Crown Land Changes

Crown Land

The following questions(s) were posed by Clr. Lynne Saville. There is an analysis of the responses received in the COMMENT below.

Question
Will the Council management of Crown Lands within the Willoughby LGA be affected in any way with the passing of the Crown Lands Amendment (Multiple Land Use) bill 2013 on 20th November?

Can you please outline any changes particularly with regards to the legal validity of secondary tenures over Crown reserves in Willoughby that may result from the Bill?

Were any crown lands in Willoughby in jeopardy prior to the passing of the bill?

Does the bill provide more certainty for Council’s role in the management of crown lands
within this LGA?

Answer
The following advice has been received from Council’s solicitor in relation to the above:

Question 1: Can you please outline any changes particularly with regards to the legal validity of secondary tenures over Crown reserves in Willoughby that may result from the Bill?

Secondary tenures which might previously have been the subject of doubt will no longer be subject to challenge if they meet the requirements of Section 34AA (2).

Reasoning: The Act now ensures the legal validity of second use interests that may otherwise have become invalid in the wake of the NSW Court of Appeal decision in Minister Administering the Crown Lands Ac t 1989 v NSW Aboriginal Land Council (2012) NSWCA 358 (“The Goomallee Claim”)

Question 2: Were any Crown Lands in Willoughby in jeopardy prior to the passing of the Bill?

Any secondary interest granted over land subject to a reserve trust may have been in jeopardy prior to the passing of the Bill.

Reasoning: the decision of the NSW Court of Appeal in Minister Administering the Crown Lands Act 1989 v NSW Aboriginal Land Council (2012) NSWCA 358 had the potential to render many second use tenures invalid. The effect of the decision was that any secondary use, not for the purpose of the reserve, or in furtherance of or incidental to the purpose of the
reserve, may have become invalid. Any lease, licence, permit, easement or right of way
(secondary interests) granted over a Crown Reserve in Willoughby that was not for the
purpose of the reserve was in jeopardy of invalidation.

Question 3: Does the bill provide more certainty for Council’s role in the management of Crown Lands within this LGA?

The Bill does provide more certainty for Council’s role in the management of its Crown Lands. In particular the Act provides clear guidance as to the factors relevant to the grant of second use tenures.

Reasoning: Section 34AA provides a clear test as to when the Minister may grant a second use tenure and sets out the factors relevant to the determination of whether that second use or occupation is valid.

Conclusion: the amendments made to the Crown Lands Act 1989 by the Crown Lands Amendment (Multiple Land Use) Bill 2013 will assist Council in determining whether it has power to grant second use tenures of Crown Reserves and will protect exiting second use tenures which meet the requirements of Section 34AA.

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3 thoughts on “Crown Land Changes

  1. Hi Lynne,

    I had a look at the answers to your questions. The answers related primarily to second tenure issues. However, they failed to address your primary question viz.

    “Will the Council management of Crown Lands within the Willoughby LGA be affected in any
    way with the passing of the Crown Lands Amendment (Multiple Land Use) bill 2013 on 20th
    November? ”

    Your question had much broader implications than just second tenure situations.

    Reading the press release, it looks like the State Government is intent on cost displacement by trying to move more responsibility for some Crown Land to Councils. Without realistic ‘user pays’ principles, such a move could further exacerbate Councils financial delicacy.

    At the State level, it appears the Government is hell-bent of reclassifying (rezoning) ‘unwanted’ Crown lands to fill its coffers from commercial development.

    One example is that on the coast of NSW, the Government has been withdrawing leases for recreational land such as camping grounds. The belief is they want to pass control of these to commercial operators or rezone as residential.

    The whole Crown Lands issue, as you are aware, is a significant matter that needs close scrutiny.

    Regards

    Terry Fogarty

  2. Purpose of Report
    Councillor L Saville has indicated her intention to move the following Notice of Motion.

    Motion
    That Council provides Councillors with a list of all Crown Lands within WCC, and that the list
    details size, use, leases and whether a Trust oversees that parcel. Information should
    include rationale or criteria for the establishment of a Trust to oversee that parcel of land.

    Acting General Manager’s Comments
    The information requested is contained in Council’s GIS system. No objection to producing
    this report is raised.

    OFFICER’S RECOMMENDATION
    That Council consider the Notice of Motion of Councillor Saville

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