Schedule 7 Purchase of land held under lease
(Parts 2, 3, 5 of Schedule 2)
Note. See also Schedule 7A in relation to the purchase of land held under a perpetual lease.
Part 1 Purchase of land not in a special land district
(1) The holder of:(a) a perpetual lease,(b) a term lease,(c) a special lease in perpetuity, or(d) a special lease of a term of years granted over an expired conditional lease (the holder of which had failed to apply for extension of the term of the lease),which is not in a special land district and is not liable to forfeiture may apply to purchase the whole or a part of the land comprised in the lease.(2) A transferee may, with the approval of the Minister and subject to such conditions as the Minister determines, adopt an application made by a previous holder.(3) An applicant may withdraw an application:(a) before it is granted, or(b) if an appeal is lodged against the determination of the purchase price by the Minister or the local land board—within 28 days after determination of the appeal,on payment of such costs as may be assessed by the Minister.
(1) If the application is made in respect of:(a) a special lease—the Minister may, at the Minister’s absolute discretion (exercised subject to clause 4 of Schedule 1 to the Forestry Act 2012), grant or refuse the application as to the whole or a part of the land applied to be purchased, or(b) any other lease—the Minister shall, subject to subclauses (2) and (3) and to clause 4 of Schedule 1 to the Forestry Act 2012, grant the application.(2) If the application is made in respect of a conditional lease, a Crown-lease, a settlement lease or a prickly-pear lease, the Minister shall not grant the application to the extent that it relates to land which is dedicated as a State forest or reserved from sale under the Forestry Act 2012.(3) If the application is made in respect of a Crown-lease, a settlement lease or a prickly-pear lease, the Minister shall not grant the application to the extent that it relates to land which is reserved from sale under the Crown Lands Acts.(4) The reservations from sale to be considered when dealing with an application to purchase a Crown-lease, settlement lease or prickly-pear lease include any reservations from sale notified after the application is made.
(1) On the granting of an application to purchase the land, or part of the land, comprised in a lease:(a) any areas required for roadways or other public purposes may be excluded from the land,(b) the boundaries of the land may be otherwise modified, and(c) easements for public access may be created over the land,at the discretion of the Minister.(2) Any areas excluded from the land for roadways or other public purposes or because of modification of boundaries are surrendered to the Crown.(3) The holder may appeal to the local land board against any decision:(a) to exclude land, or(b) to create an easement for public access,under this clause.(4) Sections 56–58 of the Principal Act (section 56 (3) excepted) apply to and in respect of the creation of an easement under this clause in the same way as they apply to and in respect of the creation of easements under section 56 of the Principal Act.(5) The local land board may hear and determine an appeal under subclause (3) and may make any order or decision which it considers appropriate.(6) The order or decision of the local land board or, on appeal, of the Land and Environment Court may include:(a) an order requiring the creation of an easement for public access under subclause (1) (c) instead of the exclusion of land under subclause (1) (a), or(b) a redetermination of the purchase price (or a requirement that the Minister redetermine the purchase price) having regard to any variation in the area of land to be purchased,or both.
(1) This clause applies to an application to purchase land comprised in a returned soldier’s special holding, a suburban holding, a town lands lease, a week-end lease or a special lease.(2) The Minister may limit the granting of an application to the surface of the land or to the surface and a stated depth below the surface.(3) Land excluded by such a limitation is surrendered to the Crown.
(1) An incomplete purchase under this Part is, in addition to being subject to the provisions of this Act, subject to the provisions of the Principal Act.(2) Clause 6 of Part 1 of Schedule 2 applies to and in respect of an incomplete purchase under this Part.(3) An incomplete purchase under this Part of land comprised in a lease is subject to such of the conditions applying to the lease as the Minister specifies at the time of granting the application to purchase.(4) If an application to purchase land comprised in a lease is not withdrawn in accordance with this Part, the title to the incomplete purchase of the land commences:(a) except as provided by paragraph (b)—from the date of granting by the Minister of the application, or(b) if there is a right of appeal against the exclusion of areas, creation of easements or determination of a purchase price—a date determined by the Minister.(4A) Despite subclause (4), if the Minister, in connection with the grant of an application to purchase land, imposes a restriction on use or public positive covenant in accordance with Part 4A of the Principal Act, the land remains vested in the Crown, or otherwise held on behalf of the Crown, until such time as the restriction on use or public positive covenant has been recorded on the relevant folio of the Register.(5) The date determined by the Minister shall not be earlier than:(a) if an appeal is lodged:(i) the withdrawal of the appeal, or(ii) 28 days after determination of the appeal (unless the applicant notifies the Minister in writing that the applicant does not wish to withdraw the application), or(b) if no appeal is lodged—the end of the period for lodgment of the appeal or, if the applicant earlier notifies the Minister in writing that the applicant has waived any right of appeal, the date of the notification.(6) In any folio of the Register created in respect of land purchased or being purchased under this Part the Registrar-General shall, if the land is affected by a profit à prendre reserved to the Crown under section 25F of the Forestry Act 1916, record a statement to the effect that the land is so affected.(7) Such a recording has effect as if the reservation of the profit à prendre had been included in an instrument of conveyance or transfer from the Crown.
