crown land practice manual

Crown Land Administration & Registration Practice Manual July 2013

Crown Land Administration and Registration Practice Manual

Published July 2013 Foreword The Crown Land Administration and Registration Practice Manual is a best practice initiative which aims to set in place standards and guidelines for the administration and registration of Crown land in Western Australia. It has been developed in response to requests from our stakeholders for more information on the way Crown land is administered.

Western Australia has around 38% of the nations Crown lands. 93% of the State is Crown land whether unallocated or subject to reservation, dedication or leasing. These statistics illustrate both the opportunities and the challenges facing government land administration in Western Australia.

The manual is intended to promote transparency and good governance in the administration of Crown land and conveyancing and registration of Crown land transactions under the Land Administration Act 1997 and the Transfer of Land Act 1893.

In developing this resource, a considerable level of advice, contribution and verification of current practice and procedure by many staff and our friends in Local Government must be acknowledged. Without their valued and experienced input, an authoritative, user friendly and accurate version would not have been possible. This is a dynamic publication and will continue to evolve and improve to reflect changes in legislation and practice and procedure.

We welcome your feedback for improvements to the manual.

Disclaimer and Copyright The information contained in this manual is distributed by the Department of Lands (DoL) through the DoL website as a guide or information source only. Various factors beyond the control of DoL can affect the quality or accuracy of the information and products. Whilst every effort has been made to ensure accuracy and completeness, no guarantee is given nor responsibility taken by DoL for errors or omissions in the manual. DoL do not accept any liability for any loss or damage incurred as a result of the use of, or reliance upon the information provided in this manual or incorporated into it by reference.

Important: The information in this manual should not be regarded as legal advice. In all matters, users should seek legal advice from an independent legal practitioner.

On-Line Note: The DoL web-server provides links to other Internet sites. These external information sources are outside the control of DoL control and it is the responsibility of Internet users to make their own decisions about the accuracy, reliability, suitability, and correctness of information found.

This manual and its contents are protected by the Copyright Act 1968, and the copyright in this manual belongs to the State of Western Australia. You may download, display, print and reproduce this material in unaltered form only (retaining this notice) for your personal, non-commercial use and use within your organisation. Apart from any use as permitted under the Copyright Act 1968, all other rights are reserved. No part may be downloaded and/or reproduced if it is to be on-sold or licensed and no person who downloads or reproduces any part is to seek any payment for information so obtained. Requests for further authorisation should be addressed to the Executive Director, Strategy and Reform, PO Box 1143, West Perth WA, 6872.


TABLE OF CONTENTS

Chapter 1 Preliminary and general information

Chapter 2 General administration and registration of Crown interests and tenure changes in Western Australia

Chapter 3 Appeals to Governor

Chapter 4 Reserves

Chapter 5 Roads

Chapter 6 Sales, leases, licences etc of Crown land

Chapter 7 Pastoral leases

Chapter 8 Easements

Chapter 9 Compulsory acquisition of interests in land

Chapter 10 Compensation

Chapter 11 General

Chapter 12 Repeals, transitionals, savings and validation

Chapter 13 Contaminated sites on Crown Land

Glossary


CROWN LAND ADMINISTRATION AND REGISTRATION PRACTICE MANUAL

CHAPTER 01 PRELIMINARY AND GENERAL INFORMATION

TABLE OF CONTENTS

1. PRELIMINARY AND GENERAL INFORMATION 1-1

1.1. THE SCHEME 1-1 1.2. THE LEGISLATION AND ITS PURPOSE 1-2 1.3. A SINGLE REGISTRATION SYSTEM FOR BOTH CROWN AND FREEHOLD LAND 1-3 1.4. NATIVE TITLE ISSUES 1-4

2. GENERAL ADMINISTRATION AND REGISTRATION OF CROWN INTERESTS AND TENURE CHANGES IN WESTERN AUSTRALIA 2-1

2.1. INTRODUCTION 2-1 2.2. CROWN LAND IN WESTERN AUSTRALIA POWERS TO LEGISLATE AND TRANSACT 2-2

2.2.1. LANDS ABOVE THE LOW WATER MARK 2-2

2.2.2. SUBMERGED LANDS THE RIGHTS OF THE STATE TO MAKE LAWS IN RESPECT OF THE TERRITORIAL SEA2-3

2.2.3. POWERS TO HOLD AND DEAL IN CROWN LAND 2-5 2.3. CROWN LAND REGISTRATION A TORRENS SYSTEM OF LAND REGISTRATION IN CROWN LAND 2-6

2.3.1. CONSEQUENTIAL AMENDMENTS TO THE TLA 2-7

2.3.2. ADVANTAGES OF TORRENS SYSTEM 2-7

2.3.3. WHAT IS CROWN LAND? 2-8

2.3.4. IDENTIFYING CROWN LAND 2-8

2.3.5. HOW CROWN LAND WAS BROUGHT UNDER THE TORRENS SYSTEM 2-9

2.3.6. CROWN GRANTS 2-9

2.3.7. CROWN LAND RECORDS 2-14

2.3.8. FOUR DIFFERENT TYPES OF TITLES FOR CROWN LAND 2-15


2.3.9. INTERNAL INTEREST PLANS 2-22

2.3.10. APPROVED DOCUMENT FORMS 2-23

2.3.11. REGISTRATION OF PRE-LAA DOCUMENTS FOR CROWN INTERESTS 2-24

2.3.12. REGISTRATION OF NEW CROWN INTERESTS UNDER THE LAA 2-30

2.3.13. REGISTRATION OF CROWN INTERESTS CREATED BY EXTERNAL AGENCIES UNDER STATE LEGISLATION OTHER THAN THE LAA 2-37

2.3.14. VALIDATION OF QUALIFIED CROWN LAND TITLES 2-38

2.3.15. IDENTIFICATION OF CHAIN OF TITLE 2-43 2.4. POWERS OF THE MINISTER FOR LANDS 2-46

2.4.1. GENERAL 2-46

2.4.2. DELEGATION OF MINISTERS POWERS 2-47

2.4.3. CONSTRAINTS ON THE MINISTERS POWERS 2-48

2.4.4. CROWN LAND DISPOSITION 2-49 2.5. CONTINUING INTERESTS 2-53

2.5.1. PRE-LAA 2-53

2.5.2. POST-LAA 2-54 2.6. POSITIVE AND RESTRICTIVE COVENANTS 2-56

2.6.1. GENERAL 2-56

2.6.2. CREATION OF SECTION 15 COVENANTS 2-57

2.6.3. REGISTRATION OF SECTION 15 COVENANTS 2-58 2.7. MEMORIALS 2-60 2.8. WARNINGS OF HAZARDS AND OTHER FACTORS THAT AFFECT THE USE OR ENJOYMENT OF LAND 2-61 2.9. APPROVAL OF THE MINISTER UNDER SECTION 18 OF THE LAA 2-62

2.9.1. GENERAL 2-62

2.9.2. WHAT IS AN INTEREST IN CROWN LAND? 2-63

2.9.3. WHAT CONSTITUTES PRIOR WRITTEN APPROVAL? 2-64

2.9.4. CHECKLIST OF MATTERS THAT SHOULD BE CONSIDERED WHEN A REQUEST IS MADE FOR APPROVAL UNDER THE LAA 2-66

2.10. CAVEATS LODGED OVER CROWN LAND 2-67

2.10.1. GENERAL 2-67

2.10.2. WHAT IS A CAVEAT? 2-68

2.10.3. WHO IS THE REGISTERED PROPRIETOR FOR CAVEATS OVER CROWN LAND? 2-69

2.10.4. NATURE OF A CAVEATORS CLAIM 2-71

2.10.5. INTERESTS IN CROWN LAND CAPABLE OF SUPPORTING A CAVEAT 2-71

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2.10.6. CAVEATS CAN BE LODGED UNDER SECTION 20(2) OF THE LAA 2-72

2.10.7. WHAT CONSTITUTES AN INTEREST FOR THE PURPOSES OF SECTION 20 OF THE LAA? 2-73

2.10.8. ROLE OF DOL IN GRANTING APPROVAL TO EVIDENCE SUPPORTING CAVEATS 2-73

2.10.9. REGISTRATION REQUIREMENTS OF CAVEATS OVER CROWN LAND 2-73

2.10.10. FORMS TO BE USED 2-73

2.10.11. REMOVAL OF CAVEATS 2-74

2.10.12. CAVEATS LODGED BY THE MINISTER FOR LANDS UNDER SECTION 21 OF THE LAA 2-74 2.11. FORFEITURE OF INTERESTS IN CROWN LAND 2-75

