Transferring a Western lands lease
The consent of the Minister (or their delegate) is required prior to the transfer of a Western lands lease.
Minister’s consent to the transfer is required prior to the registration of any dealing with NSW Land Registry Services. If a Real Property Transfer Form is lodged with NSW Land Registry Services to affect the transfer of a restricted Western lands lease without the letter of consent, the dealing will be requisitioned.
The application form must be completed by both the vendor and purchaser and accompanied by a certified copy of the contract of sale (including any special conditions attaching to the contract).
If a contract has not been entered into then a certified copy of the Real Property Transfer form should be forwarded instead.
Every application received is appropriately investigated. Those involving the transfer of residential, business or similar type leases are generally straight forward and may be processed within three weeks of receipt unless an inspection is required.
Investigation of those applications involving the transfer of rural leases will generally involve a physical inspection of the property by a departmental officer and the preparation of a report on their findings. This requirement leads to investigation times for rural transfers exceeding that of residential and business transfers by several weeks.
On inspection of a rural property, the department’s officer will make observations of the lessee’s compliance with lease conditions. These conditions include maintenance of boundary fencing, weed and feral animal control and maintenance of native vegetation. They will also make observations on compliance with conditions attaching to any cultivation consent or clearing licences that have been issued over the lands. If during the inspection a breach of lease, licence or consent conditions is identified, the department may choose to either:
- refuse consent to transfer
- withhold consent to transfer pending certain specified works being undertaken
- grant consent to transfer subject to specified undertakings being given by the parties to the transfer.
If the prospective purchaser indicates in the application that they intend on using the Crown land for a purpose other than the stated purpose of the lease (e.g. agricultural pursuits where the lease purpose is grazing), a change of purpose will be necessary prior to the transfer.
A Western lands lease cannot be transferred if there is any debt to the Crown outstanding on the lease.
Waiver of Ministers consent to transfer a Western Lands Lease
The holder of a continued tenure, a continued irrigation tenure or a continued Western lands tenure can apply for a waiver of ministerial consent to transfer, convey, assign or otherwise deal with a lease. Any waiver granted is for a period of 12 months from the date of issue. Any further period of time will require a new application.
Investigation of those applications involving the transfer of a rural leases will generally involve a physical inspection of the property. If during the inspection, a breach of conditions is identified, the department may choose to either:
- refuse to grant the waiver and the lessee will be required to follow the standard consent-to-transfer process, or
- withhold the waiver pending certain specified works being undertaken. If a second property inspections required to confirm that the specified works have been completed, the costs associated with the inspection will be passed on to the tenure holder.
Subdivide a Western lands lease
A Western lands lease can comprise one or several parcels of land. The boundaries of each parcel have usually been defined by survey. Subdivision cannot be effected without the approval of the Minister
Subdivision of a lease is usually necessary when a lessee wishes to:
- sell part of the lease
- change the purpose of part of the lease
- divide leasehold lands for some other reason such as estate planning. On subdivision, new leases are created for each part of the subdivided holding.
Where the reason for the subdivision is to alter the lease purpose of part of the land, the fact sheet titled Alteration of purpose or conditions of a Western lands Lease should be read as well
The consent of the local council may be required for a proposed subdivision. In many circumstances the council may require the lessee to obtain development consent for the proposed subdivision.
Where the development is on Crown land (which includes land held under lease) any development application must in the first instance, be authorised for lodgement by Crown lands, as the owner of the land.
Where the lines of subdivision follow existing parcel boundaries (that is, the lease comprises more than one parcel and it is intended to excise one or more of those parcels from the lease), survey will not be necessary.
Survey will be necessary in almost all other circumstances.
There are no provisions to grant a new term Western lands lease. Any new term lease granted as a result of the subdivision of an existing term Western lands lease will be a lease granted under the Crown Land Management Act 2016 and the terms and conditions of this lease will be different to that of the original holding
Most Western lands leases have a term in perpetuity. This means that the lease continues indefinitely. However, there are some Western lands leases that have been granted for a term of years. These leases may be for any purpose or be located in any area
Where a lease is held for a term of years and is due to expire, the lessee may be invited to lodge an application to further authorize the occupation of the land. This application will either be for an extension of the term of years of the existing lease or for a new lease
Where the lease has been granted for a term of years and the original term including any subsequent extensions has not exceeded 40 years, an application may be processed to either:
- extend it in perpetuity
- to extend it for a further term of years (but not to exceed a cumulative term of 40 years).
All Western lands leases are granted for a specified purpose and include a set of conditions of use. The land subject to lease cannot be used for any other purpose or contrary to any condition of the lease.
The Crown Land Management Act 2016 makes provisions for the carrying out of “approved activities”, in addition to the existing activities (authorised by the lease purpose) on perpetual Western lands leases, as long as the activity does not become the primary use of the land.
Western lands leases identify potential alternative uses for their land.
If the lease is a term lease:
- If the identified potential use for perpetual Western lands lease is outside of the abovementioned approved activities,
- if the approved activity will become the primary use of the land then an alteration of lease purpose and/or conditions to accommodate and legally validate the new use may be required.
Any purpose or condition attaching to a lease can be varied, modified or revoked. These alterations cannot be effected without the consent of the lessee and approval of the Minister.
Where it is intended to use only part of a lease for another purpose, a subdivision may also be necessary and the fact sheet titled Subdivision of a Western lands lease should be read.
In many circumstances a local council may require the lessee to obtain development consent for the proposed new land use/activity.
Where a council is not the consent authority for a proposed development, the responsibility for determination rests with the Department.
An application can be made to alter the conditions attached to a lease. Circumstances where this action may be necessary include buffer exchanges to offset cultivation consents and the addition of new cultivation areas on leases already approved for ‘grazing and cultivation’. It may also be necessary to alter the conditions of a lease because of a change of lease purpose, to regulate the new land use. No alteration of lease conditions can be effected without the lessee’s agreement.