Schedule 4 applies to and in respect of an incomplete purchase under this Part.
8 Payment of balance of purchase money etc on transfer
Clause 5 of Part 1 of Schedule 2 applies to and in respect of an incomplete purchase under this Part.
(1) If the purchase price of land comprised in a lease is not determined as at the date of the application to purchase, it is subject to adjustment under clause 11.(2) If:(a) an amount is shown in the records of the Department as the purchase price that would have been payable had the lease been converted into a purchase tenure before the commencement of this clause, or(b) a purchase price for the land is determinable under a provision repealed by the Principal Act,that amount or price is the purchase price of the land.(2A) For the purposes of subclause (2) (a), the purchase price of a closer settlement lease is the capital value only of the lease as shown in the records of the Department and does not include any balance of the capital value owing to the Crown for structural or other improvements in respect of the land.(3) In any other case, the purchase price of the land in a lease is the market value of the land determined by the Minister as at a date specified in subclause (4) or (5) in respect of the purchase.(4) The purchase price (except in respect of land which has been added to the lease) to be determined by the Minister shall be so determined:(a) if the land is comprised in a conditional lease taken up out of a classified area set apart before 23 March 1964 as available for conditional lease (under section 87 of the Crown Lands Consolidation Act 1913)—as at the date of the setting apart of the classified area,(b) if the land is comprised in a conditional lease taken up out of an area set apart as available for homestead selection or settlement lease (under section 4 of the Crown Lands Act Amendment Act 1903)—as at the date of application for the conditional lease,(c) if the land is comprised in:(i) a settlement lease,(ii) a homestead selection acquired under the Church and School Lands Act 1897, or(iii) a prickly-pear lease for a term of years,the title to which commenced before 23 March 1964, or is comprised in a conditional lease which is a conversion of any such holding—as at the date of application for the settlement lease, homestead selection or prickly-pear lease,(d) if the land is comprised in a special lease granted over an expired conditional lease (the holder of which had failed to apply for extension of the term of the lease)—as at the date at which a purchase price would have been determined in respect of the conditional lease if it had, before expiry, been converted into an additional conditional purchase, or(e) in any other case—as at the date of the application to purchase the land.(5) The purchase price of land which has been added to a lease is:(a) if the price at which the added land may be purchased was determined under the Crown Lands Acts before the commencement of this clause—the price so determined, or(b) in any other case—the price determined by the Minister as at the date of the application to purchase the lease.(6) Any improvements on the land which were made by the holder, or are owned or in the course of being purchased from the Crown by the holder, shall be disregarded in determining the market value of the land.(7) If it appears to the Minister that the market value of the land has been reduced by any act, default or neglect of the holder, the Minister shall determine the market value as if the reduction in value had not taken place.(8) If any areas are to be excluded for roadways or other public purposes or because of modification of boundaries, the purchase price shall be adjusted accordingly.
10 Objections to, and appeals against, determinations
(1) The Minister shall, on determining a purchase price for land comprised in a lease, give notice of the determination to the lessee.(2) The notice shall include information to the effect that the lessee may object to the purchase price determined by the Minister.(3) The Minister shall consider any objection lodged and by notice inform the objector:(a) whether the determination of the purchase price is to stand or be varied, and(b) that the objector, if dissatisfied with the Minister’s decision, may appeal as provided by subclause (4).(4) An appeal against the Minister’s decision lies:(a) to the local land board if the purchase price determined does not exceed $150,000 or such greater amount as may be prescribed, or(b) in any other case, to the Land and Environment Court.(5) The local land board, or the Court, on hearing the appeal, may affirm the Minister’s determination or substitute its own.