2.11.1. GENERAL 2-75

2.11.2. TRANSITIONAL PROVISIONS LICENCES GRANTED UNDER THE LAND ACT 1933 2-76

2.11.3. FORFEITURE PROCESS GIVING OF NOTICE 2-77

2.11.4. APPEAL PROCESS 2-79

2.11.5. CONSEQUENCES OF MAKING A FORFEITURE ORDER 2-79

2.11.6. AFTER FORFEITURE 2-80 2.12. APPLICATION FOR APPROVAL TO COMMENCE DEVELOPMENT ON CROWN LAND (MRS FORM 1) 2-81 2.13. APPLICATION FOR PLANNING APPROVAL UNDER A TOWN PLANNING SCHEME 2-82

3. APPEALS TO GOVERNOR 3-1

3.1. INTRODUCTION 3-1 3.2. APPEAL PROCESS 3-2

3.2.1. WHERE IT IS PROPOSED TO RECOMMEND A DISMISSAL OF THE APPEAL 3-2

3.2.2. WHERE APPEALS ARE UPHELD BY THE GOVERNOR 3-3

3.2.3. EFFECT OF A FORFEITURE ORDER 3-3 3.3. FORFEITURE PROVISIONS UNDER SECTION 35 3-4 3.4. DIFFERENT NOTICE PERIODS FOR APPEALS 3-4

3.4.1. SECTION 35 3-4

3.4.2. SECTION 133 3-4

3.4.3. SECTION 145 3-4

3.4.4. SECTION 190 3-5

3.4.5. SECTION 272 3-5 3.5. CALCULATION OF NOTICE PERIOD FOR APPEALS 3-6

4. RESERVES 4-1

4.1. INTRODUCTION 4-1


4.1.1. WHAT IS A RESERVE? 4-1 4.2. CREATION OF RESERVES 4-2

4.2.1. UNDER THE LAA 4-2

4.2.2. UNDER THE PLANNING AND DEVELOPMENT ACT 2005 4-3

4.2.3. UNDER THE CONSERVATION AND LAND MANAGEMENT ACT 1984 4-4

4.2.4. UNDER OTHER WRITTEN LAW 4-4 4.3. RESERVES 4-6

4.3.1. INTRODUCTION 4-6

4.3.2. AMENDMENT OF RESERVES 4-6

4.3.3. CANCELLATION OR CHANGE OF PURPOSE OF RESERVES 4-6 4.4. MANAGEMENT OF RESERVES 4-8 4.5. MANAGEMENT ORDERS 4-9

4.5.1. WHAT IS A MANAGEMENT ORDER? 4-9

4.5.2. WHO CAN BE A MANAGEMENT BODY? 4-9

4.5.3. WHAT POWERS DOES A MANAGEMENT BODY HAVE TO DEAL WITH LAND? 4-10

4.5.4. PRINCIPLES CONSIDERED BY DOL WHEN ISSUING MANAGEMENT ORDERS UNDER THE LAA 4-11

4.5.5. REVOCATION OF A MANAGEMENT ORDER 4-11 4.6. RESERVE CLASSIFICATIONS 4-12

4.6.1. CLASS A RESERVES 4-12

4.6.2. CLASS B RESERVES 4-14

4.6.3. CLASS C RESERVES 4-14 4.7. TYPES OF RESERVES 4-15

4.7.1. MALL RESERVES 4-15

4.7.2. DEPARTMENT OF ENVIRONMENT AND CONSERVATION (DEC) RESERVES 4-19

SECTION 152 RESERVES 4-21 4.8. MANAGEMENT PLANS 4-26 4.9. RESERVE ACTIONS (DEALINGS/TRANSACTIONS ON RESERVES) 4-28

4.9.1. EASEMENTS OVER CLASS A RESERVES 4-29

4.9.2. TRANSACTIONS OVER RESERVES 4-30

5. ROADS 5-1

5.1. INTRODUCTION 5-1 5.2. ROADS 5-2 5.3. PRIVATE ROADS 5-4

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5.4. PEDESTRIAN ACCESSWAYS AND RIGHTS OF WAY 5-5 5.5. CROWN RIGHTS OF WAY 5-6 5.6. PROTECTED ROADS 5-7

5.6.1. DEFINITION AND BACKGROUND OF PROTECTED ROADS 5-7

5.6.2. EXCISIONS FROM STATE FORESTS 5-8 5.7. DEDICATION OF ROADS 5-9

5.7.1. GENERAL 5-9

5.7.2. EXCEPTIONS TO UNALLOCATED CROWN LAND REQUIREMENT 5-10

5.7.3. DIFFERENT WAYS TO DEDICATE A ROAD 5-11 5.8. CLOSURE OF PRIVATE ROADS 5-19

5.8.1. CLOSURE OF A PRIVATE ROAD AT THE REQUEST OF LOCAL GOVERNMENT 5-20

5.8.2. CLOSURE OF PAWS AND ROWS VESTED UNDER SECTION 152 OF THE PLANNING AND DEVELOPMENT ACT 2005 5-24

5.9. CLOSURE OF PUBLIC ROADS 5-32

5.9.1. PRINCIPLES TO BE CONSIDERED BY DOL IN ROAD CLOSURES 5-32

5.9.2. POLICY PROCEDURES TO BE CONSIDERED BY DOL IN ROAD CLOSURES AND DISPOSALS 5-33 5.10. MALL RESERVES 5-36

5.10.1. BACKGROUND INFORMATION AND PRINCIPLES FOR CREATION OF A MALL RESERVE 5-36

5.10.2. CANCELLATION OF A MALL RESERVE 5-36 5.11. PUBLIC ACCESS ROUTES 5-37

5.11.1. BACKGROUND INFORMATION 5-37

5.11.2. WHAT IS A PUBLIC ACCESS ROUTE (PAR)? 5-37

5.11.3. HOW TO CREATE A PUBLIC ACCESS ROUTE? 5-38

5.11.4. ALTERNATIVE TO PARS PUBLIC ACCESS EASEMENTS 5-41 5.12. REGISTRATION DOCUMENTS AND PROCESS 5-42

6. SALES, LEASES, LICENCES, ETC. OF CROWN LAND 6-1

6.1. INTRODUCTION 6-1 6.2. WHO CAN SELL AND LEASE CROWN LAND 6-2

6.2.1. GENERAL 6-2

6.2.2. WHAT IS THE LAND DEVELOPMENT FUNCTION? 6-2

6.2.3. LANDCORPS ROLE 6-3

6.2.4. DOLS CONTINUING ROLE IN THE CROWN ESTATE 6-3

6.2.5. LEASES OVER CROWN LAND 6-3


6.2.6. LAND ASSEMBLY REQUIREMENTS 6-3

6.2.7. ADMINISTRATIVE SUBDIVISIONS OF CROWN LAND 6-4 6.3. SALE OF FEE SIMPLE INTERESTS IN CROWN LAND 6-5

6.3.1. GENERAL 6-5

6.3.2. MINISTERS DISCRETIONARY POWERS 6-5

6.3.3. METHODS FOR THE SALE OF CROWN LAND 6-6

6.3.4. CONVEYANCING PROCESS AND SETTLEMENT PROCEDURE 6-11 6.4. SALE AND AMALGAMATION 6-12

6.4.1. GENERAL 6-12

6.4.2. EXERCISE OF THIS POWER 6-12

6.4.3. EFFECT OF ENCUMBRANCES AND OTHER INTERESTS 6-12 6.5. LEASE OF CROWN LAND 6-13

6.5.1. BACKGROUND CROWN LEASES GRANTED UNDER THE LAND ACT 1933 6-13

6.5.2. CROWN LEASES ISSUED PRE-LAA 6-14

6.5.3. CROWN LEASES ISSUED POST-LAA 6-16

6.5.4. EFFECT OF MINING TENEMENTS OVERLAPPING LEASES AND EASEMENTS 6-16 6.6. LEASES ISSUED OVER CROWN LAND 6-17

6.6.1. GENERAL 6-17

6.6.2. CONDITIONAL PURCHASE LEASES 6-18

6.6.3. GENERAL LEASES 6-20

6.6.4. CROWN LEASES OF UNMANAGED RESERVES 6-20

6.6.5. PASTORAL LEASES 6-21

6.6.6. LEASING OF CROWN LAND FOR TELECOMMUNICATIONS PURPOSES 6-21

6.6.7. LEASING FOR AQUACULTURE 6-22

6.6.8. LEASES OVER TENURES 6-23

6.6.9. STAMP DUTY IMPLICATIONS FOR LEASES OF CROWN LAND 6-24

6.6.10. LEASING UNDER RATIFIED STATE AGREEMENT ACTS 6-24 6.7. CONVERSION OF STATE/CROWN LEASES INTO THE FREEHOLD 6-25

6.7.1. GENERAL 6-25

6.7.2. CONVEYANCING PROCESS 6-25 6.8. LICENCES AND PROFITS PRENDRE GRANTED OVER CROWN LAND 6-26

6.8.1. LICENCES OVER CROWN LAND 6-26

6.8.2. PROFITS PRENDRE 6-26

vii Crown Land Administration & Registration Practice Manual July 2013

6.9. EFFECT OF IMPROVEMENTS ON TERMINATION OF LEASE OR LICENCE 6-27

6.9.1. GENERAL 6-27 6.10. GENERAL DISPOSITIONS PROVISIONS 6-28

6.10.1. INTRODUCTION 6-28

6.10.2. REVESTMENTS 6-28

6.10.3. GRANTS TO ABORIGINAL PERSONS OF THE LAA 6-28

6.10.4. SUPERLOTS 6-29

6.10.5. DISPOSITIONS TO THE COMMONWEALTH, STATE GOVERNMENT AGENCIES, OR LOCAL GOVERNMENT 6-29

6.10.6. OPTIONS 6-29

7. PASTORAL LEASES 7-1

7.1. INTRODUCTION 7-1 7.2. GRANTING A PASTORAL LEASE 7-2

7.2.1. GRANTING OF A PASTORAL LEASE OVER UNALLOCATED CROWN LAND NOT PREVIOUSLY HELD AS A PASTORAL LEASE WHERE NO INFRASTRUCTURE EXISTS 7-3

