18 General conditions of lease
Each lease must contain:(a) the covenants, reservations and exemptions set out in Schedule 1, or(b) such of those covenants, reservations and exemptions as the Minister considers applicable to the lease.
All leases, whether granted or issued before or after the passing of the Western Lands (Amendment) Act of 1905, shall be subject to a condition that the boundaries of the lands leased shall be fenced within such period and with such class of fencing as may be determined by the Commissioner not being a rabbit-proof fence: Provided that the Commissioner may exempt any boundary or part of a boundary from fencing, and may allow a variation or modification of the character of the fencing, or extend the period for erection of the same, or may authorise the erection or use of any fence which, although not on a boundary, will, in the opinion of the Commissioner, serve all the purposes of a boundary fence, and any such fence, as well as any fence erected before the passing of the Western Lands (Amendment) Act of 1905, provided that it is in the opinion of the Commissioner of a sufficiently useful and substantial kind, shall be deemed to be a boundary fence.
18B Contribution towards fencing
When a boundary of any land under lease has been fenced, the person who has erected or become the owner of such fence shall be entitled to claim from the holder of any lands, including freeholds adjoining the said fence, and in respect of so much of the said fence as forms, or in the opinion of the local land boards should form and be used as a common boundary, a contribution of one-half the value of such fencing at the date of such claim, and may also claim an annual contribution of one-half the cost of the maintenance and repair of such fencing. After the amount of such contribution has been determined as hereinafter provided, the person entitled to payment may sue for such amount and recover the same in any court of competent jurisdiction: Provided that no holder of an occupation licence or of any lease having less than five years to run shall be liable as a contributory under this section towards the value of such fencing as aforesaid; and the side of a reserved, intended, proclaimed or other road shall not be held to form or be a common boundary line within the meaning of this Act, unless the local land board otherwise determine.
18C Local land board’s decision as to fencing
The local land board shall determine all disputes and claims whatsoever as to fencing. The provisions of subsection (6) of section 9 shall extend to appeals and references to the Land and Environment Court in respect of any such determination and to the return of any such determination to the local land board.
18CC Minister may sue for money
It shall be lawful for the Minister to bring, as nominal plaintiff on behalf of the Crown, any action or suit for the recovery of arrears of rent or of any other sums which under this Act may be due to the Crown. And no such action or suit shall be prejudiced or abate or require amendment merely because after the commencement thereof the Minister who brought the same may have gone out of office or because another Minister may have been appointed or the office may for the time being be vacant: Provided that costs may be given for or against such plaintiff in the same way as in any ordinary action or suit.
18D Provisions governing leases
(1) The following provisions shall govern all leases granted or issued either before or after the passing of the Western Lands (Amendment) Act of 1905 and the holders of such leases, namely:(i) No lease other than a special lease for that purpose shall confer any right to remove material from the leased land or to prevent the entry and removal of material by authorised persons.(ii) A lessee may take from land under the lease such timber and other material for building and other purposes on the land or on any contiguous land held in the same interest as may reasonably be required by the lessee.(iii) No lessee shall prevent any persons duly authorised in that behalf from cutting or removing timber or material or from searching for any mineral within the land under lease.(iv) A lessee shall take such measures as the Commissioner may direct to protect the land under lease and, without affecting the generality of the foregoing, the Commissioner may direct the lessee:(a) to prevent the use by stock of any part of the land for such periods as the Commissioner considers necessary and to erect fencing for that purpose,(b) to prevent the overstocking of the land,(c) to prevent any part of the land being used for such agricultural practices of such types and for such periods as the Commissioner considers necessary,(d) to foster and cultivate edible shrubs and plants on the land,(e) to preserve trees, scrub and vegetative cover on the land, and(f) to take such measures to protect the land (including measures to prevent soil erosion or other damage to the land) as the Commissioner of the Soil Conservation Service may recommend.(v) A lessee shall not overstock or permit or allow to be overstocked the said land, and the decision of the Commissioner as to what constitutes overstocking shall be final.(vi) (Repealed)(vii) A lessee shall not erect a building on the land under lease (not being land in an area within the meaning of the Local Government Act 1993) except with the prior approval of the Commissioner and in accordance with any condition to which the approval is subject.(viii) A lessee shall, if the Commissioner so directs, erect gates on public roads on the land under lease.(ix) A lessee shall carry out such repairs to improvements on the land under lease as the Commissioner may direct.(x) A lessee shall furnish such returns and statements as the Commissioner may from time to time require on any matter connected with the land under lease or any other land (whether within or outside the Western Division) in which the lessee has an interest.(2) To the extent that the provisions of this section are inconsistent with those of a conservation agreement entered into under the National Parks and Wildlife Act 1974, this section does not apply to a lease relating to land subject to that agreement.
