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Print friendly versionLast updated: 24 October 2008

2.5 The Western Division of NSW

1 Overview

Key to terms used in this Fact Sheet

Act means the Western Lands Act 1901

Advisory Council means the Western Lands Advisory Council

Commissioner means the Western Lands Commissioner

DNR means the NSW Department of Natural Resources (the part managing the Western Division is now part of the NSW Department of Lands)

Environment Minister means the NSW Minister for Climate Change and the Environment

Minister means the Minister for Lands.

Land is managed differently in the Western Division because, unlike the rest of NSW, most land is held under lease from the Crown (under 'Western lands leases') with only a small area of land being held as freehold.

In addition to this, many State planning and development laws do not apply in the Western Division because most areas outside of the major towns are not incorporated into Local Government Areas.

This Fact Sheet explains the legal framework for managing land in the Western Division of NSW (also called 'Western Lands'). It covers the main legislation regulating the Western Division, the Western Lands Act 1901.1 The Act regulates the manner in which land in the Western Division can be used, how roads and rights of way are created, how leases are issued. The Act also aims to ensure that Western Division land is used in accordance with the principles of ecologically sustainable development.2

For information about natural resource management, clearing of native vegetation, and water law, see the other Fact Sheets on Natural Resources in topic 5.

1.1 Useful web links

The NSW Department of Lands website contains useful information on Western Division land, including a range of statutory forms for the Western Division (eg an application to alter of conditions of lease, application to purchase of land held under lease, etc) which can be accessed online:

The NSW Department of Natural Resources ( DNR ) which formerly managed the Western Division (now transferred to the Department of Lands) contains an extensive list of Fact Sheets on the Western Division.

Where is the Western Division?

The Western Division makes up 42% of the area of NSW.3 It covers approximately 32.5 million hectares.

The northern boundary of the Western Division begins at the Queensland border at Mungindi and runs south to Balranald near the Victorian border, following the Barwon and Murrumbidgee Rivers along the way.

2 Who is responsible for regulating land in the Western Division?

2.1 Western Lands Commissioner

The Western Lands Act establishes the position of Western Lands Commissioner (Commissioner).4 The Commissioner is responsible for administering the Act, subject to the control and direction of the Minister for Lands.

2.2  Department of Lands

The Western Division used to be managed by the NSW Department of Natural Resources (DNR). However in April 2007, responsibility for managing the Western Division was transferred from DNR to the NSW Department of Lands. The Western Division now forms the fifth region (Western Region) of the Crown Lands Department Division of the Department of Lands. The purpose of the transfer was so that all Crown land in NSW would be managed by the one department.

Click here to go to the Department of Lands website on the Western Division.

2.3 Western Lands Advisory Council

The Western Lands Act 1901 establishes the Western Lands Advisory Council.5The Advisory Council comprises 14 members representing groups that have an interest in the Western Division.

The Advisory Council advises the Minister on matters affecting the administration of land in the Western Division and consults with people and bodies having an interest in its administration.6

2.4 Local Land Boards

The Advisory Council can establish administrative districts within the Division and can appoint Local Land Boards (3 persons) for each district.7

The Local Land Boards have powers to hear and determine matters arising from the Western Lands Act 1901 in an open court forum, such as claims in relation to fencing,8 disputes in relation to easements for public access, road reservations, and determinations of rent for leasehold land.9

2.4.1 Appeals against Local Land Board decisions

Any party to proceedings before a local land board can appeal (on the merits) to the Land and Environment Court against the decision of the Board.10 A decision includes an adjudication, determination, award, report or recommendation. Appeals must be made within 28 days, or within such further time as the Court allows.11

After taking evidence, a Local Land Board can choose to refer a matter directly to the Land and Environment Court.12 Similarly, the Minister can refer or appeal (merits) a decision of the Board to the Land and Environment Court within 28 days (or longer, if permitted by the Court).13

2.5 Do State planning laws apply in the Western Division?

Yes, but only in those areas (larger towns) which are incorporated as local government areas under the Local Government Act 1993.14 These towns include the areas covered by Balranald Shire Council, Bourke Shire Council, Brewarrina Shire Council, Broken Hill City Council, and Cobar Shire Council.15

State planning and development laws under the Environmental Planning and Assessment Act 1979 apply in these areas (eg zoning and development applications provisions),16 as do the provisions governing local councils under the Local Government Act 1993.