7.2.2. GRANTING OF A PASTORAL LEASE OVER UCL PREVIOUSLY HELD AS A PASTORAL LEASE WHERE SOME INFRASTRUCTURE MAY EXIST 7-4

7.2.3. PUBLIC OFFERS OF PASTORAL LEASES 7-4 7.3. CONDITIONS OF A PASTORAL LEASE 7-5

7.3.1. TERM OF A PASTORAL LEASE 7-5

7.3.2. PURPOSE OF A PASTORAL LEASE 7-5

7.3.3. DEVELOPMENT AND MAINTENANCE OF IMPROVEMENTS 7-5

7.3.4. MANAGEMENT OF A PASTORAL LEASE 7-5

7.3.5. STOCKING OF A PASTORAL LEASE 7-6

7.3.6. SOIL CONSERVATION 7-7

7.3.7. DECLARED PLANTS AND ANIMALS 7-7

7.3.8. ANNUAL RETURNS 7-7

7.3.9. PAYMENT OF RENT 7-7

7.3.10. RESERVATION IN FAVOUR OF ABORIGINAL PERSONS 7-7 7.4. PERMITS 7-8

7.4.1. TYPES OF PERMITS 7-8

7.4.2. STATUTORY REQUIREMENTS 7-9

7.4.3. APPLICATION PROCESS 7-9 7.5. ASSESSMENT OF RENT 7-10


7.5.1. 5 YEARLY RENT REVIEWS 7-10

7.5.2. OBJECTIONS AND REVIEWS 7-10

7.5.3. VARIATION OF RENT IF A PERMIT IS ISSUED 7-10 7.6. INSPECTION OF PASTORAL LEASES 7-11 7.7. DEFAULTS AND FORFEITURE 7-12

7.7.1. ISSUING OF A DEFAULT NOTICE 7-12

7.7.2. PROSECUTION FOR FAILURE TO COMPLY WITH A DEFAULT NOTICE 7-12

7.7.3. ISSUING A FORFEITURE NOTICE 7-13 7.8. ABANDONMENT OF A PASTORAL LEASE 7-14

7.8.1. CONTROL AND MANAGEMENT 7-14

7.8.2. APPEALS 7-14

7.8.3. COSTS INCURRED BY BOARD CONTROL 7-14 7.9. SALES AND TRANSFERS 7-15

7.9.1. APPROVAL TO SELL 7-15

7.9.2. APPROVAL TO TRANSFER 7-15

7.9.3. RESTRICTION ON TRANSFER OF SHARES IN COMPANIES 7-16

7.9.4. MAXIMUM AREA 7-16

7.9.5. FOREIGN OWNERSHIP 7-17 7.10. MORTGAGES OVER PASTORAL LEASES 7-18 7.11. SUBDIVISION OF A PASTORAL LEASE 7-19

7.11.1. BACKGROUND 7-19

7.11.2. PROCESS 7-20 7.12. AMALGAMATION OF PASTORAL LEASES 7-21

7.12.1. AMALGAMATION OF ENTIRE LEASES 7-21

7.12.2. AMALGAMATION OF PART LEASES 7-22 7.13. ADJUSTMENT OF BOUNDARIES 7-23 7.14. PASTORAL BUSINESS UNITS 7-24 7.15. RENEWAL OF PASTORAL LEASES 7-25

7.15.1. RENEWAL OF PASTORAL LEASES ISSUED UNDER THE LAND ACT 1933 7-25

7.15.2. RENEWAL OF PASTORAL LEASES ISSUED UNDER THE LAND ADMINISTRATION ACT 1997 7-26

7.15.3. COMPENSATION FOR IMPROVEMENTS ON EXPIRY OF PASTORAL LEASES 7-26 7.16. SHARED WATERS ON PASTORAL LEASES 7-27

7.16.1. CREATION OF AN EASEMENT 7-28 7.17. DIVIDING FENCES 7-29

ix Crown Land Administration & Registration Practice Manual July 2013

7.18. PUBLIC ACCESS ON PASTORAL LEASES 7-30

8. EASEMENTS 8-1

8.1. INTRODUCTION 8-1 8.2. WHAT IS AN EASEMENT? 8-2 8.3. TYPES OF EASEMENTS 8-3

8.3.1. EASEMENTS OVER CROWN LAND 8-3

8.3.2. EASEMENTS GRANTED UNDER THE LAND ACT 1933 8-5

8.3.3. PUBLIC ACCESS EASEMENTS 8-6

8.3.4. EASEMENTS GRANTED UNDER OTHER ACTS 8-6

8.3.5. SERVICE EASEMENTS OVER ROADS 8-11 8.4. HOW TO CREATE EASEMENTS OVER CROWN LAND 8-12

8.4.1. GENERAL 8-12

8.4.2. EASEMENTS OVER LAND BEING SOLD IN FEE SIMPLE. 8-14

8.4.3. EASEMENTS OVER CLASS A RESERVES 8-15

8.4.4. FINITE TERM EASEMENTS 8-16

8.4.5. PRICING OF EASEMENTS 8-17

8.4.6. ANNUAL RENT EASEMENTS 8-17 8.5. REMOVAL OF CROWN EASEMENTS 8-18

8.5.1. BY SURRENDER 8-18

8.5.2. BY MINISTERIAL ORDER 8-19

8.5.3. BY MERGER 8-20

8.5.4. BY TAKING ORDER 8-20

8.5.5. BY ORDER OF THE REGISTRAR OF TITLES 8-20

9. COMPULSORY ACQUISITION OF INTERESTS IN LAND 9-1

9.1. INTRODUCTION 9-1

9.1.1. GENERAL 9-1

9.1.2. SINGLE REGISTRATION SYSTEM 9-3

9.1.3. WHO MAY TAKE LAND AND INTERESTS IN LAND? 9-3

9.1.4. HOW MAY LAND AND INTERESTS IN LAND BE TAKEN? 9-4

9.1.5. WHAT COMPRISES LAND AND INTERESTS IN LAND FOR THE PURPOSE OF A TAKING? 9-4 9.2. NATIVE TITLE ISSUES 9-8

9.2.1. GENERAL 9-8


9.2.2. FUTURE ACTS REGIME 9-8 9.3. DELEGATIONS 9-9

9.3.1. GENERAL 9-9 9.4. ACQUISITION BY AGREEMENT 9-10

9.4.1. GENERAL 9-10

9.4.2. CONSIDERATIONS TO BE MADE BEFORE ACQUIRING LAND 9-11

9.4.3. SECTION 168 STATEMENT OF PROCEDURES 9-11

9.4.4. CHECKLIST OF MATTERS BEFORE INSTRUCTING DOL TO ACQUIRE LAND 9-12

9.4.5. SURVEY REQUIREMENTS FOR ACQUIRING LAND BY AGREEMENT 9-12 9.5. TAKING WITHOUT AGREEMENT 9-13

9.5.1. GENERAL 9-13

9.5.2. SECTION 165 ORDER TO CONFER INTERESTS UNDER WRITTEN LAW 9-14 9.6. NOTICE OF INTENTION TO TAKE 9-15

9.6.1. WHAT IS A NOTICE OF INTENTION TO TAKE? 9-15

9.6.2. EFFECT OF A NOTICE OF INTENTION TO TAKE 9-17

9.6.3. CONTENT AND TYPES OF NOTICES OF INTENTION TO TAKE 9-20

9.6.4. WHEN IS A NOTICE OF INTENTION TO TAKE NOT REQUIRED? 9-21

9.6.5. VARIATION OF NOTICES OF INTENTION TO TAKE 9-21

9.6.6. INCREASED PERIOD OF CURRENCY OF NOTICE OF INTENTION TO TAKE 9-22

9.6.7. CANCELLATION OF NOTICE OF INTENTION TO TAKE 9-22 9.7. NOTICE OF ENTRY 9-23

9.7.1. GENERAL 9-23

9.7.2. ENTRY FOR FEASIBILITY STUDIES 9-24

9.7.3. ENTRY FOR RAILWAY CONSTRUCTION 9-24

9.7.4. ENTRY FOR INSPECTION OR ASSESSMENT OF COMPENSATION FOR SURVEYS 9-25

9.7.5. ENTRY FOR TEMPORARY OCCUPATION 9-25

9.7.6. ENTRY FOR WORK TO COMMENCE WITHOUT PRIOR TAKING ORDER 9-26 9.8. TAKING ORDER 9-27

9.8.1. WHAT IS A TAKING ORDER? 9-27

9.8.2. EFFECT OF A TAKING ORDER 9-28

9.8.3. CONTENT AND TYPES OF TAKING ORDER 9-29

9.8.4. CONSISTENCY BETWEEN TAKING ORDER AND NOTICE OF INTENTION TO TAKE 9-29

9.8.5. PROCEDURES FOR LODGING A TAKING ORDER 9-31

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9.8.6. AMENDMENT OF TAKING ORDER 9-33

