Queensland Bills Explanatory Notes Queensland Bills Explanatory Notes[Index] [Search] [Download] [Bill] [Help]
1
Natural Resources and Other Legislation Amendment
Bill (No. 2) 2003
NATURAL RESOURCES AND OTHER
LEGISLATION AMENDMENT BILL (No. 2)
2003
EXPLANATORY NOTES
Short title
Natural Resources and Other Legislation Amendment Bill (No. 2) 2003
Policy objectives of the Bill
The legislative amendments to the Land Act 1994, the Forestry Act 1959
and the Land Title Act 1994 seek to provide a mechanism, consistent with
that which is available on freehold land, to recognise statutory rights to,
and facilitate commercial dealings in, natural resource products (including
carbon commodities, trees and vegetation) on leasehold land in
Queensland. Such a mechanism is currently only available for owners of
freehold land. The proposed amendments seek to enable a lessee of a
lease, where the purpose and conditions of the lease allow it to be used for
agricultural or timber plantation purposes, to enter into contracts with
interested parties for the ownership, use and economic benefits of natural
resource products of trees owned by the lessee as an improvement under
the Land Act 1994. The agreement will be able to be registered as a profit a
prendre under the Land Act 1994.
The proposed miscellaneous amendments to the Land Act 1994, the
Acquisition of Land Act 1967 and the Valuation of Land Act 1944 provide
clarity and consistency both within the legislation and with other
legislation as a result of experience gained in using the Acts since their
commencement.
Why the Proposed Legislation is Necessary
In Queensland, under the Forestry Act 1959, owners of freehold land and
other interested parties can enter into contracts about the ownership, use
and economic benefits of natural resource products (such as carbon
commodities, trees and vegetation) on freehold land in Queensland. The
2
Natural Resources and Other Legislation Amendment
Bill (No. 2) 2003
contracts may include a common law mechanism ("profit a prendre")
enabling separation of ownership and/or interests in the natural resource
product and subsequent registration on the indefeasible land title as per the
Land Title Act 1994. This mechanism is not currently available for
leasehold land.
A number of lessees have for some time indicated a desire to participate
in a range of forestry activities on State leasehold land, including the
establishment of plantations. The proposed legislative amendments will
provide a mechanism to establish commercial dealings in the natural
resource products of plantations, such as timber and carbon stored in or
sequestered by trees.
Extending the instrument of profit a prendre to plantations on leasehold
land will deliver the environmental benefits of an increased number of trees
by providing an incentive for lessees to plant trees. It will also provide an
important diversification opportunity for lessees, particularly where part or
all of a property is no longer suitable for traditional rural production.
Leases issued for plantation or agricultural purposes can be used for
plantations. There are clear environmental benefits from the planting and
retention of vegetation.
In addition, it will also position Queensland lessees to take full
advantage of forestry investment in the event that a possible emissions
trading scheme is established. Enabling carbon trading on leasehold land
will prevent two separate regimes evolving for freehold and leasehold land
and will simplify the process for lessees wishing to enter the emerging
market in carbon.
The miscellaneous changes to the Land Act 1994, Acquisition of Land
Act 1967 and Valuation of Land Act 1944 provide for minor amendments to
administrative provisions to tidy up inconsistencies and to ensure improved
efficiency in processing associated dealings.
Estimated cost of implementation to Government
There is no cost of implementation to government in these amendments.
Consistency with Fundamental Legislative Principles
There are no fundamental legislative principle issues arising from the
Bill. The legislation will simply provide a mechanism, consistent with that
which is available on freehold land, to recognise statutory rights to, and
3
Natural Resources and Other Legislation Amendment
Bill (No. 2) 2003
facilitate commercial dealings in, natural resources products (including
carbon commodities, trees and vegetation) owned by the lessee on
leasehold land in Queensland.
Consultation
Initial consultation was undertaken through individual discussion with
key stakeholders as part of consultation on the Draft Rural Leasehold Land
Strategy. Extensive consultation with a broad range of stakeholders was
undertaken on the profit a prendre provisions of the draft Bill. The Local
Government Association of Queensland has been consulted on the
miscellaneous amendments and Agforce has been consulted on the
proposed amendments to Valuation of Land Act 1944. The Department of
Primary Industries, State Development, Premier and Cabinet, Treasury and
the Environmental Protection Agency were consulted extensively
throughout the development of the Authority to Prepare.
PART 1--PRELIMINARY
Clause 1 provides the short title of the Act--"The Natural Resources
and Other Legislation Amendment Act (No. 2) 2003".
Clause 2 provides for the commencement of the Act by proclamation.
