Council Crown land managers (CLM) can alter community land categorisations on Crown reserves through a plan of management. Councils will need to consider material harm when altering a category in a plan of management.
Process for altering Crown land categorisation
All community land Crown reserves managed by a council must have a plan of management in place under the Local Government Act 1993 (LG Act).
Before a plan of management is prepared, councils are required to assign one or more community land categories to the reserve. Once these initial categories are assigned, councils can then prepare draft plans of management for their reserves.
Councils submit the draft plans of management to the Department of Planning and Environment – Crown Lands (the department) for review, before public exhibition (section 39 of the LG Act) and when applying for written Minister’s consent to adopt the plan, under clause 70B of the Crown Land Management Regulation 2018.
The Minister cannot give written consent to the adoption of a plan of management if the alteration of the categorisation is considered likely to materially harm the use of the land for its reserve purpose (section 3.23 (10) of the Crown Land Management Act 2016).
Frequently asked questions
The Crown Land Management Act 2016 (CLM Act) does not define material harm, but it does provide relevant considerations under section 2.14 of the CLM Act. These considerations guide the Minister in making a decision on whether the alteration of land category is likely to materially harm the use of the land for its reserve purpose.
Councils need to consider material harm when:
- seeking Minister’s consent to the alteration of a community land category in a plan of management – section 3.23(10) of the CLM Act
- seeking Minister’s consent for an additional reserve purpose where the proposed activities are not considered consistent, ancillary, or incidental to the existing reserve purpose – section 2.14(2)(b) of the CLM Act
- granting a tenure under section 2.19 of the CLM Act.
In all these situations, councils should first contact the department to discuss proposed changes. Councils should provide a map detailing the changes and provide information to justify those changes, including why the change is needed, what council intends to occur under the change and whether it is consistent with the existing reserve purpose(s).
When councils submit a draft plan of management with an altered category, they should include the justification and their assessment of material harm in the department’s submission form.
Section 2.14(3) of the CLM Act sets out the material harm considerations.
- the proportion of the area of the land that may be affected by the additional purpose*
- if the activities to be conducted for the additional purpose* will be intermittent, the frequency and duration of the impacts of those activities,
- the degree of permanence of likely harm and in particular whether that harm is irreversible,
- the current condition of the land,
- the geographical, environmental and social context of the land,
- any other considerations that may be prescribed by the regulations.
*or change in community land category
Under section 2.14(2)(a) of the CLM Act, council CLM also need to consider whether the change in community land category or additional reserve purpose is in the public interest.
When assessing material harm, council CLM need to remember that the material harm considerations are all relative to the existing reserve purpose(s) and frame their assessment accordingly. Council CLM should also consider the Objects of the CLM Act (s1.3) and the Principles of Crown land management (s1.4) when considering likely material harm.
Each consideration is assessed on its own merits. The assessment should include arguments that may be both ‘for’ and/or ‘against’ each consideration.
Table 1: Guidance to help councils in assessing material harm considerations
| Material harm consideration | Guidance |
|---|---|
| a) The proportion of the area of the land that may be affected by the additional purpose/change in category. | Council may want to represent this as a percentage of the total reserve area and include a map that indicates the affected area in context to the reserve. |
| b) If the activities to be conducted for the additional purpose/change in category will be intermittent, the frequency and duration of the impacts of those activities | Consider what activities will be authorised under the altered category (or additional reserve purpose) and the potential impact of those activities on the existing reserve purpose.
How frequent will the activities be under the altered category (or additional reserve purpose)? |
| c) The degree of permanence of likely harm and whether that harm is irreversible. | Consider what the main impacts might be on the current use of the reserve as a result of altering the category (or adding an additional reserve purpose).
When considering reversibility, council may want to consider how a facility could be repurposed in the future. |
| d) The current condition of the land. |
|
| e) The geographical, environmental, and social context of the land. | Geographical:
Environmental:
Social:
Does the proposed change improve social outcomes? |
| f) Any other considerations that may be prescribed by the regulations. | Currently the Crown Land Management Regulation 2018 does not prescribe any other considerations. However, Council CLM are encouraged to keep up to date with legislative changes as this may change in the future. |
Considerations of public interest may include:
- If the council has already undertaken some community consultation regarding the proposal, what was the community response to the proposed changes?
- Is this for the benefit of the local community or is it for specific user groups?
- How will the public benefit from this?
In addition to satisfying the material harm considerations, Council CLM must ensure they are compliant with the requirements of the Aboriginal Lands Right Act 1983.
Council CLM must also ensure that they receive Native Title Manager advice for the activities proposed under the altered community land category (or additional reserve purpose) to ensure they have a valid pathway under the Native Title Act 1993 (Cwlth).