9.8.7. ANNULMENT OF TAKING ORDER 9-33 9.9. DESIGNATION 9-34

9.9.1. WHAT IS A DESIGNATION? 9-34

9.9.2. EFFECT OF A DESIGNATION 9-35

9.9.3. AMENDMENT OF A DESIGNATION 9-35

9.9.4. CANCELLATION OF A DESIGNATION 9-35 9.10. SELLING ACQUIRED LAND 9-36

9.10.1. GENERAL 9-36

9.10.2. FORMER OWNERS RIGHTS 9-36

9.10.3. EXCEPTIONS TO THE RULE 9-37

9.10.4. DEALING WITH FORMER OWNERS RIGHTS 9-37

9.10.5. SALES OF ACQUIRED LAND 9-39

9.10.6. PROCEEDS OF SALE 9-39 9.11. LEASING ACQUIRED LAND 9-40

9.11.1. GENERAL 9-40

9.11.2. DESIGNATED LAND 9-40

9.11.3. PROCEDURES 9-40

9.11.4. RENTAL 9-40 9.12. EASEMENTS 9-43

9.12.1. GENERAL 9-43

9.12.2. PUBLIC ACCESS EASEMENTS 9-44

9.12.3. GRANTS OF EASEMENT 9-45 9.13. TRANSITIONALS 9-46

10. COMPENSATION 10-1

10.1. INTRODUCTION 10-1 10.2. PERSONS ENTITLED TO COMPENSATION 10-2

10.2.1. GENERAL 10-2

10.2.2. LIMITS TO PAYMENT OF COMPENSATION 10-5 10.3. REGISTRATION OF TITLE 10-6

10.3.1. THE VESTING OF VARIOUS INTERESTS BY TAKING ORDER 10-6

10.3.2. THE IMPACT OF REGISTRATION PURSUANT TO A VOID TAKING ORDER 10-6 10.4. THE CLAIM 10-7


10.4.1. WHO MAY LODGE A CLAIM FOR COMPENSATION? 10-7

10.4.2. TIME LIMIT FOR MAKING A CLAIM FOR COMPENSATION 10-7

10.4.3. THE CLAIM FORM 10-8 10.5. DEALING WITH THE CLAIM 10-10

10.5.1. OFFERS OF COMPENSATION 10-10

10.5.2. GENERAL SETTLING OF A COMPENSATION CLAIM 10-11 10.6. THE STATE ADMINISTRATIVE TRIBUNAL 10-13

10.6.1. GENERAL 10-13

10.6.2. CONSTITUTION OF THE TRIBUNAL 10-13 10.7. ASSESSING COMPENSATION 10-14

10.7.1. GENERAL 10-14

10.7.2. DATE OF ASSESSING COMPENSATION 10-14

10.7.3. EFFECT OF REGISTRATION OF NOTICE OF INTENTION TO TAKE 10-14

10.7.4. OTHER FACTORS TO BE CONSIDERED IN ASSESSING COMPENSATION 10-15 10.8. PAYMENT OF COMPENSATION 10-16

10.8.1. WHEN SHOULD COMPENSATION BE PAID? 10-16

10.8.2. TO WHOM SHOULD COMPENSATION BE PAID? 10-16

10.8.3. EASEMENTS OR OTHER LANDS AWARDED IN LIEU OF COMPENSATION 10-16

10.8.4. OUT OF WHAT FUNDS SHOULD COMPENSATION BE PAID? 10-16

11. GENERAL 11-1

11.1. INTRODUCTION 11-1 11.2. GENERAL PROTECTION FROM LIABILITY 11-2

11.2.1. GENERAL 11-2

11.2.2. RESPONSIBILITIES OF DOL OFFICERS UNDER THE LAW 11-2 11.3. ABILITY OF INSOLVENTS, INCAPABLE PERSONS AND DECEASED PERSONS TO HOLD CROWN LAND 11-3

11.3.1. GENERAL 11-3

11.3.2. INSOLVENT PERSONS 11-3

11.3.3. INCAPABLE PERSONS 11-3

11.3.4. DECEASED ESTATES 11-4 11.4. PROTECTION OF THE CROWN AND MANAGEMENT BODIES FROM LIABILITY 11-5

11.4.1. GENERAL 11-5

11.4.2. RISK MANAGEMENT 11-6

11.4.3. RISK MANAGEMENT ON DOL-MANAGED PROPERTY 11-7

xiii Crown Land Administration & Registration Practice Manual July 2013

11.4.4. RISK MANAGEMENT PROCEDURES 11-7

11.4.5. COMMON LAW DUTY OF CARE 11-11

11.4.6. LIABILITY OF THE CROWN 11-12

11.4.7. LIABILITY OF MANAGEMENT BODIES 11-12

11.4.8. LIABILITY OF THE CROWN AND MANAGEMENT BODIES IN RELATION TO PUBLIC ACCESS ROUTES 11-13

11.4.9. LIABILITY OF THE CROWN AND LOCAL GOVERNMENT IN RELATION TO PUBLIC ACCESS EASEMENTS 11-13 11.5. APPLICATION OF THE PRESCRIPTION ACT 1832 11-14

11.5.1. WHAT IS THE DOCTRINE OF PRESCRIPTION? 11-14

11.5.2. APPLICABILITY OF THE PRESCRIPTION ACT 1832 TO CROWN LAND 11-14 11.6. CLOSURE OF RAILWAYS 11-15

11.6.1. GENERAL 11-15 11.7. OFFENCES ON CROWN LAND 11-16

11.7.1. GENERAL 11-16

11.7.2. TYPES OF OFFENCES 11-16

11.7.3. CAMPING ON CROWN LAND 11-17

11.7.4. VEHICLES ON CROWN LAND 11-17

11.7.5. HARVESTING OF NATURAL FLORA 11-18

11.7.6. TIMBER AND FOREST PRODUCE ON CROWN LAND 11-18

11.7.7. INTERFERING WITH SURVEY MARKS AND SURVEYS 11-19

11.7.8. CONTRAVENTION OF CONDITIONS OF COVENANTS IMPOSED ON CROWN LAND 11-19

11.7.9. PENALTIES FOR OFFENCES ON CROWN LAND 11-19 11.8. UNAUTHORISED STRUCTURES ON CROWN LAND 11-20

11.8.1. GENERAL 11-20

11.8.2. REMOVAL OF UNAUTHORISED STRUCTURES FROM CROWN LAND 11-21

11.8.3. PROFESSIONAL FISHERPERSONS STRUCTURES 11-22

11.8.4. DELEGATION UNDER SECTION 273 OF THE LAA 11-23 11.9. SERVICE OF DOCUMENTS 11-24

11.9.1. GENERAL 11-24 11.10. REGULATIONS 11-25

11.10.1. GENERAL 11-25

11.10.2. FEES REGULATIONS 11-26

11.10.3. REGULATIONS AFFECTING SURVEYS 11-26

11.10.4. REGULATIONS ABOUT ADVISORY PANELS 11-26


11.11. APPROVAL OF FORMS 11-27

11.11.1. APPROVAL BY DIRECTOR GENERAL DOL 11-27

11.11.2. APPROVAL OF REGISTRATION FORMS WITH CONSENT OF REGISTRAR OF TITLES 11-27 11.12. REVIEW OF LAA 11-28

11.12.1. GENERAL 11-28

12. REPEALS, TRANSITIONALS, SAVINGS AND VALIDATION 12-1

12.1. GENERAL 12-1 12.2. SCHEDULE 2 (AS IT RELATES TO THE LAND ACT 1933) 12-2

12.2.1. GENERAL 12-2

12.2.2. EXCEPTIONS TO TRANSITION AND GENERAL APPLICATION OF THE LAA 12-2

12.2.3. INTRODUCTION OF A SINGLE REGISTRATION SYSTEM 12-4 12.3. SCHEDULE 3 (AS IT RELATES TO PRE-LAND ACT 1933) 12-5

12.3.1. GENERAL 12-5 12.4. INCOMPLETE DEALINGS UNDER THE LAND ACQUISITION AND PUBLIC WORKS ACT 1902 12-6 12.5. ROADS ACTIONS COMMENCED UNDER THE LOCAL GOVERNMENT ACT 1960 12-7

