CROWNING GLORY REQUIRES FORETHOUGHT

By on June 26, 2012

ERIK BIRZULIS, Director of LANDAIR SURVEYS reports on the need to clarify what type of land you’re planning to utilise.

I was recently reminded about the importance of researching and understanding the status of public land and the potential impact this status can have on development of a site. By public land I am referring to Crown Land.

Just as it is vital during your planning phase to choose the right methods for surveying a site, determining how the land is owned and managed can have a significant impact on commitment of funds and potential usage.

At Landair Surveys we service a wide range of industries, and we have witnessed instances of difficulties resulting from inadequate research or forethought into the status of public land.

A recent workshop, on Leases and Licenses on Public Land, highlighted the importance of clarifying what type of land you’re planning to utilise. By clarifying the Crown Land status, you can determine how best to commit resources towards the most profitable use for your business.

Clearly it is important to seek qualified advice, as Crown Land law can be a complex area, however I have outlined below a relatively straight forward reference guide for assessing the land you are intending to utilise.

LAND STATUS

The default status of land is “unalienated and unreserved land of the Crown”. All land in Victoria once had this status. Approximately two thirds of land in Victoria has been alienated by Crown Grants to Freehold Land or alienated for a term as Leasehold Land. The remaining one third of Victoria is therefore Crown Land.

Crown land can be:

  1. Unalienated Crown Land
  2. Reserved Crown Land
    (Temporary or Permanent Reserves)
  3. Government Road
  4. Vested Crown Land
    (vested to authorities such as Education, VicRoads, VicTrack etc.)
  5. Other forms such as
    a) National Parks
    b) Reserved Forest
    c) Coastal Crown Land
    d) One-off status such as the MCG.

The legal designation of Crown Land will determine the different land acts that govern it, which in turn impact the terms of use and lessee rights.

LEASES AND LICENSES

Crown land may be leased or licensed from the Crown. A lease grants exclusive possession of land to the lessee for a defined term. Whilst a license, generally allows nonexclusive use of land for a fixed term, and it does not convey an interest.

As such, a license would not be appropriate for the purposes of operating a quarry because it does not grant exclusive access to the land. However a license over adjoining Crown Land may be necessary for a quarry operator to use a water pipeline, for example.

LEASING

The below table is a summary overview of typical Crown Land leases.

Two ministerial approvals are required for a lease on Reserved Crown Land, with the “grant and purpose” test determining whether the proposed purpose of the lease is detrimental to the purpose of the reserve or not. The terms and conditions of the lease must then be approved. Importantly, all commercial leases are subject to a market valuation by the Valuer General Victoria or a registered valuer.

Establishing rental levels are then based on either a revenue sharing model or a pricing formula. There can also be opportunities to negotiate, however isn’t a given and can only be determined on a case by case basis.

It is also important to note that Native Title can exist on Crown Land, and any leases will still be subject to the required approvals under the Planning and Environment Act as well as DPI conditions.

As mentioned above, Crown Land law can be a complicated area. To avoid potential complications, appropriate advice should be sought at an early stage for any proposed developments.

To discuss further, or for information on planning the most appropriate surveying solutions for your site, call Erik Birzulis at Landair Surveys on (03) 9887 2888 or e-mail erik@landair.com.au

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