11 Adjustment of purchase price in line with Consumer Price Index
(1) The purchase price for land comprised in a lease (other than a purchase price determined as at the date of the application to purchase) shall be adjusted having regard to any movement in the Consumer Price Index between:(a) the quarter in respect of which the Index was last issued before the commencement of this clause, and(b) the quarter in respect of which the Index was last issued before the date of the application to purchase.(2) Any such adjustment of the purchase price shall not exceed the relevant movement in the Index.(3)–(5) (Repealed)
12 Adjustment of rent etc where part of a lease other than a special lease is purchased
(1) In this clause:rent base, in respect of a lease the rent of which is not subject to redetermination, means the amount used as the basis for adjusting the rent in line with movements in the Consumer Price Index.
(2) If part only of a lease (other than a special lease) is purchased, the remaining part of the lease shall be held subject to such proportionate parts of the rent and rent base as to the Minister seem appropriate.(3) If a part of a rent base apportioned under subclause (2) to a part of a lease is less than $100, that part of the rent base is increased to $100.(4) A part of a rent base apportioned under subclause (2) to a part of a lease (or such a part of a rent base as increased under subclause (3)) shall be taken, for the purposes of clause 5 of Schedule 5 (adjustment of certain rents in line with Consumer Price Index), to have been the annual rent of the lease as at the commencement of that clause.(5) The annual rent of the remaining part of a lease (as apportioned under subclause (2)) is, if it is less than the amount that would have been payable had the part always been a separate lease subject to a rent base ascertained in respect of it under this clause, increased to that amount.(6) This clause does not apply in respect of a lease if Part 1A of this Act applies in respect of the rent of the lease.
12A Adjustment of rent where part of land subject to lease is purchased
(1) This clause applies in respect of a lease if Part 1A of this Act applies in respect of the rent of the lease.(2) If part only of the land comprised in a lease (other than a special lease) is purchased, and the lease is subject to redetermination, the Minister may determine the rent in respect of the remaining part of the lease.(3) If part only of the land comprised in a lease (other than a special lease) is purchased, and the lease is not subject to redetermination, the Minister may proportionately adjust the rent and rent base for the lease.(4) A part of a rent base apportioned under this clause is taken, for the purpose of section 4D, to have been the annual rent of the lease as at the last due date occurring before 1 July 2004. The annual rent of the remaining part of the lease is to be determined accordingly.
13 Adjustment of rent, purpose and conditions on purchase of part of a special lease
(1) If part only of a special lease is purchased, the Minister shall redetermine the annual rent of the remaining part of the lease that is to be payable for the remainder of the current rent redetermination period applicable to the lease.(2) Clauses 11 and 12 of Schedule 5 apply to a redetermination of rent under this clause in the same way as they apply to a redetermination of rent under that Schedule.(3) The Minister may make such consequential alterations to the purpose and conditions of a special lease as the Minister considers are necessary when part of the land comprised in the lease is purchased.
(1) An applicant to purchase land comprised in a lease is liable, if a survey is necessary as a result of the purchase and the survey is carried out by the Crown, to pay to the Crown the cost of the survey as assessed by the Minister.(2) The Minister may permit an applicant to have any necessary survey carried out (at the applicant’s own expense) by a surveyor registered under the Surveying and Spatial Information Act 2002 in accordance with any special requirements of the Minister.(3) If a survey is to be carried out by the Crown, the Minister may require the applicant to pay the estimated cost before survey and refuse the application if the estimated cost is not paid.
15 Payment of purchase price by instalments
(1) Subject to this Act, the Principal Act and the regulations, the purchase price for land comprised in a lease, together with interest at the annual rate of 8 per cent, is payable by 33 equal annual instalments.(2) No instalment payable under this clause shall be less than $100 or, if another amount is prescribed, that other amount.(3) Subclause (2) does not apply in respect of any instalment of a purchase to which Part 1B of this Act applies.(4) This clause does not apply in respect of the purchase price of land if the application for purchase is an application to which clause 15A applies.