PART 2--AMENDMENT OF ACQUISITION OF LAND
ACT 1967
Clause 3 names the Act to be amended.
Clause 4 amends the definition of "constructing authority" in section 2.
The current wording of the definition of "constructing authority" in section
2 could be interpreted to mean that a local government can be a
constructing authority only if it is authorised by an Act to take land. This is
not the intent. The amendment makes it clear that a local government or a
4
Natural Resources and Other Legislation Amendment
Bill (No. 2) 2003
person authorised by an Act to take land for any purpose can be a
constructing authority.
PART 3--AMENDMENT OF FORESTRY ACT 1959
Clause 5 names the Act to be amended.
Clause 6 amends section 61J.
The clause extends the instrument of profit a prendre, which is available
on freehold land, to natural resource products of plantations on leasehold
land in Queensland, where the lessee owns the trees as an improvement
under the Land Act 1994. It enables a lessee, in certain circumstances, to
enter into a contract with another person about natural resource products
located on the lessee's leasehold property and for that contract to be
registered as a profit a prendre on the lease.
As for freehold land, the contractual agreement will enable parties to
obtain partial or absolute control over natural resource products of trees
and vegetation on the leasehold land. This is to allow a person other than
the lessee to have access to, manage, harvest or otherwise deal with the
natural resource products of the trees or vegetation on the property.
The right of partial or absolute control of the trees occurs by way of
vesting ownership, use or economic benefits to another party. Importantly,
vesting to another party does not create an interest in the land itself. The
intention of this is to separate the ownership of the land and the rights
intrinsic to the property from the contractual rights of a person in respect to
natural resource products.
To ensure that the contractual rights are recognised and capable of being
ascertained by any potential buyer, the contract may be registered as a
profit a prendre under the Land Act 1994.
PART 4--AMENDMENT OF LAND ACT 1994
Clause 7 names the Act to be amended.
5
Natural Resources and Other Legislation Amendment
Bill (No. 2) 2003
Clause 8 amends section 5. In apparent contradiction of the statement
made in section 5 (2), the footnote to that sub-section indicated that the
Governor in Council could not grant, in fee simple, layers and strata above
and below the surface of the land. The amendment draws attention to
section 14(3) in the footnote, thereby making it clear that the Governor in
Council may grant in fee simple layers and strata above and below the
surface of land, provided such land is above high-water mark.
Clause 9 amends section 26 by correcting an anomaly that prevents the
delineation of the boundaries of a reservation for public purposes in a lease
when that reservation is being resumed. Section 26 currently refers to
deciding the boundaries of a reservation in a deed of grant and deed of
grant in trust but not in a lease. The resumption provisions of the Act,
sections 228 to 233, refer to a lease, a deed of grant or a deed of grant in
trust.
Clause 10 amends section 33. The amendment clarifies the reasons for
revoking a reserve by including the situation where the Minister is satisfied
a more appropriate tenure is required. The current reasons for revoking a
reserve (no longer needed for a community purpose or needed in the public
interest for a different use), do not cover the situation where an
"operational" reserve, for example a reserve for police purposes, should
now be held under a more appropriate tenure such as freehold in
accordance with the Government Asset Management System Guidelines.
Clause 11 amends section 38 by defining which parties must be advised
of the cancellation of a deed of grant in trust; the effect of that cancellation
on the right to remove improvements; and, in order to remove doubt,
advising that no person has a right to claim compensation for the
cancellation of a deed of grant in trust under the authority of section 38.
Clause 12 amends section 45 by permitting the recording of a trustee's
change of name in the land register and, in light of current privacy
requirements, removing the requirement that the address of a trustee of
trust land must be recorded in the land register.
Clause 13 amends section 55 by defining the effect of a surrender of all
or part of a deed of grant in trust on registered interests.
Clause 14 amends section 57 by defining the description requirements of
a trustee lease.
Clause 15 inserts new section 57A to allow for the amendment of a
trustee lease and defines the limitations and requirements of that
amendment.
6
Natural Resources and Other Legislation Amendment
Bill (No. 2) 2003
Clause 16 amends section 58 by further defining the rights of a lessee of
a trustee lease and the rights of a sublessee of a sublease of a trustee lease;
and by permitting the release of a mortgage registered over a trustee lease
or sublease. This amendment is required to remove any legal doubt on the
validity of a surrender of a trustee lease or sublease or the release of a
mortgage.
Clause 17 amends section 101 by removing any doubt that the Minister's
approval to a road closure application may be subject to conditions.
