Consultation Sessions Feedback

Transcription

1 Consultation Sessions Feedback The Department of Lands has been gathering feedback from attendees at the various consultation sessions held regarding the 2015 Pastoral Lease renewal process. The information below addresses comments that have been raised at these sessions. Q: If the Land Act is repealed, don t all existing leases transfer over to the new Act? A: The current leases were granted under the now repealed Land Act This Act has now been replaced by the Land Administration Act 1997 (LAA). Where the terms of the current lease are inconsistent with the LAA, the terms of the LAA will prevail. Q: What type of insurance do I need? A: Clause 9.2 of the 2015 Lease requires lessees to have public liability insurance. Since the release of the draft 2015 Lease, concern has been raised with the wording of this clause. The Department of Lands will work with stakeholders, including the insurance industry, to review the feedback received, and if appropriate, amend this clause. Q: Why is rent paid in advance? A: The terms and conditions for rent payment remain unchanged from the existing lease. The existing lease document stipulates that rent is payable in advance on 1 March and 1 September each year, as prescribed by the Land Act Invoices in respect of these payments are sent out by the Department of Lands on 1 January and 1 July each year, 60 days in advance of the due date. The Department of Lands will continue to issue invoices on 1 January and 1 July each year for payment of rent due on 1 March and 1 September. The invoice to be issued on 1 January 2015 will include rent for the period 1 March 2015 to 30 June 2015 and the period between 1 July 2015 and 31 August The rent for the period between 1 July 2015 and 31 August 2015 will be kept in a trust account until the pastoral lease is renewed on 1 July Q: Is there any potential for freehold in the future? A: Not in the immediate future. The Department is looking at ways to make it easier to do other alternate activities on alternative tenure. Q: What about having a perpetual lease? A: A perpetual lease would constrain the lease to pastoral activity only. It would be viewed as a future act and may trigger Native Title issues.

2 Q: With regard to Clause 7.1 Contamination pollution and environmental harm what right of appeal does the lessee have against this clause? What is the process if it has occurred? A: The process and right of appeal is set out in the Land Administration Act 1997 and is the same process under both lease options. Q: With regard to Clause 7.2 Compliance with Law this definition is too broad and wide. Who are these government agencies? A: The reference to any State Agency will be revisited by the Department to provide greater clarity around this clause. Q: What if the property is contaminated by a third party, other than the lessee would the lessee still be at risk of losing their lease? A: Under the draft 2015 Lease, the lessee is only responsible for contamination caused by either the lessee, an agent of the lessee or someone that the lessee had invited onto the property. Q: Will the rents stay the same? A: Pastoral rents are reviewed every 5 years. A review is currently underway and this will set rent rates for 5 years from 1 July The next rent review will occur on 1 July Q: Will the changes incorporated into the draft 2015 Lease option give the State the right to muster cattle as they see fit, and charge lessees for it? What if the proceeds don t cover muster costs? Is there a sunset clause to this right? Can the State repeatedly muster at the cost of the lessee? A: This clause is specifically related to unallocated Crown land (UCL), in the event of forfeiture or termination. The Minister for Lands and the Department of Lands would be given the power to deal with abandoned stock. The State would muster any abandoned stock, sell the stock and allocate the proceeds to the owner of the cattle minus the muster costs. Q: With regard to Clause 4.0, 4.1 of the draft 2015 Lease Other payments by lessee this definition is too wide. A: The words within the draft lease have been changed, however pastoralists are still required to comply with the Land Administration Act 1997 (LAA) and the penalties for noncompliance would remain the same. All information related to this process is contained within the LAA, including any appeals processes. Q: Will there be a right of renewal for the first lease option when my lease expires after 2015? A: The future renewals process will depend on the Minister of the day.

3 Q: Why does the new lease have to be for the same term as the existing lease? A: All leases that are being renewed will be renewed under the Land Administration Act Under this Act, the term of the new lease from 1 July 2015 may not be greater than the term of the current lease, up to a maximum of 50 years. The Department of Lands Rangelands Reform program is investigating removing this restriction in order to allow the Minister to renew a lease for up to 50 years. However, this would still likely trigger a future act process under the Native Title Act Q: Will either lease renewal option trigger the Future Act provisions under the Native Title Act 1993? A: The 2015 Lease has been developed with a view specifically not to trigger Future Act provisions under the Native Title Act However, there are some uncertainties around renewal of the lease on existing terms, which could in due course turn out to have native title implications. In either case, there are uncertainties around possible future changes to native title legislations. Q: Did every lessee receive a letter of compliance in January 2014? A: Yes. If you didn t please contact the Department of Lands and one will be resent. Q: Is it possible for a lessee to receive a letter of non-compliance at the time of renewal, even if they are currently compliant? A: Yes. If a lessee stops paying their rent, or fails to provide an annual return, they may become non-compliant. There is also a chance that some leases may incur a PLB Board directive pre 1 July However, if this happens the lessee will be notified as soon as the directive is issued. Lessees are advised to continue to pay their rent or contact the Department to arrange a payment plan if they are in arrears. Q: Will I need a new signed sublease? A: Yes Q: When should a sublease be registered at Landgate? A: If you have a sublease that isn t already registered, it may be advisable to wait until post 1 July 2015 as any sublease registered against the lease will expire with the lease. Q: Will the lease option chosen influence the value of the property according to banks or the Valuer General? A: The banks have yet to provide a response. The Valuer General is advising on new rates. It is expected that the valuations will be lower and rents may be reduced. However, this isn t a reflection on the lease options, but due to general market conditions.