18DA Cultivation of certain land
(1) This section applies to:(a) a lease expressed to be granted or issued for the purpose of grazing, and(b) any other lease not being a lease expressed to be granted or issued for the purpose of agriculture, grazing and agriculture combined or mixed farming or for any similar purpose or purposes,whether granted or issued before or after the day appointed and notified under section 2 (3) of the Western Lands (Leases and Productivity Schemes) Amendment Act 1979.(1A) This section also applies to any other class of land in the Western Division prescribed for the purposes of this section.(2) In this section:cultivate, in relation to land:
(a) includes the preparation of the land for cultivation and the further cultivation of the land if it has previously been cultivated, and(b) does not include clearing native vegetation, or clearing protected land, within the meaning of the Native Vegetation Conservation Act 1997 or the carrying on in relation to the land of an activity prescribed as not being cultivation for the purposes of this section.occupier means the person who, under the Crown Lands Acts, the Commons Management Act 1989 or the Rural Lands Protection Act 1998:
(a) is the holder of a permissive occupancy, a licence, a conditional lease or any other prescribed tenure, or(b) has the care, control and management of land prescribed for the purposes of this section as referred to in subsection (1A).(3) Except in such circumstances as may be prescribed, the lessee of land the subject of a lease to which this section applies, or the occupier of any other land to which this section applies, shall not cultivate any part of the leased or occupied land unless:(a) the Commissioner has consented in writing to the cultivation of that part, and(b) the consent is in force, and(c) any condition to which the consent is subject under subsection (6) is complied with.(4) Application for consent under this section shall be made to the Commissioner in a form approved by the Commissioner and shall be accompanied by the prescribed fee.(5) The Commissioner shall not give consent under this section without having first referred the application for consent to the Commissioner of the Soil Conservation Service appointed under the Soil Conservation Act 1938, for consideration and advice.(6) The Commissioner may give consent under this section unconditionally or subject to such conditions as the Commissioner may specify in the instrument of consent or may refuse consent.(7) (Repealed)(8) Without limiting the generality of subsection (6), the conditions referred to in that subsection may include a condition for the payment of an annual fee, being a fee determined having regard to the value of the lessee or occupier of the use, for the purpose of cultivation, of the land to which the consent relates.(8A) The Commissioner may, on the ground that any condition to which a consent under this section is subject has been contravened or on any other ground:(a) suspend the consent, or(b) after affording the lessee or occupier an opportunity to be heard—revoke the consent.(8B) The Commissioner may terminate the suspension of a consent under this section.(9) A consent under this section remains in force for such period as the Commissioner may specify in the instrument of consent unless it is sooner revoked or surrendered.(10) A person may appeal to the Land and Environment Court against:(a) the refusal of the Commissioner to give a consent under this section to the person,(b) any condition to which a consent given to the person under this section is subject, or(c) the suspension or revocation of a consent given under this section to the person or the person’s predecessor in title.(11) For the purpose only of enabling an appeal to be made under subsection (10), a failure by the Commissioner to determine an application for a consent under this section within 6 months after the application is received by the Commissioner constitutes a refusal by the Commissioner to give the consent.(12) A lease to which this section applies shall be liable to forfeiture if any part of the land the subject of the lease is cultivated in contravention of this section or any conditions imposed under this section.(13) No act, matter or thing which a lessee, under or in conformity with a consent under this section, does upon or in relation to the land the subject of the lease shall render the lease liable to forfeiture under this Act merely by reason of the fact that the doing of the act, matter or thing constitutes a breach or non-performance of any covenant, condition or provision applicable to the lease.
18DB Condition relating to clearing native vegetation and protected land
(1) This section applies to any lease granted or issued for any purpose under this Act (whether before or after the commencement of this section) unless the land leased has an area of 0.5 hectares or less.(2) In this section, clearing, native vegetation and protected land have the same meanings as in the Native Vegetation Conservation Act 1997.(3) It is a condition of any lease to which this section applies that any native vegetation on the land the subject of the lease, and any part of that land that is protected land, must not be cleared except in accordance with the Native Vegetation Conservation Act 1997.(4) However, such a condition does not apply in relation to any clearing that is carried out for the purpose of obtaining timber for use on the leased land for building, fencing or firewood.
18E Subsisting leases: extension
(1) The holder of a lease may apply in the approved form and prescribed manner to have such lease extended to a lease in perpetuity.The application shall be accompanied by the prescribed fee.
If a certificate of title has issued in respect of the lease it shall be forwarded with the application.
(1A) The Minister may, in the Minister’s absolute discretion, refuse to grant any such application.No other provision of this Act shall be construed so as to prejudice or affect the generality of this subsection.