Clause 18 replaces the current section 105. As the section currently
reads, the interest created by a road licence appears to be an interest greater
than that normally created by a statutory licence. If the Minister is satisfied
the land should be used for more appropriate purposes (for example, as a
Reserve for Environmental purposes), the present wording of section
105(1)(a) limits the Minister's discretion to cancel a road licence unless the
road "is again needed for public use as an open road". As a licence does
not create a compensatory interest in land, the replacement of section 105
will ensure all licences created under the Land Act 1994 are dealt with in an
equitable manner. The new section 105 also provides for the partial
cancellation or surrender of a road licence.
Clause 19 amends section 122 by allowing a deed of grant to be granted
to a local government, in priority, provided the Minister decides that the
land is required for a public purpose.
Clause 20 amends section 123 by further defining the priority criteria for
the grant of a lease or a deed of grant over unallocated State land to include
an applicant who held a significant interest in the land before it became
unallocated State land. Section 123 requires minor amendment to
recognise the rights of a holder of a significant interest in a land parcel
being considered for the issue of a priority deed of grant. "Significant
interests" would include for example, a deed of grant in trust or a lease
issued for more than twenty years that would change hands in the market
place at close to freehold value. This will bring consistency with the
conversion and priority lease provisions of the Land Act 1994 as well as the
Government's policies for disposal of Government owned land in priority.
Clause 21 amends section 160 to alter the emphasis from the Minister
(or delegate) advising decisions in writing, to the Minister (or delegate)
making the decision with an appropriate officer advising the applicant in
writing accordingly. This will streamline administrative procedures and
bring them into line with normal correspondence protocols.
7
Natural Resources and Other Legislation Amendment
Bill (No. 2) 2003
Clause 22 amends section 163 to clarify that, where a new lease of part
only of a former lease over a reserve is offered, the balance of the land
remains reserve, i.e. it does not become unallocated State land. As section
163 is currently worded, if it is proposed to renew a lease over part only of
the former lease area, the balance becomes unallocated State land. This
does not take account of the situation where the lease was over a reserve
and the balance should remain reserve.
Clause 23 amends section 168 to alter the emphasis from the Minister
(or delegate) advising decisions in writing, to the Minister (or delegate)
making the decision with an appropriate officer advising the applicant in
writing accordingly. This will streamline administrative procedures and
bring them into line with normal correspondence protocols.
Clause 24 amends section 174 to alter the emphasis from the chief
executive (or delegate) advising the Governor in Council's decision in
writing, to an appropriate officer advising the applicant of the Governor in
Council's decision in writing. This will streamline administrative
procedures and bring them into line with normal correspondence protocols.
Clause 25 amends section 177 to provide that a permit issued for three
months or less is not a tenure that may be recorded in the land registry.
This provides a more informal mechanism to give authority to use
unallocated State land, reserve or road for periods of three months or less
for situations where the use of an area is required for a short period for a
specific purpose e.g. travelling circuses and shows, batching plants and
stockpile sites.
Clause 26 amends section 196 to allow action for recovery of monies
owing as well as the forfeiture or cancellation of a lease, licence or permit.
In some circumstances the Department may wish to forfeit a lease or cancel
a licence or permit, thereby reclaiming the land, as well as recover
outstanding monies. The amendment makes it clear that both actions may
be taken.
Clause 27 amends section 197 to allow notice to be given about recovery
of monies owing as well as the cancellation of a licence or permit. The
amendment makes it clear that notice may be given in respect of both
actions.
Clause 28 amends section 203 to make it clear that a condition of lease
may be about the transfer or sublease of the lease, for example a condition
may prohibit a transfer or sublease of the lease. Not allowing a transfer
8
Natural Resources and Other Legislation Amendment
Bill (No. 2) 2003
would be appropriate say for a significant development where a detailed
tender process was undertaken.
Clause 29 amends section 211 to make it clear that the conditions of a
lease may be reviewed every 15 years after the "start" of the lease, which is
easily identifiable, rather than the "issue" of the lease (i.e. the date the
Governor in Council granted the lease) which is not easily identified.
Clauses 30 and 31 amend sections 246 and 247 to include deeds of grant
in trust in the classes of land that relate to payment for improvements
received from incoming lessees or buyers and the State's obligation to pay
any such amount received by it to the previous holder of the land or owner
of the improvements.
Clause 32 amends section 274A to prevent lessees who have planted
trees as a requirement of a compliance notice from owning them as an
improvement to the property, thereby preventing the trees from becoming
the subject of a profit a prendre.
Clause 33 amends section 322 to make it clear that a lease, licence or
sublease may not be transferred if a provision of the Land Act 1994 or a
condition of the lease, licence or sublease prohibits the transfer. This
clause supports the amendment in clause 28.
Clause 34 amends section 328 to allow surrender of part of a sublease.
