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.