Division 3Division 3 Leases of public water land for aquaculture
163 Grant of aquaculture lease
(1) Subject to this Part, the Minister may, on application or by auction, public tender or ballot, lease an area of public water land for use for aquaculture.(2) A lease of an area may be of the whole area or may be limited to a stratum of the area.(3) A lease must specify the type of aquaculture authorised to be undertaken within the leased area. This subsection does not authorise the use of a lease without an aquaculture permit.(4) The regulations may prescribe or provide for the form of an aquaculture lease granted or renewed under this Part and may provide in the form for the inclusion of such additional covenants and conditions as the Minister may determine.(5) The term of any lease granted under this section must not exceed 15 years.(6) The Minister may lease land under this section by auction, public tender or ballot even though an application has been made for a lease of the land.(7) The Minister must not grant a lease on an application unless satisfied that:(a) the land to which the application relates is available for lease, and(b) the application is consistent with any relevant development plan.(7A) Before granting a lease on an application, the Minister must:(a) cause to be published in the Gazette and on the website of the Department a notice of receipt of the application, specifying in the notice that written objections to the granting of the lease may be lodged with the Director-General before the expiration of a period specified in the notice, and(b) consider any objections to the granting of the lease that are lodged within the period specified in the notice for the making of written objections.(7B) The Minister is not required to comply with subsection (7A) if:(a) the area to which the application relates is the subject of a development plan and the type of aquaculture proposed is a type that the development plan provides is suitable in that area, or(b) the person to whom the lease is to be granted has obtained a development consent under Part 4 of the Environmental Planning and Assessment Act 1979, or approval under Part 3A or Part 5.1 of that Act, to carry out development on the proposed leased area for the purposes of the aquaculture concerned.(8) The regulations may make provision for or with respect to applications for aquaculture leases or to auctions, public tenders and ballots for aquaculture leases.
(1) An aquaculture lease vests in the lessee, the lessee’s executors, administrators, and assigns:(a) the exclusive right during the currency of the lease to undertake the type of aquaculture specified in the lease, subject to the provisions of or made under this Act and the provisions of the lease, and(b) the ownership of all fish or marine vegetation specified in the lease that are within the leased area.(2) An aquaculture lease does not confer the right of exclusive possession of the leased area.(3) An aquaculture lease is subject to the public right of fishing and to any right recognised by the regulations, except as provided by subsection (1) and the other provisions of or made under this Act.(4) Nothing in this section authorises a person to interfere with or damage anything on the leased area.
(1) The Minister is required to determine the rental of an aquaculture lease granted or renewed under this Division on the basis of the area of the lease.(2) The Minister may redetermine the rental of an aquaculture lease at such periods, being not less than 1 year, as the Minister thinks fit.(3) The amount paid in connection with an auction or a public tender for an aquaculture lease does not constitute the rental payable for the lease.(4) The regulations may make provisions for or with respect to the rental for aquaculture leases.(5) In particular, the regulations may prescribe a minimum rental for an aquaculture lease, either in respect of leases generally or leases of a particular class.
(1) If the rental of an aquaculture lease is unpaid after the date on which payment was due, the Minister may charge interest on the overdue amount at the rate payable from time to time in respect of judgments of the Supreme Court or, if some other rate is prescribed by the regulations, at that rate.(2) Interest may be charged for each day that has elapsed between the date on which payment is due and the date of payment.(3) Interest charged on the overdue rental of an aquaculture lease under this section is taken to be part of the rental.
(1) The Minister may, on application by the lessee, renew an aquaculture lease for a term not exceeding 15 years.(2) The Minister may renew the lease if satisfied the area should continue to be available for aquaculture.(3) However, a lessee is entitled to the renewal of the lease if it is the first renewal of the lease (under this Act or its predecessor) after the grant of the lease.(4) Subject to this Part, the covenants and conditions on which a renewal of an aquaculture lease may be granted under this section are the same as the covenants and conditions on which the Minister could, at the time of the renewal, grant such a lease.(5) The Minister is to notify a lessee, at least 90 days before the lease is due to expire, of the date of expiry. The Minister may accept an application for the renewal of a lease that is made after the date of expiry.(6) If an application is made for the renewal of an aquaculture lease and the renewal is not granted before the end of the lease:(a) the lease continues in force until the renewal is granted or refused, and(b) the renewal may be granted even though the lease would, but for this subsection, have come to an end.(7) The regulations may make provision for or with respect to applications for the renewal of aquaculture leases.
(1) If a lessee duly applies for a renewal of an aquaculture lease of an area, the lessee has a preferential right to a lease of the area, as against any applicant or other person.(2) Even though a former lessee has not duly applied for a renewal of an aquaculture lease of an area, the former lessee has a preferential right to such a lease of the area, as against any applicant or other person, if that lessee applies for an aquaculture lease of the area within 30 days after the end of the expired lease.(3) A preferential right does not arise under this section unless the Minister is satisfied the lessee or former lessee has substantially observed and performed the covenants and conditions of the lease and is satisfied the area should continue to be available for aquaculture.(4) Nothing in this section requires the Minister to grant or renew an aquaculture lease.