2.5.1 Unincorporated areas

Land outside these local government areas (unincorporated areas) is regulated under the Western Lands Act 1901. About 29% of the Western Division is unincorporated, which means it has no local government. This area includes the villages of Silverton, Tibooburra and Milparinka.

Unincorporated areas are managed by the NSW Department of Lands, Western Region (Phone: 6883 3000, PO Box 1840, Dubbo 2830), although the Planning Minister still retains power to regulate development in these areas (eg under a State Environmental Planning Policy or under Part 3A).17

In the unincorporated areas of the Western Division, applications for the construction of buildings on leasehold land must be made to the Western Lands Commissioner, rather than a development application being made to a local council.18

2.6  Do Federal environment laws apply in the Western Division?

Yes, the provisions of the Environment Protection and Biodiversity Conservation Act 1999 apply to all land in the Western Division. See Fact Sheet 3.1 for more information on the EPBC Act.

3  Western Land leases

The Minister is responsible for granting leases in the Western Division (Western Lands Leases) under the Western Lands Act 1901.19

About 95% of the Western Division is Crown land held under lease. The Division contains approximately:

  • 4,250 grazing leases
  • 520 agricultural leases
  • 2,350 residential leases, and
  • 240 business leases.

All activities on land in the Western Division are governed almost exclusively by the terms of the lease granted to the occupier.

3.1  Activities which are controlled by leases

Each lease sets out the types of agriculture which is allowed on that parcel of land (eg grazing, agriculture, mixed farming),20 the type of cultivation which is permitted, the permitted stock levels, and requirements concerning the removal of vegetation or timber.

Leases can only be used for their designated purpose. If the lessee wishes to use the land for additional or different purposes they must make an application to change the lease purpose.

All leases are subject to certain statutory conditions set out in the Western Lands Act 1901 such as those regarding fencing21 and the taking of timber.22

The Commissioner has broad powers to direct how the land must be managed. For example, the Commissioner can direct a lessee to take specific measures to protect land,23 such as:

  • to take stock off certain parts of the land
  • to prevent overstocking
  • to prevent any part of the land being used for specified types of agriculture
  • to preserve trees and scrubs
  • to take measures to prevent soil erosion
  • to erect gates on public roads.

Buildings must not be constructed on land held under lease without approval from the Commissioner.24

Leases which are not used in good faith for the purpose for which they are granted, or where the conditions are breached, are liable to forfeiture.25

The Crown retains the ownership of minerals, sand, gravel, timber and commercial fisheries, and can authorise other people to use these resources.

3.2  Term of leases

Leases are granted either in perpetuity of for a term not exceeding 40 years.26

It is a condition of a lease extended in perpetuity that the leaseholder improve and maintain the water supply, and destroy noxious animals such as rabbits and wild dogs (s 18E(5).

The term of a lease can be extended by application to the Commissioner.27 A leaseholder can apply to have their lease extended in perpetuity.28

3.3  Leasehold land can be purchased

Amendments to the Western Lands Act 1901 in 2002 allow the holders of certain leases to purchase their land.29

The holder of a lease granted before 23 December 1996 for residential, business, motel, community, agricultural or mixed farming purposes can apply to the Minister (in practice, the Commissioner)30 to purchase the whole or part of their land.31 The Minister must not allow leasehold land to be sold unless satisfied that the land will be used in an ecologically sustainable manner.32

Grazing or pastoral leases cannot be converted to freehold.33

The purpose of allowing leasehold land to be converted to freehold is to encourage the social and economic development of the Western Division.

4  Cultivation permits

Because land in the Western Division is particularly fragile, the Western Lands Act establishes a special regime to regulate cultivation. The purpose of the provision is to prevent damage to land, such as soil erosion, caused by cropping and ploughing.

