April 2004

Property Law Update: disposal of land by registered clubs, news on easements

Disposal of Land by Registered Clubs

Parliament recently passed the Registered Clubs Amendment Act, 2003 which provides for many new provisions to be inserted into the Registered Clubs Act, 1976. The focus of the Amendment Act is on accountability and good governance across a number of areas. This article deals with the changes as they affect the disposal of land. The supporting regulations were proclaimed on 8 April 2004.

Compulsory regime for 'disposal of land'

The new provisions will include a compulsory regime for any 'disposal of land' by a registered club. The term disposal of land is widely defined - in addition to a sale of land, it will include:

  • the granting by the club of:
    • a lease or licence of the land, for a period of more than 3 years including any option to renew;
    • an easement over the land;
    • an option to buy the land;
    • a sublease or licence over land; and
  • the termination by the club of a lease or licence held by the club over the land.

Under the regime, a registered club must not dispose of any land of the club unless:

  • the disposal has first been approved at a general meeting of the ordinary members of the club at which a majority of the votes cast supported the approval; and
  • the disposal is by way of public auction or open tender conducted by an independent real estate agent or auctioneer (subject to requirements of other laws).

In addition, in the case of a sale of land, the club must have first obtained a valuation of the land from an independent registered real estate valuer (as defined).

What happens if the regime is not followed?

Under the new provisions, if land of a registered club is disposed of other than in accordance with the new regime, the Director of Liquor and Gaming may apply to the Supreme Court for an order in relation to the disposal.

In determining such an application, if the Court considers the disposal has not been generally to the benefit of the members of the registered club, the new provisions will empower the Court to make orders including:

  • declaring the disposal to be void and ordering the land to be transferred back to the club;
  • directing payment of an amount (or further amount) by any person who benefited from the disposal; and
  • any other orders the Court considers necessary or appropriate (which could include an injunction).

Contravention is an offence

If a registered club contravenes the new regime, each person who is:

  • a secretary of the club, or member of the governing body of the club; or
  • a close associate of the club (the phrase is broadly defined, and includes a person entitled to exercise any relevant power in the business of the club and so exercise significant influence over the management of the business),

could be guilty of an offence, the maximum penalty for which is currently $11,000.

The bottom line

If you are:

  • a registered club about to enter into a 'disposal of land' or
  • about to accept a 'disposal of land' from a registered club,

you should plan to:

  • complete the disposal without delay; or
  • make sure your business won't be negatively affected, if you can't proceed without the timing and cost consequences of complying with the new regime.

Trespass, Access and Easements

An unauthorised entry of land or an interference with another person's exclusive possession of land may be a trespass which may be restrained by a Court order even where no damage occurs.

Certain statutory authorities may enter and carry out work on private land. There are also 3 statutory schemes by which a person may obtain the right to enter and carry out work on another person's land.

  • Access orders under the Access to Neighbouring Land Act 2000 ("ANL Act")
  • Easements under the Land and Environment Court Act 1979 ("L&EC Act")
  • Easements under the Conveyancing Act 1919, section 88K ("section 88K")

Each scheme has its own requirements and limitations. Independently of or under each scheme, either access or an easement may be obtained by agreement. In this brief article we explain only some aspects of each scheme where all reasonable attempts to obtain agreement have failed.

The selection of the most appropriate scheme will depend upon the reason that access or an easement is required and whether work is intended to be carried out on the land to which access is required or on the adjoining land.

Each scheme appears to have much in common. The differences in the schemes only become clear on a close analysis of the particular access or easement required and the provisions of each scheme under which orders may be made.

The types of orders which may be made are:

  • An order under the ANL Act either to obtain access to land either to enable work to be carried out on other land, or to enable work to be carried out on or in connection with a utility service.
  • An order under the L&EC Act imposing an easement over land reasonably necessary for the development of other land.
  • An order under section 88K imposing an easement over land reasonably necessary for either the development of other land, or the permanent benefit of other land.

The grant of an access order under the ANL Act is the most practical means of obtaining access to land. However, such orders are limited to carrying out work on land other than the land to which access is given (access order only) or carrying out work on a utility service in the land to which access is given (utility service order). The major limiting factor is the use of the term "access". The ordinary meanings of access include: a coming to; or the means or way by which a thing may be approached. An example of an access order only would be for the carrying out of work to maintain a fixture on adjoining land whilst standing on the land to which access is given. No compensation is payable merely for the right of access.

An easement under the L&EC Act may be imposed in very limited circumstances. An application may only be made after the Court has determined to grant development consent. The Court only grants consent on an appeal from a council or other consent authority. Such a consent is not likely where the proposed easement is an integral part of the proposed development. The Court may only grant the easement if it is reasonably necessary for the development to have effect in accordance with the consent. An example would be an easement for the swinging jib of a crane. Compensation is usually payable for the easement.

An easement under section 88K may be imposed in certain circumstances. The limiting factors are that:

  • the proposed easement must be reasonably necessary for the effective use or development of other land,
  • the use of the land having the benefit of the easement will not be inconsistent with the public interest, and
  • the owners of the land to be burdened by the easement can be adequately compensated.

Sometimes it is necessary to enter land or obtain an easement over land to effectively use or develop other land. Whether one needs an access order under the ANL Act or an easement under either the L&EC Act or section 88K will depend entirely upon the reasons access or an easement is required and the provisions of each scheme. Care needs to be exercised in the selection of the scheme to be followed in negotiations and for purposes of any necessary court application.

 

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