(1) The Minister may require as a condition of granting or renewing a lease, or of granting consent to the surrender of a part of a lease, that the lessee have a survey of the area carried out to a standard approved by the Minister.(2) The Minister:(a) may, by notice in writing served on the lessee of a leased area, require the lessee to have a survey of the area carried out to a standard approved by the Minister within such period as may be specified in the notice, or(b) may, if the lessee fails to comply with the notice, arrange for a survey of the area to be carried out to such a standard at the lessee’s expense.(3) The lessee of a leased area or any other person must not obstruct a survey carried out for the purposes of subsection (2) (b).Maximum penalty: 50 penalty units.
(4) A failure to comply with a notice served under subsection (2) (a), or a contravention of subsection (3), is a breach of a condition of the aquaculture lease concerned.(5) The cost of carrying out a survey under subsection (2) (b) is to be regarded as an additional amount of rental payable by the lessee on demand by the Minister.(6) The Minister may enter into arrangements with representatives of the commercial aquaculture industry for the payment of the cost of carrying out surveys under this section by lessees or on their behalf.
170 Lessee may fence leased area in certain cases
(1) The Minister may, on the application of the lessee of a leased area, authorise the lessee to erect a fence on the area subject to such conditions as may be specified in the authority.(2) The Minister must not authorise the erection of a fence unless the Minister has had regard to any interference to navigation that could be caused by the erection of the fence.(3) If a fence is erected on a leased area otherwise than in accordance with an authority granted under this section or a condition to which such an authority is subject is contravened, the lessee:(a) is taken to have contravened a condition of the lease, and(b) is guilty of an offence.Maximum penalty: 50 penalty units.
(4) If a fence is erected on a leased area otherwise than in accordance with an authority granted under this section or a condition to which such an authority is subject is contravened, the Minister or an agent of the Minister may:(a) enter the area, and(b) carry out such work as is necessary to remove the fence or to achieve compliance with the condition.(5) The Minister may sell or otherwise dispose of anything removed in accordance with subsection (4). The proceeds of such a sale are to be applied towards the costs and expenses of:(a) the sale, and(b) the disposal of anything removed but not sold, and(c) the carrying out of the work concerned.If the proceeds of sale (and of any forfeited bond or other security) are insufficient to enable those costs and expenses to be recouped, the balance can be recovered as a debt by the Minister by proceedings brought in a court of competent jurisdiction.
(5A) A reference in this section to a fence on a leased area includes (but is not limited to) a reference to a barrier or other structure located in or on the area to prevent, or dissipate the force of, waves entering the area.(6) Compensation is not payable to a lessee in respect of anything done under this section.
171 Improvements on an expired lease
(1) All improvements on leased areas vest in the State when the term of the lease expires or is otherwise terminated under this Part.(2) The Minister may allow the former lessee to remove any such improvements.(3) The Minister may, within 1 year after the termination of a lease, require the former lessee to remove any such improvements within the period notified in writing to the former lessee. The former lessee is guilty of an offence if the former lessee fails, without reasonable excuse, to do so.Maximum penalty: 100 penalty units.
(4) If the former lessee fails to remove improvements in accordance with a notice under subsection (3), the Minister or an agent of the Minister may:(a) enter the area, and(b) carry out such work as is necessary to remove the improvements.(5) The Minister may sell or otherwise dispose of anything removed in accordance with subsection (4). The proceeds of such a sale are to be applied towards the costs and expenses of:(a) the sale, and(b) the disposal of anything removed but not sold, and(c) the carrying out of the work concerned.If the proceeds of sale (and of any forfeited bond or other security) are insufficient to enable those costs and expenses to be recouped, the balance can be recovered as a debt by the Minister by proceedings brought in a court of competent jurisdiction.
(6) A lessee who has applied for a renewal of the lease of a leased area cannot be required, as a condition of the granting of the renewal, to pay for any improvements to the area.
172 Subletting with Minister’s consent
(1) The lessee of a leased area may sublet the area or a part of the area, but only with the consent in writing of the Minister.(2) The giving of such a consent may be made subject to the payment of such fee as may be prescribed by the regulations.
173 Transfer with Minister’s consent
(1) The lessee of a leased area may transfer the lease, but only with the consent in writing of the Minister.(2) The giving of such a consent may be subject to conditions and to the payment of such fee as may be prescribed by the regulations.
(1) The lessee of a leased area may, with the consent in writing of the Minister, surrender the lease or a part of the leased area to the Minister.(2) The giving of such a consent may be made subject to conditions and to the payment of such fee as may be prescribed by the regulations.(3) A surrender under this section does not operate to extinguish any debt to the Crown or Minister relating to the lease concerned, except to the extent the Minister directs.(4) On surrender of part of the leased area, the Minister may, with the agreement of the lessee, redetermine the rental of the lease.
