.7.1.2.

LIABILITY FOR CONTAMINATION GENERALLY An owner of contaminated land must, within 14 days before finalising the relevant transaction, disclose to the potential new owner, mortgagee, lessee, or management body (in relation to a management order over a reserve, or to a dedicated road) written details of the contamination (in prescribed form) including a copy of any certificate of contamination audit that may have been issued, in relation to land classified as:



Contaminated – remediation required;



Contaminated – restricted use;



Remediated for restricted use; or



Land in respect of which a notice under Part 4 of the CSA has been given and in respect of which a memorial is registered.

It is an offence to fail to disclose that the land is contaminated (max penalty $250,000). The affected new owner can also take civil action against the owner for the failure to disclose as a breach of statutory duty.

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13.7.1.3.

Contaminated Sites on Crown Land

SUSPICION OF CONTAMINATION ONLY The CSA does not address the transfer of the responsibility for sites which are suspected as contaminated, but which have not been investigated. The CSA only refers to transfer of responsibility once it has been established that remediation is required. It may be extremely difficult for an owner or polluter of land to contract out of his or her responsibility to investigate and remediate contaminated land except under section 30 of the CSA. Even if responsibility can be transferred in these circumstances, it would only operate between the Minister for Lands as vendor, and the purchaser of the land – it would not release the owner’s liability otherwise under the CSA, once it is proclaimed. Regardless of whether contaminated sites are transferred or not, it is therefore likely that the State will be responsible for investigation and remediation. However, DoL should also consider whether there is a moral ‘public interest’ obligation upon the Minister for Lands to investigate possible contamination before disposing of, or leasing the site to a member of the public. The possible contamination should be looked at on a case-by-case basis. It is strongly arguable that it is not appropriate for DoL to transfer or lease out a Crown site that is likely to be contaminated, before an investigation has been carried out. At the very least, the purchaser/lessee must acknowledge that the site may be contaminated and that they enter into possession at their own risk.

13.7.1.4.

DISPOSING OF INTERESTS IN CROWN LAND DoL Managers need to ensure contaminated Crown land is not transferred or leased to other parties, without clear knowledge on both sides and appropriate contractual statements and warnings on Titles. If a contaminated site is proposed to be sold in freehold, and if the purchaser agrees, a transfer of the responsibility for remediation from the State to that purchaser could occur. This is subject to the agreement of DEC’s CEO, and subject to the Minister for Lands believing that the purchaser has sufficient financial assets to carry out the remediation. Also, the site must have already been classified by DEC’s CEO. The CSA also requires that at least 14 days before completion of a transfer, lease, mortgage or management order issue (in relation to a reserve), or dedication (in relation to a road), each party is to be given a written disclosure of the contamination, in relation to land that has been classified as:



Contaminated – remediation required;



Contaminated – restricted use;



Remediation for restricted use; or



Land in respect of which a notice under Part 4 of the CSA has been given and in respect of which a memorial is registered.

A copy of the disclosure is also to be given to DEC’s CEO. There is a penalty of $250,000 for breach of this requirement. 13.7.1.5.

LEASING OF DISCONTINUED RAILWAYS Any contamination on former railway land returning to DoL as a consequence of a Discontinuance Act and s.266 of the LAA remains the responsibility of the Public Transport Authority (PTA).

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Land returning to the State as a result of expiration of leases or termination of leases will be subject to inspection to ensure that any use or alterations to the land are not in any way hazardous or contaminating. The continuing responsibility of the PTA for any contamination of the land, resulting from railway operations, needs to be noted by DoL Managers, when considering leasing proposals.

13.7.1.6.

