May 2018

Crown land and public roads

The long-awaited commencement of the new Crown land legislation is expected to take place shortly. It is therefore timely to consider three areas where councils will experience the greatest change; namely, the vesting of Crown land in councils, the management of Crown land by councils and the closure of public roads by councils.

Before we do that, here is a brief summary of the relevant legislation.

The new Crown Land Management Act 2016 received royal assent on 14 November 2016 and will eventually repeal the Crown Lands Act 1989. The enactment of the new Act will have an impact on other Acts, such as the Roads Act 1993 and the Local Government Act 1993.

The Crown Land Legislation Amendment Act 2017 will make consequential amendments to those other Acts. This Act received royal assent on 17 May 2017 and will commence when the Crown Land Management Act repeals the Crown Lands Act 1989.

Crown land management by councils

The Crown Land Management Act will bring the management of Crown land by councils under the Local Government Act, providing a largely single framework for the management of Crown and community land. This will simplify how councils manage Crown land.

These provisions are expected to commence in the near future.

The Crown Land Management Act enables the Minister to appoint a council to be a Crown land manager for specified dedicated or reserved Crown land. Following the appointment, the council (known as a council manager) is authorised to classify and manage the Crown land as if it were public land within the meaning of the Local Government Act, but it must do so in accordance with the Crown Land Management Act.

This means that the council manager may manage its Crown land as if it were community or operational land.

As a rule, the council manager must manage its Crown land as if it were community land. For that purpose, it has the same functions as under the Local Government Act in relation to community land, including the leasing and licensing of the land. The council manager must assign the Crown land to one or more of the categories of community land listed in section 36 of the Local Government Act and must prepare and adopt a plan of management for the land in accordance with the Local Government Act.

The preparation and adoption of the plan of management must take place within 3 years after the commencement of the Crown Land Management Act.  Councils can do this by amending an existing plan of management so that it applies to the Crown land or by adopting a new plan of management for the Crown land.

If the Crown land is a public reserve, the council manager must manage it as such under the Local Government Act.

A council manager can only classify Crown land as operational with the written consent of the Minister. In such cases, the council has the same functions as under the Local Government Act in relation to operational land. However, this does not allow the council manager to sell or dispose of the land without the Minister’s written consent.

Vesting of Crown land in councils

The most significant change to vesting provisions effected by the Crown Land Management Act is that if Crown land is subject to a claim under the Aboriginal Land Rights Act 1983, the Minister may not vest that land in councils without the written consent of the Local and NSW Aboriginal Land Councils.

The provisions regarding the vesting of Crown land in councils commenced when the Crown Land Management Act received royal assent on 14 November 2016.

The Crown Land Management Act enables the Minister, by a council vesting notice published in the Gazette, to vest specified transferable Crown land in a council.

Transferable Crown land means dedicated, reserved or any other Crown land, but does not include:

  • land dedicated, reserved or declared to be a wildlife refuge under the National Parks and Wildlife Act 1974 or

  • land that is required by another Act to be used for a particular purpose.

The Minister may only vest Crown land in a council if the following 4 conditions are met:

  • the land is wholly located within the local government area of the council

  • the council has agreed to the vesting

  • the vesting has received the written consent of the Local and NSW Aboriginal Land Councils if the land is subject to a claim under the Aboriginal Land Rights Act 1983

  • the Minister is satisfied that the land is suitable for local use.

Vesting the land in a council means the council obtains the fee simple for the land. This, in turn, means it ceases to be Crown land. Council takes the land, subject to any native title rights and interests existing immediately before the vesting and any reservations and exceptions contained in the council vesting notice.

The land vested in the council is taken to have been acquired as community land under the Local Government Act from the date of its vesting. However, the Minister may specify in the council vesting notice that the land is to be acquired as operational land, as long as:

  • the land does not fall within any of the categories for community land under the Local Government Act or

  • the land could not continue to be used and dealt with as it currently is if it were classified as community land.

Closing public roads

The purpose of the proposed amendments of the Crown Land Legislation Amendment Act to the Roads Act 1993 is to provide a means for councils to close council-owned public roads without the approval of the Minister.

If a road is not reasonably required as a road for public use, or is not required to provide continuity for an existing road network and another public road provides lawful and practical vehicular access to land, then council may propose closure of that road.

Council must give public notice of the proposed road closure in a local newspaper as well as to all owners of land adjoining the road and to all notifiable authorities. The notice must allow at least 28 days for submissions to be made.

Notifiable authorities include Ausgrid, Jemena, Transport for NSW and RMS, among others.

If a notifiable authority formally objects to the road closure, the road may not be closed until the objection is withdrawn by the authority or set aside by the Land and Environment Court. The council may appeal to the Court against a formal objection and, on such an appeal, the Court may either affirm the objection or set it aside.

After considering submissions, the council may close the road by publishing a notice in the Gazette. It will then cease to be a public road and previous rights of passage and access will be extinguished.

Owners of land adjoining the road may also appeal to the Land and Environment Court against the closure, and the Court may either affirm the closure or set it aside. Unlike the provisions relating to appeals by notifiable authorities, the new provisions do not prevent the council from closing the road until the objection is withdrawn or set aside by the Court.

When the Crown Land Legislation Amendment Act commences, the closure of public roads by councils should become a less costly and time-consuming exercise.