Posted on December 21, 2016 by Megan Hawley

Vesting of Crown Lands in Councils

The new Crown Lands Management Act 2016 (CLM Act), which will  eventually repeal the Crown Lands Act 1989, received royal assent on 14 November 2016. The majority of its provisions are not yet in effect. However provisions regarding the vesting of Crown lands in local councils took effect on 14 November 2016.

The CLM Act provides for a process whereby ‘transferable Crown land’ can be vested in local councils by way of a notice in the gazette (Vesting Notice).

Transferable Crown land’ is Crown land which has not been dedicated or reserved, nor declared to be a wildlife refuge under the National Parks and Wildlife Act 1974, or which is not land required to be used in a particular way under other legislation. However, nothing in the Local Government Act 1993 (LG Act) can prevent land from being transferable Crown land.

There are a number of pre-requisites to the vesting of land in a council, as follows:

  • the council must agree to the vesting;
  • the land must be wholly within the local government area of the council in whom it is being vested;
  • the vesting must have the consent of local and NSW aboriginal land councils if the land is subject to a claim under the Aboriginal Land Rights Act 1983; and
  • the Minister must be satisfied that the land is suitable for ‘local use’.

In respect of the last matter, the Minister will take into account factors which are to be prescribed in the regulations, when determining whether land is suitable for local use. The regulations have not yet been made.

Any vesting is subject to any native title interests, and there are constraints on dealing with the land unless native title has been satisfactorily dealt with under the Native Title Act 1993 (Cth) in order to avoid any breach of that Act. However councils will be able to adopt and implement plans of management under the LG Act for the land.

Trusts and conditions effecting the land can be extinguished on vesting in the council, but any leases or licences continue in force, and the council becomes the landlord.

Land vested in a council pursuant to the new provisions will be community land for the purposes of the LG Act, unless the Vesting Notice specifies otherwise. The Minister can only specify in a Vesting Notice that land will be operational land instead of community land in two circumstances:

  • if the land does not fall within any of the categories for community land under the LG Act (being natural areas, sportsgrounds, parks, areas of cultural significance and land for general community use), or
  • the land could not continue to be used and dealt with as it currently can if it were required to be used and dealt with as community land.

Plans of management will be required to be prepared by the Council in respect of any land vested in a council as community land.

There are other provisions which effect councils as managers of Crown land which have not yet commenced operation, but which will permit management of such land in accordance with the LG Act and plans of management.  We will post further articles in respect of those provisions, and other provisions of the CLM Act as they commence operation.