SECTION 17 MEMORIAL Before any sale or leasing of a contaminated site occurs, a memorial under s.17 of the LAA should be registered against the relevant Crown land title. Under section 17(2) of the LAA, the Minister for Lands can endorse a statement on a certificate of Crown land title, to which an interest has been or is to be granted or entered into under the LAA, warning of hazards or other factors affecting or likely to affect the use or enjoyment of that land. Therefore, a warning of possible contamination can only be endorsed on the title if it is a hazard which will or is “likely to affect the use or enjoyment” of that land. Unless it is likely that the site is contaminated, a memorial under s.17 of the LAA cannot be registered against the title. In addition, a memorial under s.17 of the LAA can only be registered over a Crown land title if an interest has been, or is to be, granted under the LAA. If a memorial is registered against the title, under s.17, there will be an obligation on DoL and the Minister for Lands to report suspected contamination of the property under the CSA. This is because the Minister for Lands would have to “suspect” that a site was contaminated in order to register a s.17 memorial. Once an owner “suspects” that it is contaminated, that owner is obliged to report the suspected contamination under the CSA. After DoL has provided a report under s.11 of the Act, there is no obligation on DoL to carry out any further investigation of the site unless required to do so by DEC’s CEO However, full disclosure of all available information regarding possible contamination of a site should be given to any potential purchaser or lessee. In addition, any potential purchaser or lessee should be made aware of the provisions of the Act and their potential liability under the Act. If the Minister for Lands elects to proceed with any sale (or long-term leases) of contaminated Crown sites before the sites are classified under the CSA, each sale or lease contract entered into should contain an indemnity clause. However, even if the indemnity clauses are inserted into any contract, it is unlikely that the Minister for Lands will be able to contract out of any responsibility that she has once the CSA has commenced. This is a matter that could only be finally decided by a Court of law.

13.7.1.7.

OTHER LIABILITY Even if the Minister for Lands is the person responsible for remediation of the site for the purposes of the CSA, the liability as between the Minister and the holder of any interest in the land may still need to be considered. Recent advice from the State Solicitor’s Office (SSO) is that the provisions of the CSA will not affect the contractual arrangements between persons, or preclude the view that a person responsible for remediation may make contractual provisions for indemnification with another party. In these circumstances, it would be necessary to consider the terms and conditions of any contractual arrangement. While a person who causes or has contributed to contamination before the commencement of the CSA is only responsible for remediation where the contamination was caused by an act done without lawful

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Contaminated Sites on Crown Land

authority, there may nonetheless be liability under the contractual arrangement. While the Minister for Lands might remain the person responsible for remediation for the purposes of the CSA, this would not affect the obligations of the interest holder arising under that contractual arrangement. Each case will need to be considered on its merits, and should be referred for consideration by the Legal Services Branch.

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13.8.

RECEIVING LAND INTO THE CROWN ESTATE/DOL CONTROL The Auditor General has advised in his Report No.6 of November 2002 that DoL needs to purposefully manage all future land acquisitions, revestments, or vestings in the Crown in order to avoid unknowingly receiving contaminated land from other parties. Land may revert to the State and to DoL responsibility through a number of ways, including:



Acquisition for public works



Surrenders (land no longer required by a party)



Exchanges (Crown land for freehold land)



Revestments



Forfeiture of tenures for non-compliance with use conditions or for rent defaults



Forfeiture of tenures for non-payment of rates under the Local Government Act 1995



Forfeiture or revestment under special Acts (eg. Confiscation of Crimes Proceeds, default under Government mortgages)



Vesting pursuant to s. 20A of the Planning and Development Act 2005, for recreation and other purposes, consequent to the subdivision of freehold land



Dedication as roads consequent to the subdivision of freehold land



Expiry of leases



Revocation of management orders in relation to reserved land



Revocation or cancellation of a vesting or a dedication, under legislation such as the Government Railways Act 1904, Port Authorities Act 1999, or Marine and Harbours Act 1981

DoL procedures should ensure that when land is returned to DoL (eg. a management order is cancelled or the land is revested), the responsible/transferring authority provides information as to the past use of the site and advises whether or not it considers that potentially contaminating activities might have occurred on the site. Diligence needs to be exercised by DoL Managers where they have the opportunity to control or condition the way in which land becomes DoL responsibility. This means adopting one or more of the following (where feasible):



Disclaimers under Mortgages (Commonwealth legislation).