15A Payment of purchase price if application made on or after 1 July 2004
(1) This clause applies in respect of a purchase of land if the application for purchase is made on or after 1 July 2004.(2) The purchase price of land in respect of an application for purchase to which this clause applies is to be paid in full within such time as the Minister may require.(2A) However, the Minister may allow the purchase price to be paid by instalments on any basis that the Minister determines is appropriate. This subclause extends to any application for purchase that is pending as at the commencement of this subclause.(3) This clause does not apply in respect of an application for a purchase of land situated in the Western Division, subject to subclause (4).(4) The regulations may apply this clause, with or without modifications, in respect of an application to purchase land situated in the Western Division.
(1) On the commencement of title to an incomplete purchase under this Part the following amounts are payable to the Crown:(a) any stamp duty payable under the Stamp Duties Act 1920 in respect of the purchase,(b) any rent (including rent for Crown improvements) payable on the lease up to the commencement of title to the incomplete purchase,(c) any outstanding postponed or funded debts in respect of the lease (whether or not due for payment) together with interest up to the commencement of title to the incomplete purchase,(d) the cost of any necessary survey carried out by the Crown,(e) any other amounts determined by the Minister as payable on the commencement of the title.(2) Failing payment of any such amount within 3 months of demand, the purchase may be declared by the Minister to be forfeited and any money paid in connection with the purchase may (by the declaration) be forfeited to the Crown.(3) If there are any other debts outstanding in respect of the lease, they continue (subject to this clause and any increased rate of interest required by this Act) to be payable to the Crown in the same manner as they were payable before the commencement of title to the incomplete purchase.(4) If any amount payable to the Crown after the commencement of title to an incomplete purchase is payable in equal annual instalments over a period without the interest added, the Minister may vary the manner of payment so that the amount is payable in equal annual instalments over the same or a longer period with the interest added.
17 Retention of rights of mortgagees
If on the granting of an application to purchase land comprised in a lease the lease is subject to a mortgage, the mortgagee:(a) retains the rights, powers and remedies which are expressly or impliedly given to the mortgagee against the mortgagor by the mortgage, and(b) has, in respect of the land and to the extent that they are relevant, the same rights, powers and remedies as the mortgagee had in respect of the lease.
The granting of an application to purchase or the purchase of land comprised in a lease does not affect any easement which is appurtenant to or a burden on the land.
Part 2 Purchase of land in a special land district
(1) The holder of a perpetual lease which is in a special land district and is not liable to forfeiture may apply to purchase the land comprised in the lease.(2) A transferee may, with the approval of the Minister and subject to such conditions as the Minister determines, adopt an application made by a previous holder.(3) An applicant may withdraw an application:(a) before it is granted, or(b) if an appeal is lodged against the determination of the purchase price by the Minister or the local land board—within 28 days after determination of the appeal,on payment of such costs as may be assessed by the Minister.
The Minister shall, subject to this Part, grant an application to purchase the land comprised in a lease.
(1) An incomplete purchase under this Part is, in addition to being subject to the provisions of this Act, subject to the provisions of the Principal Act.(2) Clause 6 of Part 1 of Schedule 2 applies to and in respect of an incomplete purchase under this Part.(3) An incomplete purchase under this Part of land comprised in a lease is subject to such of the conditions applying to the lease as the Minister may, after having regard to the views of the Water Administration Ministerial Corporation, specify at the time of granting the application to purchase.(4) If an application to purchase land comprised in a lease is not withdrawn in accordance with this Part, the title to the incomplete purchase of the land commences:(a) if the lease:(i) was an irrigation farm lease of an area exceeding 2 hectares, or(ii) was a non-irrigable lease of an area exceeding 2 hectares used for farming purposes,from the date of granting by the Minister of the application, or(b) in any other case—from a date determined by the Minister.(4A) Despite subclause (4), if the Minister, in connection with the grant of an application to purchase land, imposes a restriction on use or public positive covenant in accordance with Part 4A of the Principal Act, the land remains vested in the Crown, or otherwise held on behalf of the Crown, until such time as the restriction on use or public positive covenant has been recorded on the relevant folio of the Register.(5) The date determined by the Minister shall not be earlier than:(a) if an appeal is lodged against the determination of the purchase price:(i) the withdrawal of the appeal, or(ii) 28 days after determination of the appeal or, if the applicant earlier notifies the Minister in writing that the applicant does not wish to withdraw the application, the date of the notification, or(b) if no appeal is lodged—the end of the period for lodgment of the appeal or, if the applicant earlier notifies the Minister in writing that the applicant has waived any right of appeal, the date of the notification.