4 Q: Have the banks indicated a preference towards one of the lease options? A: No. The Department is providing lessees with two viable lease options. Q: With regards to exclusion areas, who is responsible for any infrastructure left on the property? A: If there is nothing noted in the negotiated exclusion agreement, the acquiring agency will be responsible for any infrastructure left on the excluded area. Lessees will be compensated for any infrastructure that can t be removed. Lessees are encouraged to remove items themselves if possible. Q: Will stock routes be addressed in the lease renewal options? A: No. The Department of Lands is currently focusing on the lease renewal process. The issue of stock routes will be looked into at a later date. Q: What percentage of a pastoral lease can be owned by foreign investors? A: Foreign investors can own up to 50% of a pastoral lease; any amount greater than that has to be approved by the Minister for Lands and Cabinet. Q: How will third parties access excluded areas that are in the middle of a lease? Do pastoralists need to negotiate with the third party or will this be done by the Department of Lands? A: Any agreements need to be negotiated and agreed upon between the third party, the pastoralist and the Minister for Lands on a case by case basis. Any new tenure will require legal access to the land. Q: Will mining companies still have the right of access on to pastoral leases after 1 July 2015? A: Yes. The Mining Act 1978 will still prevail. Q: Is anything going to be done to make pastoral leases more productive? A: This will be looked into at a later date once all pastoral leases have been renewed. The State Government is looking into a series of trials. However, nothing will be done without some level of consultation with pastoralists. Q: Do pastoralists need to maintain sheep infrastructure if the pastoral lease is no longer shearing sheep? Will PLB directives be issued about this now or in the future? A: Pastoralists still need to maintain infrastructure to the satisfaction of the Pastoral Lands Board. However, the focus is more about improving and maintaining range condition rather than the specifics of each building.

5 Q: Property has actually been destocked for several years and PLB are aware of this. Lessee has a tourism business under a permit that makes more that the pastoral activities. Is this OK? A: Yes, provided activities are pastoral related and meet permit conditions. Q: Does the insurance clause in the draft 2015 Lease consider insurance of the lease itself an asset? There are two parts to insurance: liability insurance and insurance for the asset. For example, cyclones coming through on a regular basis which affect the running of the business may mean that an insurance company will no longer provide insurance or that premiums will increase. A: The draft 2015 Lease only requires lessees to take out public liability insurance. Taking out additional insurance for the assets of the lease is a business decision to be made by the lessee. Q: What is the minimum amount for public liability? A: At the moment the minimum amount is $10 million. The Department of Lands is currently discussing the insurance clauses contained within the draft 2015 Lease with the Insurance Council of Australia. Q: Will the number of stock that can be run under a current sublease be looked into again? A: No. The Department of Lands won t be looking into this issue in the foreseeable future. Previous referrals should suffice. Q: What bank fees will be payable on mortgages? A: Any bank fees need to be negotiated between the lessee and their bank. Q: Is it possible to pre-lodge new lease documents with Landgate prior to 1 July 2015? A: No Q: Is stamp duty payable under either lease renewal option? A: No