Obtaining statements (statutory declarations) by present owners that the land is not contaminated, or has not been used for purposes which may cause contamination; or alternatively, statements (statutory declarations) on the nature and extent of (potential) contamination.



Where there seems a strong chance that contamination may have occurred, undertaking further investigations and obtaining statements (statutory declarations).

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Contaminated Sites on Crown Land



Inspecting the land.



Requiring indemnities.



Refusing to take ownership of the land.



Looking for alternatives – e.g., not forfeiting, where an option might be to force a lessee to comply with lease conditions, and to remediate the land

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STATE LAND REGISTRATION AND ADMINISTRATION PRACTICE MANUAL GLOSSARY OF TERMS A – B – C – D – E- - F – G – H – I – J – K – L – M – N – O – P – Q – R – S – T – U – V – W – X – Y - Z

ACQUISITION ORDER A particular Ministerial Order under section 52 of the Land Administration Act 1997 (LAA) for the acquisition of alienated land. Where the alienated land forms a private road, the Acquisition Order has the effect of closing that private road and extinguishes all rights, interests and encumbrances on the land and revests the relevant land as Crown land under the LAA. An Acquisition Order is Form LAA- 1000 and will have effect upon registration by the Registrar of Titles under the TLA. ALIENATED LAND Land held in freehold CALM Department of Conservation and Land Management (now referred to as the Department for Environment and Conservation) CALM ACT Conservation and Land Management Act 1984 CALM RESERVES CALM Reserves for means Class A nature reserves, conservation parks, national parks and nature reserves as defined under the Conservation and Land Management Act 1984 CHAIN OF TITLE The documentary title to a parcel of land established by the production of all deeds and other documents that can establish an entitlement by the applicant from a chain of conveyances or ownership from the original grantee or a combination of both, in the order of their dates of execution. back to top

COMMISSIONER or COMMISSIONER OF TITLES A statutory position created under the Transfer of Land Act. CLOSED ROAD A road may be closed in a number of different ways. Once disposed, the land the subject of the closed road may be disposed to adjoining landowners by sale and amalgamated into their land. CLT Certificate of Crown land title created and registered under the Transfer of Land Act. CPCWA Constitutional Powers (Coastal Waters) Act 1979

Crown Land Administration & Registration Practice Manual July 2013

CROWN LAND Referred to as “State land” in Western Australia. Is defined as all land, not being alienated land, within the limits of the State of Western Australia that form the airspace, seabed and subsoil of marine waters and coastal waters defined as defined under the Commonwealth’s Coastal Waters (State Powers) Act 1980. CROWN LAND RECORD (CLR) An administrative record that used to be maintained by LANDGATE in Crown land administered under the Land Act 1933 for the recording of certain interests and tenures issued under the Land Act 1933 between 1989 and 30 March 1998. The Record was created in the same format as a certificate of title for defined portions of Crown land. CLRs differ from a certificate of title in that the Crown was always shown as the registered proprietor and no duplicate CLRs were ever created. All CLRs have now been transitioned under the LAA as QCLTs. CROWN LEASE Any lease issued under an Act or regulation repealed by section 2 of the Land Act 1898, the Land Act 1898 or the Land Act 1933 for a period of 5 years or more and registered under the TLA. CROWN GRANT A deed of grant issued in the name of Her Majesty, granting to the proprietor a defined portion of Crown land in fee simple. Crown grants are no longer issued under the Land Administration Act 1997 (LAA). Instead of issuing Crown grants that may then be registered with the Registrar of Titles and known as a Certificate of Title, freehold land is conveyed by the issue of a Transfer under the LAA and the registration of a Transfer document lodged with the Registrar of Titles under the Transfer of Land Act. CROWN TITLE Generic term used for all types of land titles for Crown land. back to top