13. CONTAMINATED SITES ON CROWN LAND 13-1

13.1. INTRODUCTION 13-1 13.2. CONTAMINATION OF CROWN LAND IDENTIFICATION, REMEDIATION AND MANAGEMENT 13-2 13.3. CLASSIFICATION AND NOTICES 13-3 13.4. REMEDIATION OF CONTAMINATED SITES 13-5

13.4.1. EXEMPTIONS 13-5 13.5. ORPHAN SITES 13-6 13.6. IDENTIFICATION OF CONTAMINATION ON CROWN LAND 13-7

13.6.1. IDENTIFICATION 13-7

13.6.2. FORMER EXPLOSIVES DEPOT SITE 13-7 13.7. LIABILITY IN RELATION TO CONTAMINATION ON CROWN LAND 13-9

13.7.1. TRANSFERRING LIABILITY 13-9 13.8. RECEIVING LAND INTO THE CROWN ESTATE/DOL CONTROL 13-13

xv Crown Land Administration & Registration Practice Manual July 2013

Preliminary and General Information Chapter 1

1-1 Crown Land Administration & Registration Practice Manual July 2013

1. PRELIMINARY AND GENERAL INFORMATION

1.1. THE SCHEME The Department of Lands (DoL), in consultation with the WA Land Information Authority (LANDGATE) has prepared this manual. In using the manual it must be clearly understood that it is not legal advice and whilst all care has been taken in the preparation of this publication, no responsibility is accepted by DoLfor any errors, omissions or inaccuracies whatsoever.

No written process in any manual is static. Changes will necessarily be made regularly as DoL officers continue with their daily work. Despite this, it is hoped that this manual will assist in providing a starting base for most officers and staff in DoL as well as being informative to other Government departments and members of the public.

The Land Administration Act 1997 (LAA), as amended, is the main statute governing the administration of Crown land in Western Australia.

The manual has been assembled in a way that reflects the Sections, Divisions, and Parts of the LAA.

This manual should be read in conjunction with the LAA itself, the Transfer of Land Act 1893 (TLA), the Land Titles Registration Practice Manual and, where applicable, the Survey and Plan Practice Manual. These manuals can be downloaded free of charge from the internet via LANDGATEs website Practice Manuals

DoL officers should also read this manual with the Quality Management System (QMS) database which sets out the processes for each type of Crown land transaction and the relevant policies and legal rulings relating to the respective processes.

Chapter 2 of this manual sets out the general registration requirements and procedures for Crown actions under the TLA.

In addition, the first part of each chapter in the manual sets out the business processes and administrative requirements of Crown land administration under the LAA. The second part of each chapter will set out the registration requirements as they affect the business processes in each Part of the LAA and will be required to enable conveyances and other dealings in Crown land to be registered under the Torrens system of land registration in order to be effective.

Where registration procedures are required, Chapter 2 of this manual together with the relevant chapter affecting the particular Crown action should be read in conjunction with the relevant paragraphs of the Land Titles Registration Practice Manual.

Chapter 1 Preliminary and General Information

Crown Land Administration & 1-2 Registration Practice Manual March 2012

1.2. THE LEGISLATION AND ITS PURPOSE Responsible government was granted to the State of Western Australia in 1890 by section 3 of the Western Australian Constitution Act 1890 (Imp.), 53 & 54 Vict. c.26. By that section, the Crown, in whom was vested the wastelands of the colony, granted and vested the entire management and control of the wastelands of the Crown, including the proceeds of the sale, letting and disposal of that land, and all royalties, mines, and minerals, in the legislature of the Western Australian colony. In this context the legal notion of wastelands are those lands not granted in freehold title.

The exclusive power over Crown lands granted to the Western Australian Parliament represented an end to the Imperial authority granting estates in Crown land in Western Australia. Under this Imperial Constitution Act, the power to grant estates in Crown land became entirely statutory.

Over the last 60 years, Crown land administration in Western Australia was governed by the Land Act 1933. The Land Act 1933, its predecessor, the Land Act 1898 and before that, a series of Land Regulations (the last set of Land Regulations before the Land Act 1898 was in 1894), formed the basis of Crown land administration in this State. The manner of dealing with and disposing of Crown land has always been strictly controlled by Parliament and the legislation was, before the proclamation of the LAA, very prescriptive as to the manner for disposing of Crown land and interests in Crown land.

The basis for the administration of Crown land and the Crowns ability to dispose of or deal with Crown land underwent a metamorphosis under the Land Administration Act 1997 (LAA) and the Acts Amendment (Land Administration) Act 1997. The prescriptive and outdated manner of disposing of Crown land was modernised and updated to reflect the needs for economic growth. Also, a registration system for Crown land tenure was established under the Torrens system of land registration.

The LAA and the Acts Amendment Land Administration Act 1997 were proclaimed on 30 March 1998 and commenced operation on that date. Both these Acts introduced a new era in the administration and processing of Crown land in Western Australia by:

substantially re-writing the existing law on Crown land administration under the Land Act 1933, and

implementing the use of a single registration system under the TLA. Crown land, under section 3 of the LAA, is defined to mean all land other than freehold land. For the purposes of the LAA, a reference to the freehold of any land is a reference to the fee simple, whether absolute, conditional, or otherwise, of that land.

Under the LAA, all transactions relating to interests in Crown land are now registered under the TLA and not gazetted, as was the case in many instances under the Land Act 1933.

As a result of the introduction of the LAA and the associated registration system, documents dealing in Crown land forwarded to DoL for the prior consent of the Minister for Lands under section 18 of the LAA must be prepared in an approved format acceptable for registration purposes under the TLA. For further information on the types of documents that must be forwarded to DoL for the Ministers consent, Chapter 2 of this manual.

This manual will give some guidance to a better understanding of the administration of Crown land and the preparation and registration of documents creating, effecting, cancelling or altering interests and other rights in Crown land.

The content in this manual will cover operational procedures relating to the granting and assembly of tenure and interests in Crown land as well as registration processes for both existing interests granted pre-LAA and for new interests.

Preliminary and General Information Chapter 1


1.3. A SINGLE REGISTRATION SYSTEM FOR BOTH CROWN AND FREEHOLD LAND A major proposal of the LAA was the introduction of a Torrens system of land registration under the TLA and its application to Crown land. This registration system for Crown land mirrors, as closely as possible, the registration system for freehold land.

When the LAA commenced operation on 30 March 1998, a single registration system for all land in Western Australia was created. All dealings affecting any land in Western Australia must be lodged and registered with the Registrar of Titles at LANDGATE in order to have that dealing validated and made effective. Any document setting out a transaction for Crown land under the LAA that is not registered, will not convey that interest until it is registered or recorded.

More detail on the single registration system is set out in Chapter 2 of this manual.

Mining tenements and petroleum rights and interests have not been included within this registration system. This has been specifically provided in section 5 of the LAA. The Department of Mineral and Petroleum Resources maintain a separate register of such interests.

Chapter 1 Preliminary and General Information

Crown Land Administration & 1-4 Registration Practice Manual March 2012

1.4. NATIVE TITLE ISSUES When considering any proposal affecting Crown land one should always bear in mind the High Court decision of Mabo v Queensland (No. 2) (Mabo No 2) (1992) 175 CLR 1. This High Court decision dealing with native title over un-alienated Crown lands off Queensland created wide-ranging implications Australia wide which must be considered when dealing with Crown land interests and tenure. The common law concepts of native title expounded by the High Court are laid down in the Native Title Act 1993. This influences the decisions and processes relating to Crown land in this State. However, it is not the purpose to discuss the native title implications of Crown land administration and registration in detail. Certain aspects to native title issues are raised in this manual where relevant.