Schedule 4 applies to and in respect of the land comprised in an incomplete purchase under this Part.
Land comprised or formerly comprised in an incomplete purchase under this Part shall not be used to plant:(a) an area of orchard or vineyard to a greater extent than 5 000 square metres or, if some other area is specified in the conditions attached to the land, that other area,(b) any fruit trees, vines or plantings or a specified class of fruit trees, vines or plantings, or(c) an area of fruit trees, vines or plantings, or an area of a specified class of fruit trees, vines or plantings, in excess of a specified area,if a condition to that effect was attached to the land at the time when the application to purchase was made (unless the planting is in accordance with an approval or consent given as provided by the condition).
8 Payment of balance of purchase money etc on transfer
Clause 5 of Part 1 of Schedule 2 applies to and in respect of an incomplete purchase under this Part in the same way as it applies to and in respect of incomplete purchases under Part 1 of Schedule 2.
(1) Subject to any adjustment under subclause (4), the purchase price of land comprised in:(a) an irrigation farm lease of an area exceeding 2 hectares, or(b) a non-irrigable lease used for farming purposes which is of an area exceeding 2 hectares,is, unless it is a lease to which land has been added after the commencement of this clause, 20 times the annual rental of the lease immediately before the commencement of this clause.(2) If, after the commencement of this clause, land is added to the land comprised in a lease referred to in subclause (1) (a) or (b), the purchase price of the land is the sum of:(a) 20 times the annual rent of the lease immediately before that commencement, subject to any adjustment under subclause (4), and(b) the price determined by the Minister for the added land as at the date of the application to purchase.(3) If:(a) the purchase is of land in the land district of Coleambally, and(b) a remission in annual rental was, by reason of the distance of the land from railway facilities, in force as at 30 June last preceding the date of the application to purchase,the annual rental of the lease is, for the purposes of this clause but subject to subclause (5), the annual rental that was payable on that 30 June having regard to that remission.(4) Subject to subclause (5), the purchase price shall, in the same way as is provided by clause 11 of Part 1, be adjusted in line with any movements in the Consumer Price Index after the commencement of this clause.(5) Subclauses (3) and (4) do not apply in relation to so much of the annual rental for, or so much of the purchase price of, the lease as is attributable to land added to the lease after the commencement of this clause.(6) In the case of a purchase of land comprised in a lease to which subclauses (1) and (2) do not apply, the purchase price for the land is the market value as determined by the Minister as at the date of the application to purchase.(7) Any improvements on land being purchased which were made by the holder, or are owned or in the course of being purchased from the Crown by the holder, shall be disregarded in determining the market value of the land.(8) If it appears to the Minister that the market value of the land has been reduced by any act, default or neglect of the holder, the Minister shall determine the market value as if the reduction in value had not taken place.
10 Objections to, and appeals against, determinations
(1) The Minister shall, on determining a purchase price under clause 9 (6) for land comprised in a lease, give notice of the determination to the lessee.(2) The notice shall include information to the effect that the lessee may object to the purchase price determined by the Minister.(3) The Minister shall consider any objection lodged and by notice inform the objector:(a) whether the determination of the purchase price is to stand or be varied, and(b) that the objector, if dissatisfied with the Minister’s decision, may appeal as provided by subclause (4).(4) An appeal against the Minister’s decision lies:(a) to the local land board if the purchase price determined does not exceed $150,000 or such greater amount as may be prescribed, or(b) in any other case, to the Land and Environment Court.(5) The local land board or the Court, on hearing the appeal, may affirm the Minister’s determination or substitute its own.
11 Payment of purchase price and other amounts
Clauses 15, 15A and 16 of Part 1 apply to and in respect of incomplete purchases under this Part in the same way as they apply to and in respect of incomplete purchases under Part 1.
12 Retention of rights of mortgagees
Clause 17 of Part 1 applies to and in respect of incomplete purchases under this Part in the same way as it applies to and in respect of incomplete purchases under Part 1.
The granting of an application to purchase or the purchase of land comprised in a lease does not affect any easement which is appurtenant to or a burden on the land.