CTC Crown Title Creation Subsection within Registration of Interests Section of LANDGATE. DEALING This is a specific term used for registration of matters affecting Crown land. When used as a noun, it means: - A document once registered, that creates, effects, cancels or alters interests in, or status orders in respect of Crown land; or A Ministerial Order. DEPOSITED PLAN This is a plan of subdivision (A2 or A3 size) in relation to Crown or freehold land that has been deposited with the Registrar of Titles under the Transfer of Land Act. DOMINANT TENEMENT The land or interest in land (for example leasehold interest), which enjoys the benefit of the easement. DoL Department of Lands DPS The Crown land Document Processing System is a multi user Lotus Notes application for creating and lodging Crown documents plus recording additional information for automated customer reports.

ENCUMBRANCES Are usually endorsed in the Second Schedule of certificates of title or certificates of Crown land title. Encumbrances are defined in section 4 of the Transfer of Land Act (TLA) as including all prior estates Crown Land Administration & Registration Practice Manual July 2013

interests rights claims and demands which can or may be had made or set up in to upon or in respect of the land, and a dealing that is registered under the TLA. FREEHOLD LAND Land held in fee simple, whether absolute, conditional or otherwise, of that land. GPS Global Positioning System is a satellite based navigation and surveying system providing any suitably equipped user with position information on a continuous basis, anywhere in the world. LAA Land Administration Act 1997. LA&PWA Land Acquisition and Public Works Act 1902 LAR Land Administration Regulations 1998. LANDGATE Department of Land Information

MANAGEMENT ORDER A statutory order passing obligations for care, control and management of Crown land in accordance with the terms set out in the Management Order. A management order is not an interest in land, but it can grant to the management body the ability to grant interests in land where such power is set out in the management order. back to top

MANAGEMENT BODY An entity being the holder of a management order granted by the Minister for Lands under the Land Administration Act 1997 and endorsed on a certificate of Crown land title or qualified certificate of Crown land title. MANAGEMENT BODY/ORDER LEASE A lease issued or granted by a management body over a reserve where that management body has power to lease in its own legislation and/or as specifically set out in the Management Order. MINISTERIAL ORDER A generic form of order that is made, in an approved form for registration with the Registrar of Titles, by the Minister for Lands under the Land Administration Act 1997 (LAA). Under section 13 of the LAA, a ministerial order is not subsidiary legislation within the meaning of the Interpretation Act 1984. NOITT A notice of intention to take, formerly known as a notice of intention to take or to resume, is a notice issued under section 170 of the Land Administration Act 1997 and served on a landowner and any person affected by land the subject of a proposed public work. The notice provides interest holders with the opportunity to formally object to the taking of the land for the public work. NTA Native Title Act 1993 (Commonwealth)

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PARs Public Access Routes PAWs Pedestrian Accessways PRIMARY INTEREST HOLDER Also defined as “Proprietor” in section 4 of the Transfer of Land Act and is the holder of the interest in Crown land issued by the Crown under the Land Administration Act 1997 (LAA) or other written law. For example: 

A local government body holding a management order issued by the Minister under the LAA of a reserve created under the LAA is the primary interest holder of that reserve tenure.



A port authority vested with Crown land under the Port Authorities Act 1999 by the Governor, is the primary interest holder of that parcel of Crown land.



A lessee of a State lease issued by the Minister for Lands under the LAA is the primary interest holder of that leasehold interest in Crown land.

