Prior to 1 July 2018, Crown land was managed under the Crown Lands Act 1989 (CLAct), and at least ten (10) other separate pieces of legislation. When the Crown Land Management Act 2016 (CLMAct) came into effect, eleven (11) Acts of the old Crown Land regime became wholly repealed, including the CL Act.
The CLM Act represents a significant opportunity for local Councils to take direct ownership of Crown land that has local value. It also simplifies the processes for Councils managing Crown land in the future. Councils will benefit from an early and thorough analysis of their landholdings to determine the best strategy to comply with the requirements of the CLM Act.
The new CLM Act includes an objective ‘to facilitate the use of Crown land by the Aboriginal people of New South Wales … and, where appropriate, to enable the co-management of dedicated or reserved Crown land’.
Below is a brief summary on the operation and effect of the CLM Act:
- to ensure decisions concerning Crown land consider environmental, social, cultural heritage and economic values;
- to enhance community engagement;
- to recognise Aboriginal involvement in the management of Crown land;
- to boost compliance and enforcement powers;
- to improve equity by standardising lease and licence arrangements; and
- to support social and community use by giving access to rent rebates and waivers.
2.1 Section 4.6(1)(d) of the CLM Act allows for the ownership of Crown land to be transferred to local Councils if the Minister is satisfied the land is suitable for “local use”.
2.2 In making this decision, the Minister must take into account the criteria to be prescribed in the Regulations.
2.3 The transfer of ownership of Crown land to local Councils is voluntary and requires Council’s agreement (section 4.6(1)(b)). The transfer will also be subject to the existing regime of land claims under the Aboriginal Land Rights Act 1983 (NSW), and as a result, any negotiations about proposed transfers of Crown land will take place with local Councils and Aboriginal Land Councils.
2.4 Once land is transferred into Council ownership, the decision making about the management of that land will be made in accordance with the Local Government Act 1993 (NSW) (LG Act).
2.5 Council’s will be entitled to any income generated from the land (section 4.8(7)) and will become responsible for any leases or licences (section 4.9(6)(f)).
2.6 Whether land becomes owned by Councils or is continued to be managed as Crown land, Councils will need to identify:
- whether the land should be classified as community or operational land;
- the category of any community land; and
- how the initial plans of management will be prepared and adopted.
3. Plans of management
3.1 With the commencement of the CLM Act, the majority of Council managed Crown reserves will be classified as community land (section 4.8(1)), meaning that Councils will be required to have plans of management (POMs) under the LG Act for most Crown reserves they manage.
3.2 In order to make implementation as straightforward as possible:
- the requirement to have POMs will be phased in over three (3) years from the time the CLM Act commences;
- Councils can amend existing POMs so that they apply to Crown reserves, where this is appropriate given the use of the Crown reserve;
- where new POMs are required, Councils will be able to follow a simplified process (for example, councils will not be required to hold public hearings for the first POM); and
- financial assistance, administered by OLG, will be available to help with the costs of preparing POMs.
4. Existing Plans of Management
4.1 The CMA Act authorises Councils to manage Crown land is if it were public land under the LG Act with the default classification of community land.
4.2 Where a Plan of Management is already in place under the CL Act, the Regulations provide that this Plan will remain in force until either:
- a new Plan of Management under the provisions of the LG Act is adopted;
- the land us classified as operational land under the LG Act (with the ministers written permission); or
- the conclusion of the initial period, by which time Councils are required to have adopted a new Plan of Management.
5. Native Title
5.1 Councils as Crown land managers are already responsible for complying with the Commonwealth Native Title Act (NT Act) in all their dealings and activities with respect to that Crown land.
5.2 The CLM Act recognises and clarifies the responsibilities where Native Title has not been extinguished or determined.
5.3 It includes provisions requiring Councils to engage trained Native Title managers to ensure compliance with their obligations under the NT Act. This ensures that Councils have the ability to meet their Native Title obligations.
5.4 The State will pay for initial training for Native Title managers for all Councils.
5.5 The new vesting provisions will also allow land to be transferred to Council ownership where Native Title has not been extinguished.
6. What does not change?
6.1 The Minister will still be able to:
- dedicate or reserve land;
- grant leases, licences, permits, easements or rights of way;
- appoint managers for dedicated or reserved Crown land; and
- sell or dispose of Crown land, subject to appropriate safeguards.
6.2 All leases and licences issued under the existing legislation will continue until the lease or licence term expires.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.