(2) The Minister on the recommendation of the local land board may grant the application as to the whole or part of the land in the lease.The following provisions shall apply in respect of every such application:
(a) an application under this section shall not be entertained where the granting of the same appears to be contrary to the public interest or to be otherwise undesirable,(b) (Repealed)(c) an application shall not be granted in respect of such part of the land comprised in the lease as is:(i) reserved from sale, lease or licence under any Act—unless the Minister so approves,(ii) within a State forest or timber or forest reserve—unless the Forestry Commission so approves,(iii) within an area over which, by virtue of the provisions of the Mining Act 1992 or any instrument under that Act, an authority or claim, or a particular authority or claim, under that Act cannot be granted or registered—unless the Director-General of the Department of Mineral Resources so approves,(d), (e) (Repealed)(f) an application may be withdrawn with the consent of the Minister and upon payment of the costs incurred in dealing with the application.(3) (Repealed)(4) Where an application under subsection (1) has been granted as to part only of the land comprised in the lease:(a) separate leases shall be created under section 28A for such part and for the residue of the land comprised in the lease, and any person having an interest in the original lease shall be deemed to have an equivalent interest whether by way of mortgage or otherwise in the new leases,(b) the new leases shall commence on the date upon which the application under subsection (1) is granted and the term of the lease for such residue shall be the balance of the term of the lease subsisting at that date,(c) the lease for the residue of the land shall, subject to this section, be held subject to the conditions appertaining to the lease at the date of the said application,(d) the cost of any necessary survey shall be paid by the holder in the manner and at the time prescribed and upon default of payment the leases shall become liable to forfeiture.(e) (Repealed)(4A) If, immediately before the commencement of the Western Lands (Crown Lands) Amendment Act 1989:(a) the survey costs payable by a holder under subsection (4) (d) were wholly or partly unpaid, and(b) the annual rate of interest payable on the unpaid amount was less than 8 per cent,the annual rate of interest payable is increased to 8 per cent from that commencement.(4B) The Minister may adjust the instalments by which survey costs referred to in subsection (4A) are payable so that the total amount owing (including interest at 8 per cent) is paid over the same or a longer period.(5) A lease in perpetuity granted in pursuance of this section shall, in addition to the conditions appertaining to the lease at the date of the application under subsection (1), be subject to such terms and conditions of improvement and maintenance thereof including water supply and the destruction of rabbits, wild dogs and other noxious animals as the Minister after report by the local land board may consider necessary to reasonably increase the carrying capacity of the land, and may impose when granting the application.(6) All leases held in the same interest shall be included in one application.(7)–(13) (Repealed)
(1) The holder of a lease under this Act may, with the Minister’s approval, subdivide land comprised in the lease.(2) An application for approval is to be made in the form approved by the Minister.(3) The applicant is required to meet all reasonable costs incurred in dealing with the application.(4) The Minister may, in the Minister’s absolute discretion, refuse the application or approve the subdivision either conditionally or unconditionally.(5) A condition of approval also has effect as a condition attaching to any lease resulting from the subdivision that is a lease to which the condition relates.(6) The Minister may make such consequential alterations to the conditions or purpose of the lease for a subdivided portion as the Minister considers necessary as a result of the subdivision.(7) The Minister may exclude from a subdivision any areas required for roads of access to the subdivided portions.(8) Excluded areas are, on approval being given to the subdivision, surrendered to the Crown free from any right to compensation.(9) The Minister may apportion rent or other money due to the Crown to the subdivided portions in such manner as the Minister considers appropriate.(10) The approval of the Minister for a subdivision does not affect the requirements of any other written law that apply to the subdivision.(11) This section applies to leases whether granted or issued before or after the commencement of this section.