A person must not cultivate land without consent to cultivate (cultivation permit) from the Commissioner.34 'Cultivate' includes preparing land for cultivation, and cultivating land which has previously been cultivated.35 It does not include clearing native vegetation or protected land under the Native Vegetation Conservation Act 1997.36

The requirement to obtain a cultivation permit applies to land held under a grazing lease and certain other land tenures.37 The Regulation lists a number of exceptions where a permit is not required,38 such as for rabbit ripping or the control of noxious plants, although written notification at least 2 weeks before and a written authorisation is still required.39 Despite the exemptions, the Commissioner can still decide that a permit is necessary.40

The Commissioner has broad power to suspend or revoke a cultivation permit, including where a permit has been breached.41 A person can appeal to the Land and Environment Court against a refusal to grant a permit, a condition of a permit, or a suspension or revocation of a permit (see case study).42 A lease can be forfeited if any part of the land is cultivated without a cultivation permit or in breach of the conditions of a permit.43

Case study: Court refuses to reinstate cultivation permit at Narran Lakes

Keech v Western Lands Commissioner (2003) 132 LGERA 23

Lessees of a Western Lands Lease held a Cultivation Permit which allowed then to cultivate part of their leasehold land after a flood event. The lease and Cultivation Permit covered parts of the usually dry lake bed of Narran Lake, near Walgett. Under the Permit, the leaseholders grew wheat, barley, sorghum and other crops on the lakebed.

On 14 June 2002, the Western Lands Commissioner revoked the Cultivation Permit because the lessees had breached it by cultivating more than 1,000 hectares in excess of what was allowed under the Permit. Some people (Keech) were in process of acquiring the lease and discovered that the Permit had been revoked. They appealed to the Land and Environment Court against the revocation because they were concerned that the loss of the Permit would reduce the value of the lease.

The Court refused to reinstate the Cultivation Permit. The Court found that the breach caused environmental harm, such a reduction in flora and fauna regeneration following future floods, and soil cracking. This harm outweighed the economic hardship caused to the new Permit holders, and the Court dismissed the appeal. In making its decision, the Court had regard to one of the objects of the Western Lands Act 1901, namely, to ensure that land in the Western Division is used in accordance with the principles of ecologically sustainable development.

5  Other development arrangements

5.1  Licences to use leasehold land

The Act allows some flexibility in land use, even though leaseholders are restricted in the manner they can use their land by the conditions of their lease. The Act allows the Minister to grant a licence for any purpose over leasehold land, so long as the lessee gives their consent (except for gravel and sand extraction).44

For example, a licence could be granted to allow infrastructure such as telecommunications or pipelines to be built, or to enable the land to be used for one-off activities such as rallies or gymkhanas.

5.1.1  Gravel and sand extraction

The Minister can grant a licence for the removal of gravel, sand or any other material that is not a mineral under the Mining Act 1992.45 The consent of the lessee is not required for these licences.46

About 132 licences have been issued for the extraction of soil, rock, sand and gravel in the Western Division.

5.2  Productivity schemes

The Minister can enter into an agreement (betterment scheme) with the owner or lessee of land in the Western Division for the purpose of carrying out a scheme for the productivity, conservation, environmental protection or monitoring of land in the Western Division.47

The benefit of such an arrangement is that the Minister may pay for some of the costs involved in implementing the scheme.48

5.3  Development districts

The Minister for Lands can declare any land within the Western Division to be a development district.49 Where a development district has been declared, the land can be leased (special purpose lease) for up to 100 years50 for solar or wind power projects, or another special purpose allowed by proclamation.51

 

