Posted on June 25, 2017 by

An Overview of the Crown Land Legislation Amendment Act 2017

The Crown Land Legislation Amendment Act 2017 (‘CLLA’) was assented to on 17 May, 2017. The majority of the CLLA Act will commence on the day when the Crown Lands Act 1989 is repealed by the Crown Land Management Act 2016. The CLLA creates a new Crown Land regime, consolidating and updating six different pieces of legislation, some of which date back to the late 19th century.

Key changes in respect of Crown Roads

Schedule 3 of the CLLA proposes a number of amendments to the Roads Act 1993 (‘The Roads Act’) to make further provision in respect of Crown roads and public roads. Section 32B defines a number of terms including ‘notifiable authority’. A ‘notifiable authority’ includes such authorities as Transport for NSW, Roads and Maritime Services (‘RMS’) and Commissioner of Fire and Rescue NSW.

Closure of Council Roads

Sections 38A -38F are new provisions which govern the procedure for closing of council owned roads by the council itself and removes the need for the Minister to undertake the closure of public roads. Section 38A sets out detailed procedures authorising a council to propose closure of a public road if the road is not reasonably required as a road for a public purpose, the road is not required to provide continuity for the existing road network and (if the road provides a means of vehicular access to particular land) that another road provides the necessary lawful access to the land.

Notification and advertising of council’s proposal to close a public road is required and at least 28 days is to be allowed for submissions to be made.

In the event that a ‘notifiable authority’ objects to the proposed closure of a public road, council may lodge an appeal with the Land and Environment Court against the objection. On appeal the Land and Environment Court may either affirm the objection or set it aside. A road cannot be closed unless the objection is withdrawn or set aside by the Court. A classified road also cannot be closed without the consent of RMS.

Council after consideration of any submissions, by notice published in the gazette, may close the public road. On publication of the notice to close the public road, the road ceases to be a public road and rights of passage and access are thereby extinguished. Further section 38E(2) provides that the land comprising the former public road remains vested in the council and, if vested in the Crown remains vested in the Crown as Crown Land.

There are appeal rights to the Land and Environment Court for owners of adjoining land and notifiable authorities in respect of closure of a public road by a council.

Repairs and maintenance of Crown roads

New provisions are also proposed to be included as sections 108- 110 of The Roads Act to enable the Crown Lands Minister to issue directions requiring a person who uses a Crown road to undertake specified action to repair or maintain the road if the roads authority is satisfied that the road is not generally used for access and the person is someone that will benefit from the use of the road.

Section 108 (2) sets out the requirements that a direction must stipulate. There is also scope for the roads authority to authorise government sector employees, contractors or other agents to enter the land and carry out the specified works in the event that a person the subject of the direction fails to comply. The roads authority may recover its costs for repairs or maintenance from the person who was given the direction.

Section 110 provides a mechanism for contributions to be sought for repairs and maintenance from a person who uses the Crown road, rather than issuing a direction on the person to carry out work under section 108.

Functions in relation to Crown roads and Surplus Crown Land

There are new provisions to simplify sale and disposable of Crown roads. Sections 147,148 and 151 of The Roads Act will be repealed and will be replaced by sections 152A – 152J.

There will be no need to close a Crown road, in order to dispose of the Crown road. Notification and advertising of the proposal to sell or dispose of a Crown road are covered in section 152D.

Easements, licences, permits or consents will also be able to be granted in respect of Crown Roads under The Roads Act provided the grant is not inconsistent with existing rights of access.

Next Steps

It is anticipated that the new legislation will commence in early 2018. Prior to this, regulations supporting the CLLA are currently being prepared and are proposed to be out on public exhibition in mid-2017 for comment.