CROWN LAND ADMINISTRATION AND REGISTRATION PRACTICE MANUAL

CHAPTER 02 GENERAL ADMINISTRATION AND REGISTRATION OF CROWN INTERESTS AND TENURE CHANGES IN WESTERN AUSTRALIA

TABLE OF CONTENTS

2. GENERAL ADMINISTRATION AND REGISTRATION OF CROWN INTERESTS AND TENURE CHANGES IN WESTERN AUSTRALIA 2-1

2.1. INTRODUCTION 2-1 2.2. CROWN LAND IN WESTERN AUSTRALIA POWERS TO LEGISLATE AND TRANSACT 2-2

2.2.1. LANDS ABOVE THE LOW WATER MARK 2-2

2.2.2. SUBMERGED LANDS THE RIGHTS OF THE STATE TO MAKE LAWS IN RESPECT OF THE TERRITORIAL SEA 2-3

2.2.3. POWERS TO HOLD AND DEAL IN CROWN LAND 2-5 2.3. CROWN LAND REGISTRATION A TORRENS SYSTEM OF LAND REGISTRATION IN CROWN LAND 2-6

2.3.1. CONSEQUENTIAL AMENDMENTS TO THE TLA 2-7

2.3.2. ADVANTAGES OF TORRENS SYSTEM 2-7

2.3.3. WHAT IS CROWN LAND? 2-8

2.3.4. IDENTIFYING CROWN LAND 2-8

2.3.5. HOW CROWN LAND WAS BROUGHT UNDER THE TORRENS SYSTEM 2-9

2.3.6. CROWN GRANTS 2-9

2.3.7. CROWN LAND RECORDS 2-14

2.3.8. FOUR DIFFERENT TYPES OF TITLES FOR CROWN LAND 2-15

2.3.9. INTERNAL INTEREST PLANS 2-22

2.3.10. APPROVED DOCUMENT FORMS 2-23

2.3.11. REGISTRATION OF PRE-LAA DOCUMENTS FOR CROWN INTERESTS 2-24

Chapter 2 General Administration and Registration of Crown Interests and Tenure Changes in Western Australia

Crown Land Administration & ii Registration Practice Manual July 2013

2.3.12. REGISTRATION OF NEW CROWN INTERESTS UNDER THE LAA 2-30

2.3.13. REGISTRATION OF CROWN INTERESTS CREATED BY EXTERNAL AGENCIES UNDER STATE LEGISLATION OTHER THAN THE LAA 2-37

2.3.14. VALIDATION OF QUALIFIED CROWN LAND TITLES 2-38

2.3.15. IDENTIFICATION OF CHAIN OF TITLE 2-43 2.4. POWERS OF THE MINISTER FOR LANDS 2-46

2.4.1. GENERAL 2-46

2.4.2. DELEGATION OF MINISTERS POWERS 2-47

2.4.3. CONSTRAINTS ON THE MINISTERS POWERS 2-48

2.4.4. CROWN LAND DISPOSITION 2-49 2.5. CONTINUING INTERESTS 2-53

2.5.1. PRE-LAA 2-53

2.5.2. POST-LAA 2-54 2.6. POSITIVE AND RESTRICTIVE COVENANTS 2-56

2.6.1. GENERAL 2-56

2.6.2. CREATION OF SECTION 15 COVENANTS 2-57

2.6.3. REGISTRATION OF SECTION 15 COVENANTS 2-58 2.7. MEMORIALS 2-60 2.8. WARNINGS OF HAZARDS AND OTHER FACTORS THAT AFFECT THE USE OR ENJOYMENT OF LAND 2-61 2.9. APPROVAL OF THE MINISTER UNDER SECTION 18 OF THE LAA 2-62

2.9.1. GENERAL 2-62

2.9.2. WHAT IS AN INTEREST IN CROWN LAND? 2-63

2.9.3. WHAT CONSTITUTES PRIOR WRITTEN APPROVAL? 2-64

2.9.4. CHECKLIST OF MATTERS THAT SHOULD BE CONSIDERED WHEN A REQUEST IS MADE FOR APPROVAL UNDER THE LAA 2-66

2.10. CAVEATS LODGED OVER CROWN LAND 2-67

2.10.1. GENERAL 2-67

2.10.2. WHAT IS A CAVEAT? 2-68

2.10.3. WHO IS THE REGISTERED PROPRIETOR FOR CAVEATS OVER CROWN LAND? 2-69

2.10.4. NATURE OF A CAVEATORS CLAIM 2-71

2.10.5. INTERESTS IN CROWN LAND CAPABLE OF SUPPORTING A CAVEAT 2-71

2.10.6. CAVEATS CAN BE LODGED UNDER SECTION 20(2) OF THE LAA 2-72

2.10.7. WHAT CONSTITUTES AN INTEREST FOR THE PURPOSES OF SECTION 20 OF THE LAA? 2-73

2.10.8. ROLE OF DOL IN GRANTING APPROVAL TO EVIDENCE SUPPORTING CAVEATS 2-73

General Administration and Registration of Crown Interests Chapter 2 and Tenure Changes in Western Australia

iii Crown Land Administration & Registration Practice Manual July 2013

2.10.9. REGISTRATION REQUIREMENTS OF CAVEATS OVER CROWN LAND 2-73

2.10.10. FORMS TO BE USED 2-73

2.10.11. REMOVAL OF CAVEATS 2-74

2.10.12. CAVEATS LODGED BY THE MINISTER FOR LANDS UNDER SECTION 21 OF THE LAA 2-74 2.11. FORFEITURE OF INTERESTS IN CROWN LAND 2-75

2.11.1. GENERAL 2-75

2.11.2. TRANSITIONAL PROVISIONS LICENCES GRANTED UNDER THE LAND ACT 1933 2-76

2.11.3. FORFEITURE PROCESS GIVING OF NOTICE 2-77

2.11.4. APPEAL PROCESS 2-79

2.11.5. CONSEQUENCES OF MAKING A FORFEITURE ORDER 2-79

2.11.6. AFTER FORFEITURE 2-80 2.12. APPLICATION FOR APPROVAL TO COMMENCE DEVELOPMENT ON CROWN LAND (MRS FORM 1) 2-81 2.13. APPLICATION FOR PLANNING APPROVAL UNDER A TOWN PLANNING SCHEME 2-82



2. GENERAL ADMINISTRATION AND REGISTRATION OF CROWN INTERESTS AND TENURE CHANGES IN WESTERN AUSTRALIA

2.1. INTRODUCTION This chapter covers Part 2 of the Land Administration Act 1997 (LAA). Part 2 establishes the framework for the single registration system and also sets out the following matters:

the general powers of the Minister for Lands as it relates to the Ministers body corporate powers to deal in Crown land and certain freehold land;

the powers of the Minister for Lands to initiate and sell land administration expertise to the Commonwealth of Australia, an External Territory and any country outside Australia;

delegation powers of the Minister for Lands; other administrative powers of the Minister as they relate to the creation of positive

and negative covenants over Crown land, and creation of memorials over land;

powers of the Minister to subdivide and develop Crown land; and other related powers of the Minister for Lands.


Crown Land Administration & 2-2 Registration Practice Manual July 2013

2.2. CROWN LAND IN WESTERN AUSTRALIA POWERS TO LEGISLATE AND TRANSACT

2.2.1. LANDS ABOVE THE LOW WATER MARK Prior to 1889 Imperial legislation applied to the Swan River Colony and Western Australia, with a series of Land Regulations being made in relation to administration of Crown land.

Responsibility for the management and control of the waste lands of the Crown was committed to the Western Australian Parliament by section 3 of the Western Australia Constitution Act 1889 (Imperial), which provides:

The entire management and control of the waste lands of the Crown in the colony of Western Australia, and of the proceeds of the sale, letting and disposal thereof, including all royalties, mines and minerals, shall be vested in the legislature of that colony.

Pursuant to this provision, legislative authority (from the Western Australian Parliament) is required for all dealings in the waste lands of the Crown. That is to say, Crown land may only be dealt with in accordance with a specific statute, a point affirmed by a 1972 High Court ruling.

Section 3 of the Land Act 1898 (which replaced earlier Land Regulations) defined Crown lands to mean the waste lands of the Crown within the Colony, that is to say, lands vested in Her Majesty, and not for the time being reserved for or dedicated to any public purpose of set apart as a city, town, or village, or granted or lawfully contracted to be granted in fee simple or with a right of purchase under this Act or any Act or Regulations hereby repealed, and which are not held under lease or license under the Goldfield Act or Mineral Lands Act, and include all lands between high and low watermark on the sea-shore and on the banks of tidal water.

Similarly, section 3 of the Land Act 1933 defined Crown lands to mean all lands of the Crown vested in Her Majesty, except land which is, for the time being, reserved for or dedicated to any public purpose, or granted or lawfully contracted to be granted in fee simple or with the right of purchase under this Act or any Act hereby repealed, and including all lands between high and low water mark on the seashore and on the banks of tidal waters, and including, for the purposes of section 116 (dealing with leasing), all lands below low water mark on the seashore and on the banks of tidal waters and all lands being the beds of water-courses.

It was clear from the Act that tidal waters below low water mark could not be dealt with under the Act, except in relation to leasing.

Section 3 of the LAA defines Crown land, in conjunction with the definition of land, to mean all land within the State which is not alienated (that is, which has not been disposed of in fee simple or freehold), including coastal waters out to three nautical miles offshore. The LAA is the States primary statute for dealing with Crown Land.



2.2.2. SUBMERGED LANDS THE RIGHTS OF THE STATE TO MAKE LAWS IN RESPECT OF THE TERRITORIAL SEA In 1973 the Commonwealth of Australia enacted the Seas and Submerged Lands Act 1973 (SSLA). The SSLA was, and remains, the principal Commonwealth legislation dealing with the sovereignty seaward of the low water mark. The purpose of the SSLA was to declare sovereign rights (although not absolute sovereignty) in the Commonwealth over the continental shelf of Australia for the purpose of exploring and exploiting its material resources.