(1) Land held under a lease:(a) in the case of land under the Real Property Act 1900, may not be transferred, and(b) in the case of any other land, may not be conveyed,except with the consent of the Minister.(2) A conveyance effected in contravention of subsection (1) (b) is void for all purposes.(3) In the case of land:(a) that has an area of not more than 4,050 square metres, and(b) that is the subject of a lease for residential, business, motel, community or other such purposes,the Minister may, by notice published in the Gazette, declare that consent to the transfer or conveyance of the land is not required under this section.(4) If any land to which such a notice relates is land under the Real Property Act 1900, the Registrar-General must make an appropriate recording in respect of that land in the Register kept under that Act.(5) Subsections (1) and (2) do not apply to:(a) any transfer of a sublease or mortgage, or(b) any conveyance effected for the purpose of creating, assigning or extinguishing a sublease, mortgage or easement, or(c) any land the subject of a notice referred to in subsection (3).(6) The following provisions apply to the subleasing of land held under a lease (the head lease):(a) the sublease must specify the purpose for which the land may be used under the sublease, being a purpose that is consistent with the purpose for which the land may be used under the head lease,(b) the head lessee must notify the Commissioner of the granting of the sublease within 28 days after it is granted,(c) the head lessee must take all reasonable steps to ensure that the sublessee complies with the requirements of this Act and the conditions of the head lease with respect to the land.(6A) Subsection (6) does not prevent the sublease of land held under a head lease, with the consent of the Minister, for the purposes of enabling the carrying out of a filming project, and such a sublease may be granted, despite any provision of the head lease or this Act relating to the purposes for which the land may be used.(6B) The head lessee under subsection (6A) may grant a licence over land that is held under the head lease to enable the carrying out of a filming project (within the meaning of the Local Government Act 1993), but only with the consent of the Minister and on such terms and conditions as the Minister determines.(6C) Subsection (6B) does not require the consent of the Minister if the use of the land for the purpose of a filming project is authorised by the head lease or is generally consistent with the purposes for which the land may be used under the head lease.(6D) The head lessee must notify the Commissioner of the granting of a licence without the consent of the Minister as referred to in subsection (6C) within 28 days after it is granted.(6E) A head lessee who grants a licence under subsection (6B) or as referred to in subsection (6C) must take all reasonable steps to ensure that the licensee complies with the requirements of this Act and the conditions of the head lease with respect to the land.(6F) Consent may be given to the grant of a licence under subsection (6B) that will enable the carrying out of a filming project (within the meaning of the Local Government Act 1993), and the licence may be granted, despite any provision to the contrary in the head lease.(7) Land held under a lease under this Act may not be transferred or conveyed for the purpose of creating a forestry right (within the meaning of section 87A of the Conveyancing Act 1919) that consists in whole or in part of a carbon sequestration right otherwise than in accordance with Part 9D of this Act.
(1) A survey fee in accordance with the prescribed scale shall be paid by the lessee in respect of every lease applied for after the commencement of the Western Lands (Amendment) Act 1934 and before the commencement of the Western Lands (Crown Lands) Amendment Act 1989 and shall be so paid within such periods and by such amounts (together with interest at the rate of four per cent per annum) as may be determined by the Minister.(1A) If, immediately before the commencement of the Western Lands (Crown Lands) Amendment Act 1989, the survey fee payable under subsection (1) was wholly or partly unpaid, the annual rate of interest payable on the unpaid amount is increased to 8 per cent from that commencement.(1B) The Minister may adjust the instalments by which a survey fee referred to in subsection (1A) is payable so that the total amount owing (including interest at 8 per cent) is paid over the same or a longer period.(1C) The survey fee prescribed under subsection (1), together with interest at the annual rate of 8 per cent, is payable by the lessee in respect of a lease applied for after the commencement of the Western Lands (Crown Lands) Amendment Act 1989 and is so payable by such instalments as are determined by the Minister.(2) The Minister may waive payment of the whole or any part of any such survey fee.
18J Conditions attaching to leases: alteration by consent
Any covenant, condition, purpose or provision of a lease granted or brought under this Act whether before or after the commencement of the Western Lands (Amendment) Act 1934, may with the consent of the lessee be varied modified or revoked or added to by the Minister to such extent and on such terms (including terms relating to the rent or other money payable under the lease or relating to the use of land for the purposes of carbon sequestration within the meaning of section 87A of the Conveyancing Act 1919) as the Minister may deem desirable.
(1) Any person who is under the age of 18 years shall not be competent to apply for, or acquire from the Crown, any lease or conditional purchase under this Act.(2) Any person who is under the age of 18 years shall not be competent to hold a lease or conditional purchase under this Act.(3) Nothing in this section shall be taken to prevent the devolution or holding of a lease or conditional purchase under this Act devolving under the will or intestacy of a deceased holder.
18K Creation of folio of Register not to affect conditions etc
(1) Except in so far as a contrary intention appears:(a) any covenants, conditions, terms, reservations, exceptions, exemptions or provisions attaching or applying to land by virtue of this Act or an instrument made under this Act, and(b) any provisions of this Act or an instrument made under this Act applying to land,shall:(c) not cease to attach or apply to the land by reason only of the creation of a folio of the Register kept under the Real Property Act 1900 in respect of the land, and(d) to the extent that they are applicable, attach or apply not only to the land as a whole, but also to each and every part of the land.(2) The provisions of subsection (1) apply in addition to and not in derogation of any other provisions of this Act.
(1) The Minister may:(a) before the creation of a folio of the Register kept under the Real Property Act 1900 in respect of a lease under this Act, direct in writing that any covenant, condition, term, reservation, exception, exemption or provision attaching or applying to the lease shall cease to attach to apply to the lease upon the creation of the folio, and(b) after the creation of a folio of the Register kept under the Real Property Act 1900 in respect of a lease under this Act, direct in writing that any covenant, condition, term, reservation, exception, exemption or provision attaching or applying to the lease shall cease to attach or apply to the lease as from the date of the direction.(2) The Registrar-General shall give effect to a direction given under subsection (1).