  1. And the Western Lands Regulation 2004. Parts of the Crown Lands Act 1989 also apply to leases in the Western Division.
  2. Western Lands Act 1901, s 2 (Objects).
  3. The area of land covered by the Western Division is defined in s 3(1)(Definitions) of the Western Lands Act 1901 as the area specified in the Crown Lands Consolidation Act 1913 immediately before its repeal.
  4. Western Lands Act 1901, s 4.
  5. Western Lands Act 1901, s 8B.
  6. Western Lands Act 1901, s 8C.
  7. Western Lands Act 1901, s 9.
  8. Western Lands Act 1901, s 18B; and Western Lands Regulation, cl 25.
  9. Western Lands Act 1901, s 9(5).
  10. Western Lands Act 1901, s 9(6); Crown Lands Act 1989, s 26(1) and s 29.
  11. Crown Lands Act 1989, s 26(2).
  12. Western Lands Act 1901, s 9(6)(a); and Crown Lands Act, s 27.
  13. Western Lands Act 1901, s 9(6)(a); and Crown Lands Act, s 28.
  14. Section 5 of the Local Government Act 1993 provides that the Act applies to those parts of the State that are constituted as areas for the purposes of this Act. An 'area' is defined in the Dictionary as an areas constituted under Chapter 9, Part 1, Division 1 of the Act: see s 204 and s 206.
  15. Note: some of these local government areas or parts may not be subject to the Local Government Act 1993 or the Environmental Planning and Assessment Act 1979 because of special statutory exceptions or other exceptions under regulations.
  16. Environment Planning and Assessment Act 1979, s 54 only allows local councils to make local environment plans (zoning plans) and development control plans (s 74B) where there is a local government area.
  17. Section 39(5) provides that a State Environment Planning Policy can apply to the whole State or such part of the State as is described in the policy, and Part 3A (Major Infrastructure and other projects (s 75B) of the EPA Act could also be applied in the Western Division.
  18. Western Lands Act 1901, s 18D(1)(vii).
  19. Western Lands Act 1901, s 28A.
  20. Western Lands Act 1901, s 28A.
  21. Western Lands Act 1901, s 18A, 18B, 18C.
  22. Western Lands Act 1901, s 18D(1)(ii), (iii), and s 18DB.
  23. Western Lands Act 1901, s 18D(1).
  24. Western Lands Act 1901, s 18D(1)(vii).
  25. Western Lands Act 1901,s 28BA.
  26. Western Lands Act 1901, s 28A(3).
  27. Western Lands Act 1901, s 28B, and Western Lands Regulation 2004, cl 12(1).
  28. Western Lands Act 1901, s 18E, and Western Lands Regulation 2004, cl 12(1).
  29. See the amendments introduced by the Western Lands Amendment Act 2002, Sch 4[8].
  30. Western Lands Regulation 2004, cl 14(1)(a).
  31. Western Lands Act 1901, s 28BB, and Sch 4.
  32. Western Lands Act 1901, Sch 2 (Part 4), and Sch 4, cl 3(3).
  33. Western Lands Act 1901, s 28BB(1)(a).
  34. Western Lands Act 1901, s 18DA(1) and (3).
  35. Western Lands Act 1901, s 18DA(2)(a).
  36. Western Lands Act 1901, s 18DA(2)(b).
  37. The Western Lands Regulation 2004 sets out other types of land tenure to which the obligation to obtain a cultivation consent applies. These include land held under a permissive occupancy, conditional lease, homestead selection, a reserve, a stock watering place and a licence: clause 27(1).
  38. See Schedule 4 of the Western Lands Regulation 2004.
  39. Western Lands Regulation 2004, cl 28(3) and (4).
  40. Western Lands Regulation 2004, cl 28(6).
  41. Western Lands Act 1901, s 18DA(8A).
  42. Western Lands Act 1901, s 18DA(10).
  43. Western Lands Act 1901, s 18DA(12).
  44. Western Lands Act 1901, s 2A, Sch 2 (s 50A).
  45. Western Lands Act 1901, Sch 2, s 50A.
  46. estern Lands Act 1901, Sch 2, s 50A(2).
  47. Western Lands Act 1901, s 35N.
  48. Western Lands Act 1901, s 35N(2)(c) and 35O.
  49. Western Lands Act 1901, Part 9E, s 35XA - XE; and Crown Lands Act 1989, s 44B(1).
  50. Crown Lands Act 1989, s 44C(3).
  51. Crown Lands Act 1989, s 44B(4) and (5).