In the 1975 High Court case of NSW v The Commonwealth, the majority held that the territory of the States finished at the low water mark and that the adjacent seas were held by the Crown in right of the Commonwealth.

As a consequence of this decision the States had no legislative powers in relation to the offshore areas as part of their territory, and any legislative powers which they had in relation to the offshore area was extra-territorial in nature and dependant upon an appropriate nexus with their territory, so as to found valid legislation under the constitutional power to make laws for the peace order and good government of the State.

As a result of the States concerns over the 1975 High Court decision the Commonwealth and the States negotiated a constitutional settlement embodied in complementary State and Federal legislation in 1980 comprising as Federal legislation the Coastal Waters (State Title) Act 1980 and the Coastal Waters (State Powers) Act 1980, accompanied by consequential amendments to the SSLA and major amendments to the Petroleum Submerged Lands Act 1967 (PSLA).

Reciprocal legislation was enacted by the State, and in Western Australia this comprised the Constitutional Powers (Coastal Waters) Act 1979 (CPCWA), which set out the text of the Commonwealth Act and requested the CPCWAs enactment by the Commonwealth Parliament, pursuant to section 51 (xxxviii) of the Commonwealth Constitution.

The effect of the settlement legislation was as follows:

(i) it extended the powers of each State under its Constitution to make laws:

(a) in relation to the coastal waters of the State as defined, the three nautical mile area which is within the States adjacent area, including the airspace and seabed and subsoil;

(b) in relation to the area beyond the coastal waters to the limit of the adjacent area, including the airspace and seabed and subsoil, but only in relation to subterranean mining from land within the State and ports and harbours;

(c) in relation to fishing in Australian waters outside coastal waters, under agreements with Commonwealth; and it

(ii) vested each State with all the right and title in relation to the seabed beneath the coastal waters, as would have accrued to the State if that seabed were within the limits of the State, subject to various small reservations;

(iii) did not extend the limits of the States;

(iv) did not derogate from the paramountcy of Commonwealth sovereignty or legislative power.



The following definitions are important:

Coastal waters are determined by the SSLA definition of the territorial sea but are limited to three nautical miles offshore, so that the Commonwealths extension of the territorial sea in 1990 did not increase the territory or legislative powers of the States.

The adjacent area is defined by reference to the PSLA, and is an area referred to in Schedule 2 of the PSLA, which is a series of latitudinal and longitudinal points which were, in essence the limits of the State as established in the Letters Patent, but are the within the Continental Shelf.

Continental Shelf essentially corresponds with the Continental Shelf definition under the Montego Bay Law of the Sea Convention, subject to certain bilaterally negotiated exceptions.

The effect of the package was to give the States both legislative powers and title over coastal waters out to a three mile limit from the coast, with any consequent benefits to be derived from the control over the exploitation of resources in that area.

The States do not have title over the seabed, subsoil, and water outside the territorial sea, except in cases where the Commonwealth has agreed to give them such powers as under the PSLA. The State of Western Australia cannot grant title to or over the seabed, subsoil and waters which it does not own. This is because the Crown in right of the Commonwealth holds that title.

It is important to emphasise that the two Coastal Water Acts vested title in the seabed of the coastal waters in the States, as if within the limits of the State, and empowered the States to make laws in relation to those waters as if they were part of the State. They did not extend the limits of the State by varying its area, the limit of the State being defined in the Commonwealth of Australia Constitution Act 1900 at Federation.

Consequently, the laws (written and unwritten) of the State prior to the Coastal Waters Act were not automatically extended to the coastal waters, as the limits of the States have not been extended. Only the power of the State to legislate with regard to the coastal waters has been extended. Those waters are held by the States under Commonwealth law, and have not been excised from the territory of the Commonwealth.

In Western Australia, the potential void is filled by the Offshore (Application of Laws) Act 1982. That law applies the whole of the written and unwritten laws of Western Australia (other than criminal laws), present and future, to the coastal waters.



2.2.3. POWERS TO HOLD AND DEAL IN CROWN LAND There is provision in the LAA to the effect that from its commencement on 30 March 1998, all Crown land and all land held in the name of the Crown should be registered in the name of the State of Western Australia. Section 29(5) provides for the issue of certificates of Crown land title in the name of the State of WA over Crown land.

Section 178(1)(c) provides that where the land is taken for a public work, it should be held as Crown land in the name of the State of WA, unless provision is made in the taking order for the land to be registered in the name of another party.

Sections 10 and 11 empower the Minister for Lands in the name and on behalf of the State to exercise powers under the LAA in relation to dealing with Crown land, or acquiring land. His powers may be delegated to officers of the Department of Lands, pursuant to section 9. The Minister for Lands and DoL officers acting under delegated authority sign for and on behalf of the State of Western Australia.

The Crown or Her Majesty Queen Elizabeth the Second is a juristic entity that comprises the executive branch of Government. Executive power is exercised by the Premier and other Ministers who direct departments under their portfolios. For the purposes of the LAA, rather than referring to Her Majesty Queen Elizabeth the Second or the Crown in right of the State of Western Australia, it was simpler to call it the State of Western Australia.



2.3. CROWN LAND REGISTRATION A TORRENS SYSTEM OF LAND REGISTRATION IN CROWN LAND When the LAA commenced operation on 30 March 1998, all dealings creating interests or granting tenure (that is, not licences for example) in Crown land must be registered under the provisions of the Transfer of Land Act 1893 (TLA) to be legally effective to convey that interest in Crown land (see section 19 of the LAA). This is the same principle that applies to the registration of dealings for freehold land.

The rationale for introducing the LAA was to revolutionise the administration of Crown land in Western Australia by introducing new policies and procedures to modernise Crown land administration and management methodologies. The LAA contemplates utilising, and where appropriate mirroring, the well-established conveyancing procedures, and document registration processes used for Freehold land.

A transparent Single Registration system under the LAA will facilitate the creation of one Land Register for Western Australia incorporating Crown land and Freehold land and provide a State guarantee to registered interests on Crown land titles.

A major feature of the LAA is the devolution of responsibility for administrative functions for the Crown land from the Governor in Executive Council to the Minister for Lands and other delegates provided for in the LAA.

This permits more efficient practices to be adopted by enabling more timely decisions to be made by the Minister without dependence on Executive Council formalities, timeframes, and gazettal publication procedures. Orders made by the Minister for Lands or other authorised delegates now replace Governors Orders in Council and Proclamations published in the Government Gazette.

As with all other dealings registered or caveats lodged over Crown land, under section 19 of the LAA, these Ministerial orders are effective, not upon execution by the Minister or duly authorised delegate, but upon registration with the Registrar of Titles under the TLA. This registration process replaces the former gazettal publication procedure. In the case of compulsory acquisition of land, the LAA also allows multiple related actions to be dealt with on the registration of a single document known as a Taking Order.

This registration system is closely aligned to the Torrens system of land registration for freehold land with certain variations necessary for the transition of the previous recording system for Crown interests and dealings under the Land Act 1933 on a Crown Land Record to a single registration system.

To achieve this, the TLA has been substantially amended to enable interests in Crown land to be registered in the same Register as used for freehold land. This Register will continue to be administered by the Registrar of Titles at LANDGATE.

To fully understand the impact and practical implications for the registration of interests in Crown land, you need to be aware of how the TLA has been amended.



2.3.1. CONSEQUENTIAL AMENDMENTS TO THE TLA The introduction of a Torrens system of land registration for Crown land was achieved by consequential amendments to the TLA:

Like Part IIIA dealing with Crown leases (inserted into the TLA in the 1950s), a new Part IIIB has been inserted into the TLA. This Part, like Part IIIA, only applies to Crown land. To provide a link with the administration of Crown land powers in the LAA, Part IIIB contains some of the definitions from the LAA and provides the Registrar of Titles with the ability, on application by the Minister for Lands, to create and register different types of titles for Crown land.

Part IIIB of the TLA sets out some specific provisions that only apply to Crown land. It also sets up the procedure that enables the Registrar and Commissioner of Titles to create State-guaranteed interests and indefeasible titles for Crown land. Ultimately, it is intended to have a Torrens Land Register for all parcels of land in this State, comprising both Crown and freehold land all registered under the TLA.

In interpreting the TLA for Crown land registration, sections 4(1a), 4(1b), 4(1c) and section 4A of the TLA must always be considered. Section 4A sets out the provisions of the TLA that do not apply to Crown land. Sections 4(1a), 4(1b) and 4(1c) expressly provide that all the provisions in the TLA, as modified, will be read as if it applies to Crown land unless the contrary intention appears or as prescribed. As at the date of publication, no regulations modifying the TLA in respect of Crown land have been prescribed.

The definition of Proprietor for the purposes of the TLA has been specifically amended and expanded. The term Proprietor in relation to Crown land does not mean the same as Proprietor of freehold land. In the Crown estate, a Proprietor is defined as a holder of an interest in Crown land, or a management body as defined in the LAA, because the Crown is always the true owner of Crown land.