175 Minister can determine access way
(1) The lessee of a leased area, or the owner or occupier of any land adjoining the area, may apply in writing to the Minister for the determination of an access way over the area.(2) On receiving such an application, the Minister must either:(a) determine an access way over the area concerned, or(b) refuse the application.Before determining an access way, the Minister must, in the case of an application made by the owner or occupier of adjoining land, serve on the lessee notice of the application.
(3) In determining an access way, the Minister may:(a) specify what notice of the access way is to be given, and(b) impose such conditions on the lessee, and direct the lessee to carry out such work for facilitating access by such way, as the Minister considers reasonable.(4) The Minister may refuse an application by the owner or occupier of adjoining land unless satisfactory arrangements are made for the payment by the owner or occupier of the cost of the work required to be carried out for the access way, and of the cost of compensation for the withdrawal from the lease of land for the access way.(5) The Minister may determine an access way without an application, but only after giving notice to the lessee concerned.(6) The Minister may vary or rescind a determination, condition or direction made, imposed or given under this section.(7) A failure to comply with a condition imposed on, or a direction given to, a lessee under this section is taken to be a breach of a condition of the lease of the area to which the condition or direction relates.(8) The Minister may under section 176 withdraw from an aquaculture lease any part of the leased area determined under this section to be an access way.(9) An access way determined under this section affects land brought under the provisions of the Real Property Act 1900 only when the Registrar-General has made an appropriate recording in the folio for the land.(10) A public authority or trustees in which a leased area is vested may exercise the functions of the Minister under this section.(11) An access way determined under this section is not affected by any renewal or transfer of the lease.
176 Power to withdraw land from lease
(1) The Minister may, by notice published in the Gazette, withdraw from an aquaculture lease any land (whether the whole or any part of the leased area) required for a public purpose.(2) A public purpose is any public purpose for which land may, under section 136 of the Crown Lands Act 1989, be withdrawn from a lease under that Act.(3) On publication of the notice, the lessee becomes entitled to compensation. The provisions of the Land Acquisition (Just Terms Compensation) Act 1991 relating to the payment of compensation for land acquired by compulsory process apply (with such modifications as are prescribed by the regulations) to the payment of compensation under this section.(4) Compensation under this section:(a) is payable from money to be provided by Parliament, or(b) if the area concerned is withdrawn at the request of a public authority—is payable by that public authority.(5) The Minister may, by notice published in the Gazette, revoke or modify a withdrawal under this section.(6) A withdrawal under this section does not operate to extinguish any debt to the Crown or Minister relating to the land withdrawn, except to the extent the Minister directs.(7) On withdrawal of land from a lease under this section, the Minister is to redetermine the rental of the lease in accordance with this Part.(8) A provision of this section does not apply to an aquaculture lease to the extent that it is inconsistent with a special condition of the lease relating to the withdrawal of land from the lease for a public purpose.
177 Power of Minister to cancel leases in certain cases
(1) The Minister may, by notice served on the lessee under an aquaculture lease, call on the lessee to show cause why the lease should not be cancelled on any one or more of the following grounds:(a) the leased area is not being used for the purposes for which the lease was granted or no aquaculture is being undertaken in the area,(b) the leased area is so polluted that fish or marine vegetation on the area are unfit for human consumption and the pollution is likely to continue indefinitely,(c) the lessee has not paid any rental or other amount due under the lease,(d) the lessee is in breach of any other condition of the lease for which the lease authorises its cancellation under this section.(2) After 1 month from the date of service of the notice the Minister may, by notice published in the Gazette, cancel the lease.(3) Before cancelling a lease, the Minister must consider any representations made by the lessee.(4) A lessee may apply to the Administrative Decisions Tribunal for a review of the cancellation of the lease.
178 Areas of public water land may be excluded from leasing
(1) The Minister may exclude any public water land from being leased under this Part.(2) The Minister is to publish details of any such excluded area in such manner as the Minister thinks fit.
179 Protection of leased areas
(1) A person, other than the lessee or the lessee’s agents or employees, must not:(a) remove, or in any way injure or interfere with, any fish or marine vegetation cultivated or kept within the leased area or any thing used for the purpose of aquaculture on a leased area, without the consent of the lessee, or(b) deposit anything on a leased area or dredge or dig within a leased area, except in accordance with Division 3 of Part 7 or, if that Division does not apply, by direction or authority of the lessee or the Minister.Maximum penalty: In the case of a corporation, 100 penalty units or, in any other case, 50 penalty units.
(2) This section does not apply to the placing of any thing on a leased area for the purpose of navigation.(3) A person who is found guilty of an offence against this section is liable to compensate the lessee for all damage that the lessee has sustained as a result of the person’s unlawful act. The lessee may, by proceedings brought in a court of competent jurisdiction, recover as a debt the amount of that compensation.(4) If the Minister fails to authorise an act referred to in subsection (1) (b) at the request of a public authority or trustees in whom the land concerned is vested, the matter may be referred to the Premier for resolution by the Minister responsible for the authority or trustees.
180 Leased area under Real Property Act 1900
When the land comprised in an aquaculture lease has been brought under the provisions of the Real Property Act 1900, any dealing with the lease must be effected in accordance with that Act.