PRIVATE ROAD A private road is freehold land (for example an alley, court, lane, road, street, thoroughfare or yard on alienated land) over which persons have a right of entry and access to adjoining properties. This can include a right of way created under section 167A of the TLA. It is shown on a plan or diagram deposited or shown in an instrument lodged with the Registrar of Titles. PSLA Petroleum Submerged Lands Act 1967. PUBLIC UTILITY SERVICES Defined in section 3(1) of the LAA and means drainage, electricity, gas, sewerage, telephone or water services or such other services as are prescribed for the purposes of this definition. Regulation 3(1) of the Land Administration Regulations has prescribed the services supplied by a telecommunications network to be a public utility service. QCLT Qualified Certificate of Crown land title. back to top

QSCLT Qualified Subsidiary Certificate of Crown land title. REGISTRAR or REGISTRAR OF TITLES A statutory position created under the Transfer of Land Act. REQUISITIONS Written notice made by the Registrar of Titles requiring correction to documents lodged for registration. Under the written notice, the customer is required to amend the documents within a specified time. Requisitions are issued pursuant to section 192 of the Transfer of Land Act. Crown Land Administration & Registration Practice Manual July 2013

RESUMPTION ORDER Gazettal of resumption pursuant to former legislation section 17 Public Works Act, section 33 Land Acquisition and Public Works Act. ROAD Any road that is set aside and used by the public and has been dedicated under the Land Administration Act 1997 or any other Act, or at common law. The absolute property in a road is vested in the name of the Crown. ROWs Rights of way RSB Registration Services Branch of LANDGATE in Midland Square, Midland. This Branch is one of several Branches within LANDGATE and has the responsibility for the registration of all land under the Torrens system of Land Registration in the State of Western Australia under the Transfer of Land Act. The Registrar of Titles heads this Branch. SCLT Subsidiary Certificate of Crown land title SERVIENT TENEMENT The land which is burdened by the easement. This may include Crown land where the Minister for Lands has approved the granting of that easement. SMARTPLAN SmartPlan Spatial Viewer is the digital replacement of LANDGATE’s analogue public plans. back to top

SMARTREGISTER This is a project undertaken by LANDGATE to convert all existing paper based certificates of title (original and duplicate copies) and original certificates of Crown land title and Qualified certificates of Crown land title into a digital title which will replace the existing paper title and creates a digital title register and a system of online digital processing. This process commenced on 11 December 2000. SSLA Commonwealth of Australia Seas and Submerged Lands Act 1973. STATE LEASES A lease of Crown land granted by the Minister for Lands under the Land Administration Act. It does not include other types of leases over Crown land that are granted by other Government agencies or statutory authorities, for example: management body/order leases being leases granted by management bodies over Crown reserved land. STATUS ORDER A type of Ministerial Order that does not create an interest in land - a Ministerial order that creates a form of statutory tenure, for example: an Order creating a reserve, an Order classifying a reserve or a class A reserve, an Order placing the care, control and management of a reserve with a management body or an Order dedicating or closing roads. TAKING ORDER A taking order, formerly known as a Resumption Order, can be issued by the Minister or any statutory body with power to issue taking orders under section 177 of the Land Administration Act 1997.

Crown Land Administration & Registration Practice Manual July 2013

TLA Transfer of Land Act 1893 PDA Planning and Development Act 2005 TENURE Tenure means the manner of possessing or holding Crown land for a specific purpose or purposes, for example: reserve tenure, road tenure. TRANSITIONAL PERIOD This is a period of 5 years from 30 March 1998 enabling all dealings in relation to Crown land to be registered or recorded under the Transfer of Land Act. Any interest holder who has failed to register his interest or record his claim to that interest within the 5-year period of time will lose priority against a prior registered interest. Where there is a conflicting registered interest, that prior unregistered interest will be void. Failure to register that interest within the 5-year Transitional Period will not automatically void that interest. That dealing will still be valid and enforceable in a Court of Law and may still be registered at any time after that 5-year period subject to any prior registered interests. UNALLOCATED CROWN LAND Formerly known as vacant Crown land is Crown land that is not subject to any interest (other than Native title interests under the Native Title Act 1993) and which is not reserved or declared or otherwise dedicated under the Land Administration Act 1997 or any other Act. VG Valuer General VS Valuations Services - Landgate WAPC Western Australian Planning Commission, a statutory body corporate and agent of the Crown in right of the State, established under section 4 of the Western Australian Planning Commission Act 1985. back to top

Crown Land Administration & Registration Practice Manual July 2013