Print this factsheet

2.6 The Western Division of NSW

2.6.1  Overview

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, and 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.

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

2.6.2.1 Western Lands Commissioner

The Western Lands Act establishes the position of Western Lands Commissioner.5 The Commissioner is responsible for administering the Act, subject to the control and direction of the Minister for Lands.

2.6.2.2 Department of Lands

The Western Division is managed by the NSW Department of Lands. The Western Division forms the fifth region (Western Region) of the Crown Lands Division of the Department of Lands.

2.6.2.3 Western Lands Advisory Council

The Act also establishes the Western Lands Advisory Council.5 The Advisory Council comprises 15 members representing groups that have an interest in the Western Division including, for example, lessees, local councils, Aboriginal people, the Nature Conservation Council, and catchment management boards.

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

2.6.2.4 Local Land Boards

The Advisory Council can establish administrative districts within the Division.7 The Governor or the Minister can appoint Local Land Boards (3 persons) for each land district.8

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

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 after the decision being appealed against has been made, 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 after the decision has been made (or longer, if permitted by the Court).13

2.6.2.5 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 .

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 Land Property Management Authority Western Region, although the Planning Minister still retains power to regulate development in these areas (eg under a State Environmental Planning Policy or under Part 3A of the Environmental Planning and Assessment Act 1979 )..

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.17

2.6.2.6 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 this Act.

2.6.3 Western Land leases

The Minister is responsible for granting leases in the Western Division (Western Lands Leases) under the Western Lands Act 1901 .18

About 95% of the Western Division is Crown land held under lease, including:

• 4,250 grazing leases
• 520 agricultural leases
• 2,090 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 lessee.

2.6.3.1 Activities which are controlled by leases

Each lease sets out the type of activity which is allowed on that parcel of land (eg grazing, agriculture, mixed farming),19 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 Act such as those regarding fencing20 and the removal of timber and other material from the land.21 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,22 such as:

• taking stock off certain parts of the land
• preventing overstocking
• preventing any part of the land being used for specified types of agriculture
• preserving trees and scrub and vegetative cover
• taking measures to prevent soil erosion
• erecting gates on public roads.

Buildings must not be constructed on land held under lease without approval from the Commissioner.23

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.24

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

2.6.3.2 Term of leases

Leases are granted either in perpetuity or for a term not exceeding 40 years.25

It is a condition of a lease extended in perpetuity that the leaseholder improve and maintain the water supply, and destroy animals such as rabbits, wild dogs and other noxious animals.26 .

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

2.6.3.3 Leasehold land can be purchased

Holders of certain leases may 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.

2.6.4 Cultivation permits

Because land in the Western Division is particularly fragile, the 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 undertaken as part of a planned rabbit control program, or the control of noxious plants on certain areas of land, 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 powers 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

2.6.5 Other development arrangements

2.6.5.1 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 its 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.

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 prior to the grant of these licences.46

The Land and Property Management Authority currently administers approximately 120-130 Extractive Industries Licences in the Western Division of NSW.

2.6.5.2 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 provide assistance towards any works required to be undertaken and pay for some of the costs involved in implementing the scheme.48

2.6.5.3 Development districts

The Minister 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 Western Division comprises that part of the State depicted in Lot 1901, Deposited Plan 1133899, recorded in the office of the Registrar-General ( Western Lands Act 1901 s. 3(1)).
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. Crown Lands Act 1989, ss. 19-20
9. Western Lands Act 1901, s 18B; and Western Lands Regulation, cl 25.
10. Crown Lands Act 1989, s 26(1) and s 29.
11. Crown Lands Act 1989, s 26(2).
12. Crown Lands Act, s 27.
13. 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 area 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. Western Lands Act 1901 , s 18D(1)(f)
18. Western Lands Act 1901, s 28A.
19. Western Lands Act 1901, s 28A.
20. Western Lands Act 1901, s 18A, 18B, 18C.
21. Western Lands Act 1901, s 18D(1)(ii), (iii), and s 18DB.
22. Western Lands Act 1901, s 18D(1).
23. Western Lands Act 1901, s 18D(1)(f).
24. Western Lands Act 1901, s 28BA.
25. Western Lands Act 1901, s 28A(3).
26. Western Lands Act 1901, s 18E(5)
27. Western Lands Act 1901, s 28B, and Western Lands Regulation 2004, cl 12(1).
28. Western Lands Act 1901, s 18E(1), and Western Lands Regulation 2004, cl 12(1).
29. Western Lands Act 1901, s 28BB.
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: cl 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 2, Sch 2 (s 50A).
45. Western Lands Act 1901, Sch 2, s 50A.
46. Western 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).

This site was last updated Thursday 17 May, 2012
EDO NSW
Home | Disclaimer | Privacy | Contact Us | Support Us