Expansion of types of leases and licences that Council managers can grant over pre-POM Crown land

Local councils who are Crown land managers can now grant more types of leases and licences over Crown land that they manage pending the adoption of a plan of management (‘POM’) for that land under the Local Government Act 1993 (‘LG Act‘). 

Since the full commencement of the Crown Land Management Act 2016 (‘CLM Act‘) on 1 July 2018, local councils who are Crown land managers have been required (except in limited circumstances) to manage that land as if it were classified as ‘community land‘ under the LG Act. Under the LG Act, community land must be managed in accordance with a POM made under the LG Act.

Councils are required to adopt a new POM for Crown land they manage as soon as practicable and before 30 June 2021. The period of 3 years from 1 July 2018 to 20 June 2021 is known as the ‘initial period‘.

There are certain exceptions to the requirement for a council to manage Crown land as if it were ‘community land‘ and in accordance with a POM. Clause 70 of the Crown Land Management Regulation 2018 (‘CLM Regulation‘) provides that during the ‘initial period‘ and until a new POM is adopted, council managers can grant certain short-term licences and leases, despite the fact that to do so would otherwise not comply with their obligation to manage the land as community land in accordance with a POM.

Those types of short-term licences and leases were originally limited to:

  • short term licences not exceeding 1 year of a kind that can be granted by a Crown land manager under s2.20 of the CLM Act (this includes, for example, licences for advertising, camping, catering, entertainment, environmental protection, exhibitions, markets and shows),
  • renewal of existing leases for a term not exceeding 21 years if there are no additional permitted uses of the land, and
  • granting of new leases for a term not exceeding 21 years if there was a lease in force over the land immediately before 1 July 2018 and if there are no additional permitted uses under the new lease.

Clause 70 of the CLM Regulation was amended on 15 February 2019 to expand the types of leases and licences that can be granted during the ‘initial period‘ before a new POM is adopted. The list now covers:

  • leases and short-term licences described above,
  • the renewal of an existing licence for a term not exceeding 5 years if there are no additional permitted uses of the  land,
  • the granting of a new licence for a term not exceeding 5 years if there was an existing licence in force immediately before 1 July 2018 and there are no additional permitted uses of the land,
  • the granting of a new lease or licence for a term not exceeding 5 years if the lessee or licensee is an emergency services organisation, a not-for-profit organisation or a community group and the Minister consents to the granting of the lease or licence,
  • the granting of a new lease for a term not exceeding 5 years if negotiations between the council and the lessee in relation to the lease were commenced and, in the opinion of the Minister, substantially completed before 1 July 2018, and the Minister consents to the granting of the lease, and
  • the granting of a new lease or licence for a term not exceeding 21 years if, in the opinion of the Minister, the lease or licence could have been granted immediately before 1 July 2018 under a plan of management in force.

Once a new POM is adopted in accordance with the LG Act for council managed Crown land, the council will be bound by the POM and provisions of the LG Act dealing with leasing and licencing of community land.

If you wish to discuss this article, please contact Frances Tse on 8235 9711.

 

About frances tse

Frances, Wing Yee Tse is a Special Counsel with Lindsay Taylor Lawyers. Frances has been practicing in the field of local government, planning and environment law since her graduation from Bachelor of Laws in 2007. Frances also holds a Masters of Environmental Law from the University of Sydney and is an accredited specialist in planning & environment law as governed by the Law Society of NSW. Frances has experience in providing advice in relation to the Environmental Planning and Assessment Act 1979 to including advice on characterisation and permissibility of development, validity of consents and planning instruments, assessment processes (Part 4, Part 3A (now repealed), crown development provisions and Part 5), and infrastructure and development contributions (including section 94 and planning agreements). Frances has assisted in the drafting of a vast number of planning agreements and works-in-kind agreements for local councils and developers. She has also assisted in the provision of advice to local councils and developers on the provisions of Environmental Planning and Assessment Act 1979 on such agreements and the registration of planning agreements. Frances has experience in property and conveyancing and has worked on matters involving the sale of council and Crown land, including advice on proper procedures for sale of Crown land under the Crown Lands Act 1989 and drafting of associated agreements, and deeds. Frances has experience in local government matters, including advices in relation to code of conduct, council meeting procedure, tendering issues and access to information under the Government Information (Public Access) Act 2009. Since the commencement of that Act, Frances has also been involved in proceedings in the Administrative Decisions Tribunal in relation to a review of an application for access to information. Frances has acted as advocate in classes 1 and 4 of the Land & Environment Court.
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