6 Q: If an exclusion area hasn t been finalised by 30 June 2015, will this affect the renewal of the pastoral lease? For example if a lessee has an exclusion area and the acquiring agency has indicated they no longer want to manage the excluded area. A: The Department of Lands doesn t want to create areas of unallocated Crown land (UCL) that won t be managed. If an agreement can t be reached, it is likely that the area will remain in the pastoral lease. It won t affect the renewal of the lease. Q: Has the Department of Lands contacted permit holders who operate outside the terms of their permits? A: Yes. All permit holders have been contacted. If you haven t, please contact the Department as soon as possible. Q: With regard to Clause 10.2 Reservations is a Shire part of the definition of any Government Agency? A: Yes. However, it is likely that the wording will be revised. Q: Will an audit be undertaken post 1 July 2015 to identify existing contamination? A: No, it is unlikely that the Department of Lands will conduct an audit. The Department will need to determine the cause of contamination and then prove that the lessee was responsible. Q: With regard to Clause 9.1 Indemnities and Release does this include compliance with the Contaminated Sites Act 2003? A: Yes. Lessees must comply with the law of the day. Q: Do permits still need to be renewed after 1 July 2015? A: Yes. Q: If I choose Option 1 Renewal of Existing Lease - is there any scope to change to Option Lease? A: Only the Minister for Lands can approve any changes to executed leases. Q: Does either lease option support carbon trading? A: No, not at this stage. This is something that may need to be supported by Rangelands Reform. Q: How will areas with freehold land associated with the pastoral lease be represented in the future? Will they roll over with the lease?

7 A: If land is currently freehold, there is no renewal requirement. In cases where pastoralists have tenure that is linked to their pastoral lease such as a grazing lease, the relevant lease will contain its own renewal clauses. The tenure won t change and won t be absorbed into the lease. Q: Will there be special reservations within the new lease for the grazing of feral goats? A: Both lease options will have the continued requirements to manage feral animal populations. Q: Some of the excluded areas have a requirement to be fenced. Will it null and void the exclusion process if the acquiring agency doesn t fence the excluded land area? If the fencing doesn t happen, is this considered a breach of contract and the land remains within the pastoral estate? A: The exclusion of the land officially occurs on 1 July 2015 the same time as the renewal of the pastoral leases. An exclusion agreement was reached between the lessee at the time and the acquiring agency. Some of these agreements included a requirement for the fencing to be erected. Lessees will need to refer to the agreement specific to the area of exclusion. A copy of this agreement can be obtained from the Department of Lands. The lack of fencing won t prevent the exclusion from occurring. Q: The definition of stock in Option 2 the draft 2015 Lease isn t clear. It includes authorised and prohibited stock. What do these categories include? A: The definition of authorised stock contained within the draft 2015 Lease is taken from the Land Administration Regulations 1998, which prescribes as authorised stock sheep, cattle, horses, goats and stock kept for domestic or household use. Non-authorised or prohibited stock must be managed as per lease conditions and relevant legislation such as the ARRPA Act. Q: Are there existing clauses within the LAA for insurance, or is this all new? A: The insurance clauses are new. Q: The 1997 letter by Minister Shave refers to the maintenance of infrastructure. What constitutes authorised infrastructure? What has to be maintained, and what is considered redundant? A: If you have a PLB directive related to infrastructure, please contact the Department of Lands for further discussion.

8 Q: Does the revised draft 2015 Lease still allow for a lease to be taken if a lessee becomes bankrupt? A: No. This clause has been removed and the draft 2015 Lease has been amended from its original version. Q: Who determines the amount of compensation? A: The Valuer General is currently assessing compensation for lawful improvements for all 95 of the 2015 exclusions. Q: When can lessees expect a response from the Valuer General? A: The process may take longer for some lessees than others. The Valuer General is currently waiting for around 20 responses from lessees. If you are affected by the exclusions process and have yet to respond, please do so as soon as possible. Compensation will be payable post 1 July 2015, when the land is excluded from the pastoral lease. Q: Are monitoring requirements included in the lease options? A: No. Rangeland Condition Monitoring (RCM) isn t included in the lease options. Q: With regard to PLB directives what cover is there for the lessee in response to external events? For example, in the case of live export bans. What considerations are there for affected properties? If you can t move stock, some degradation is bound to occur. It has an impact on the lease, but is beyond the control of the lessee. A: It is possible for damage to occur at a district level, from fires or natural disasters. Other external circumstances can have a massive effect to the whole pastoral industry. However, if an issue is at lease- level, the Department will look into what is going on specifically at lease-level. If the issue is landscape-wide, or industry-wide like a natural disaster or export ban, the Department and PLB will consider your circumstances. Q: In the future will all pastoral leases owned by the former Department of Environment and Conservation (DEC) be nature reserves? What happens tenurewise? Will management changes be expected? A: There are around 40 ex-pastoral leases that were purchased by DEC and then surrendered back to the State. They are currently unallocated Crown land (UCL), and the tenure will revert to National Park, but this process will take some time to complete. There are no compliance requirements for this land as it is no longer pastoral leases, but UCL.

9 Q: What amount of land will fall away from the pastoral estate? What proportion will it be reduced by? Who will have the management responsibility for this land? A: In most cases, it will be the Department of Parks and Wildlife. However, there are some other acquiring agencies that will have management responsibilities. Q: Does the Department have a long-term view on the future of stock routes? A: The Department is currently reviewing their position on stock routes in consultation with the PLB.