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A new piece of legislation concerning the management of Crown land was assented to in November 2016 which now allows the Crown to vest land in local Councils by way of a gazette. Some provisions of the Crown Land Management Act 2016 (NSW) (CLM Act) came into force on 16 November 2016. Although many of the provisions in the CLM Act have not yet come into force, one major part of the legislation that is in force is the empowerment provided to the NSW Government to vest certain Crown land to Council.

What land can be vested?

The CLM Act prescribes that the type of Crown land able to be vested in Councils is that which has not yet been ‘declared or reserved’. Further, the land must not be declared as being a ‘wildlife refuge’ or be required to be used for some specific purpose under any legislation. In other words, it must be simply Crown land that serves no special purpose.

In what circumstances can the land be vested?

Under section 4.6 of the CLM Act, the Minister may, by notice published in the Gazette via a Council Vesting Notice, vest specified transferrable Crown land in a local council if the following is satisfied:

(a)          the land is wholly located within the local government area of the council, and

(b)          the council has agreed, and

(c)          for land for which a claim has been made under the Aboriginal Land Rights Act 1983—written consent for the vesting of the land has been given by:

(i)          the Local Aboriginal Land Council for the Local Aboriginal Land Council area (as defined in that Act) in which the land is located, and

(ii)         where the claim is made by the New South Wales Aboriginal Land Council—the New South Wales Aboriginal Land Council, and

(d)          the Minister is satisfied, after taking into account the criteria prescribed or identified by regulations made for the purposes of subsection (2), that the land is suitable for local use.

In relation to part (d), the regulations to be considered by the Minister in determining whether the land is suitable for local use have not yet been drafted.

Impact on Council

Once Council has received the transferrable Crown land, it obtains an estate in fee simple in the land and Council becomes entitled to any income generated by the land after its vesting. Land that is vested in Council will be community land for the purposes of the Local Government Act 1993 (NSW) and plans of management must be prepared by Council to manage the use of this land. Council must ensure it manages this land as it would any other land that it owns.

It is important to note that the land can only be vested in Council if it has formally agreed to this course of action. Council should also be aware that any land vested in Council will be subject to any native title rights and interests existing in relation to the land immediately before vesting.

Matthews Folbigg Lawyers, Parramatta, are specialist environmental lawyers who are able to advise in relation to all matters relating to governance, planning and environmental law.  Call an expert environmental lawyer today on 1800 300 308.