Clause 35 amends section 336 to ensure that Ministerial approval is
required to register an amendment of a registered sublease, as for
amendment of an easement.
Clause 36 amends section 362 to provide for the grant of an easement
over a deed of grant in trust.
Clauses 37 to 40 amend sections 363, 368, 369B and 371 to delete
"permittee" from and include "trustee of land granted in trust" in the
definition of "owner of the land" when dealing with easements over land
granted in trust or non-freehold land.
Clause 41 amends section 372 to define when an easement over land
granted in trust ends and provide for the continuation of a public utility
easement over a deed of grant in trust. This is necessary as a result of the
inclusion of the ability to grant an easement over a deed of grant in trust in
clause 36.
Clause 42 inserts new Division 8B - Profits a prendre.
9
Natural Resources and Other Legislation Amendment
Bill (No. 2) 2003
Section 373E defines the circumstances under which a profit a prendre
applies on leasehold land.
Section 373F defines the terms "lease" and "natural resource". Leases
over State Forests and reserves are not included.
Section 373G allows for the registration of a document of profit a
prendre over a lease, similar to registration for freehold land under the
Land Title Act 1994.
Section 373H cross-references the amendments to the Land Title Act
1994, as outlined in clause 47, to allow the registration of profits that
exist over two different land tenures, similar to the registration of
easements under the Land Act 1994.
Section 373I sets out the requirements of a document creating a profit
a prendre.
Section 373J defines the particulars of a profit a prendre to be
recorded in the appropriate registers.
Section 373K provides for the registration of a profit a prendre even if
the lease benefited and the lease or freehold land burdened are in
common ownership.
Sections 373L and 373M set out the circumstances concerning
extinguishment of profits a prendre when common ownership of
benefited and burdened leases occurs.
Section 373N defines the requirements for amending a profit a
prendre.
Section 373O provides for the release or removal of a profit a prendre.
Section 373P defines the effect on a profit a prendre of both an
absolute surrender of a lease and a surrender that is not absolute.
Section 373Q provides that a profit a prendre over a lease may be sold,
mortgaged, made the subject of a gift or pass to a beneficiary by will
or intestacy.
Clause 43 inserts new section 393A to make it clear who may give
notice under the Land Act, if the Act does not specify who is to give such
notice. This supports the amendments in clauses 21, 23 and 24.
Clause 44 amends section 443 to clarify that the fee for the issue of a
deed of grant is prescribed under the Land Act 1994, not the Land Title Act
1994.
10
Natural Resources and Other Legislation Amendment
Bill (No. 2) 2003
Clause 45 amends section 481 to provide for partial cancellation or
partial surrender of an occupation licence.
Clause 46 amends schedule 2 (Original decisions) to bring the
subsection numbers for sections 160 and 168 into line with changes made
to the sections in clauses 21 and 23.
Clause 47 amends schedule 6 (Dictionary) to include a "local
government owned corporation" in the definition of a "statutory body".
Due to the creation of a "local government owned corporation" under the
Local Government Act 1993, the current definition of a statutory body
under schedule 6 of the Land Act 1994 limits which bodies may be
appointed as a trustee of trust land (trustees are appointed under section 44
of the Land Act). To remove this limitation it is proposed to amend the
definition of "statutory body" in schedule 6 to include a "local government
owned corporation".
PART 5--AMENDMENT OF LAND TITLE ACT 1994
Clause 48 names the Act to be amended.
Clause 49 inserts new section 97EA to allow the registration of profits a
prendre that exist over two different tenures of land, similar to the
registration of easements under the Land Title Act 1994.
Clause 50 amends section 97G to include leases of non-freehold land in
the classes of land to be recorded in the freehold land register when
registering an instrument of profit a prendre.
Clause 51 inserts new section 97M to define the effect on a profit a
prendre of both an absolute surrender of a lot and a surrender of lot that is
not absolute.
11
Natural Resources and Other Legislation Amendment
Bill (No. 2) 2003
PART 6--AMENDMENT OF VALUATION OF LAND ACT
1944
Clause 52 names the Act to be amended.
Clauses 53 and 54 amend sections 14 and 28 to allow any restrictions to
the value or enhancement to the value of a State lease from the existence of
a native title determination or an indigenous land use agreement (ILUA)
under the Commonwealth Native Title Act 1993 to be taken into account in
the valuation process and to allow a valuation to be altered due to a change
resulting from a native title determination or conditions of an ILUA.
PART 7--MINOR AMENDMENTS
Clause 55 provides that Part 7 of the Bill amends the Acts mentioned in
the schedule.
© State of Queensland 2003