All Crown land is owned by the Crown and registered in the name of the State of Western Australia until it is specifically alienated. The radical title of the Crown in respect of Crown land always remains with the Crown. It is for this reason that no duplicate titles for Crown land are issued.

2.3.2. ADVANTAGES OF TORRENS SYSTEM The advantages of a Torrens system of land registration for Crown land cannot be over-emphasised. Any person dealing with Crown interests will ultimately obtain -

security and certainty of title; less delay and expense; simplification of the processes and dealings previously used for Crown land

administration; and

accuracy in the transactions relating to Crown land. These advantages will enable all persons dealing with and managing Crown land to access LANDGATEs computerised land registration system and search and obtain copies of any dealings relating to, as well as being able to identify the current status of, a parcel of Crown land.

This Register for Crown land has been incorporated into the existing Register for freehold land under the TLA. A registration system under the TLA for all land and interests in land in Western Australia (Crown and freehold) is now available within LANDGATE.



2.3.3. WHAT IS CROWN LAND? Crown land is defined in section 3(1) of the LAA to include all land other than alienated land. This includes all land within the limits of the State that forms the airspace, seabed and coastal waters of the State. An example of a Crown title created for the wreck site of HMAS Swan at Dunsborough is set out in Attachment 1. In other words, Crown land is all land in Western Australia for which there is no certificate of title under the TLA, nor memorial nor grant registered under the Registration of Deeds Act 1832. Any land registered under the Registration of Deeds Act 1832 and which has been transferred to the Crown or resumed is considered to be Crown land.

Where a Government department or statutory authority acquires or purchases the land in a certificate of title, the land is not automatically revested as Crown land. The land is subject to the legislation administered by the Government department or under which a statutory authority carries on its functions. Subject to the legislation, the Government department or statutory authority has all the rights and obligations of every landowner.

Where acquired land is revested or where the acquiring agency takes management of existing Crown land through dedication under an Act such as the Marine and Harbours Act 1981, that agency has special statutory powers and responsibilities. Such land is nevertheless Crown land within the meaning of the LAA. Generally, in practice, DoL would not however deal with such land under the LAA except with agreement of the statutory management body.

Nearly all roads are Crown land (see Chapter 5 of this manual). Most recreation reserves, river foreshores and beaches are also Crown land, and public utilities (dams, pump stations, electricity switch-yards, etc) are usually constructed on Crown land.

2.3.4. IDENTIFYING CROWN LAND For the purposes of land identification and as provided by section 6 of the LAA, the State of Western Australia has been divided into five divisions - South West, North West, Eucla, Eastern and Kimberley (see Schedule 1 of the LAA). The divisions in turn are divided into districts, such as Swan, Canning, Plantagenet, etc. When Crown land is subdivided into rural (farm) blocks, they are labelled with a district name and sequential number (for example Swan Location 4567, or Plantagenet Location 12345).

Within each district are townsites and suburban areas, where the lots are smaller and given a townsite name and number (for example Perth Lot 123 and Perth Sub Lot 456). The system also provides for the creation of intermediate sized lots called Agricultural Area Lots and Estate Lots. If the Crown land is converted to freehold and subsequently subdivided the legal land description continues, for example a house in Belmont could be portion of Swan Location 16 and being Lot 1 on Plan 1245. When land remains under the Land Act 1933, the original system of nomenclature still applies. Where a portion of Crown land is reserved for a particular purpose, it is allocated a Crown land description or retains its Crown land description and a reserve number is added.

The Tenure Information Services Section in LANDGATE maintains a number of systems that enable land tenure, including Crown land, to be searched.

Defined areas of Crown land will have Crown allotment numbers allocated. Undefined areas of Crown land are now classified as unallocated Crown land (in earlier days known as waste lands of the Crown, or vacant Crown land under the Land Act 1933) and may not given a reference as no interests in the land are known to exist.

Under SmartRegister, the location number and the Crown Plan number for a piece of Crown land referred to above will become a Lot on Plan parcel identifier (Register Number) for the digital title. The District/Town/Agricultural Area/Estate name will be omitted from the land description.



2.3.5. HOW CROWN LAND WAS BROUGHT UNDER THE TORRENS SYSTEM Land alienated before 1 July 1875 may be brought under the TLA by:

voluntary application pursuant to the provisions of Part II of the TLA; application under the provisions of the Real Property (Commonwealth Titles) Act,

1925 (No 5 of 1925); and

the lodgement of a Memorial in the Deeds Office of a Taking Order under Part 9 of the LAA.

After 1 July 1875, land alienated from the Crown was brought under the TLA by lodgement of a Crown Grant at LANDGATE, where it was allocated a certificate of title number pursuant to section 18 of the TLA. However section 18 TLA was repealed in 1997 and this method is no longer used.

Before the introduction of the LAA, the registration, under Part IIIA of the TLA, of a Crown lease granted for a period of five years or longer and issued under the Land Act 1933 was registered under Part IIIA of the TLA.

Following the introduction of the LAA, land being alienated from the State is now brought under the TLA by the preparation and lodgement of a Transfer document.

All transactions affecting Crown land may now be registered under the TLA on a certificate of Crown land title (see section 68 (2), (3) & (4) of the TLA and section 19 of the LAA).

2.3.6. CROWN GRANTS As mentioned above, before the introduction of the LAA, land was alienated into the freehold by the creation of a Crown Grant. A Crown Grant is a title to land in fee simple, formerly Crown land, granted by the Queen (by her Western Australian representative, the Governor) to a person, company, statutory body or incorporated association. The grant may be made for a cash consideration or on the completion of certain developments that will benefit the State or for a mixture of both.

Service or religious organisations may have been granted land free of cost to be held on trust for specific purposes beneficial to the community. In this case, the land must be used only for that specific purpose and the Crown Grant was said to be a Crown Grant in Trust. Under the LAA, such land is now known as conditional tenure land.

When the land is no longer required for its stated purpose, it may be sold and the value of the land returned to the Crown (State Government), leaving the value of the building on the land as the revenue to be returned to the organisation.

Every Crown Grant was subject to reservations to the Crown of the minerals in the land and the land grant was usually limited in depth, either to a depth of 12.19 metres or a depth of 60.96 metres (these limits are the metric equivalents of the Imperial measurements of 40 feet and 200 feet).

Each Crown Grant also reserved to the Crown the right to resume (now called a taking under the LAA) the land or use part of it for the construction of public works.

Most land titles in Western Australia were derived from a subdivision of land contained in an earlier Crown Grant and all titles derived from a grant are held subject to the same conditions as those listed in the Grant.



2.3.6.1. HISTORICAL DEVELOPMENT OF DEPTH LIMITS AND MINERAL RESERVATIONS

Prior to 1 January 1898, no depth was expressed in Crown Grants, but in the Government Gazette dated 14 January 1898 at page 57, a notice appeared limiting the depth to 20 feet within Goldfields and Mining Districts.

In the Land Act 1898, section 15 provided for a limited depth, and in the Regulations published in Government Gazette dated 17 March 1899 at page 812 (to date from 1 January 1899), the limits were:

Within Goldfields and Mining Districts - 40 feet (12.19 metres)

All other lands - 2000 feet (609.6 metres)

The Regulations were amended in Government Gazette dated 9 March 1906 at page 816 (to date from 1 January 1907) as follows:



With the proclamation of the Land Act 1933 and section 15(2) on 6 March 1934, the Regulations under that Act as published in Government Gazette 2 March 1934 at page 293, provided in Regulation 15 limited depths as follows:



or such other depths, in special cases, as the Minister in his discretion may direct.

Regulation 15 was repeated in the Regulations published in Government Gazette dated 1 August 1968.

As the Mining Districts expanded with the increasing mineral activity, more Crown Grants with 12.19 metre depth limitations and less of the 60.96 metre variety issued, until finally on 22 May 1981, the whole of the State was covered by Mining Districts and the 12.19 metre depth limit came into force throughout the State of Western Australia.

Very few variations occurred at the discretion of the Minister and, as a general rule, all land below a depth of 12.19 metres was usually retained (together with all minerals to the surface and the usual rights and reservations) by the Crown.

2.3.6.2. DEPTH LIMITS AND MINERAL RESERVATIONS ON COMMONWEALTH ACQUIRED LAND

The law in relation to the acquisition of land by the Commonwealth of Australia is governed by the Lands Acquisition Act 1989 (Commonwealth) and the Real Property (Commonwealth Titles) Act 1925.

The general principles, as understood by the Commonwealth of Australia and the State of Western Australia, are as follows:

When the Commonwealth of Australia acquired privately held fee simple land, it receives only those rights set down in the relevant Certificate of Title, subject to all reservations and rights retained by the State under the original Crown Grant and under State legislation;



When the Commonwealth compulsorily acquired privately held fee simple land, it receives both the land described in the relevant Certificate of Title but free of all the reservations and rights formerly retained by the State, and all land (free of all reservations, rights, etc.) to the centre of the Earth;

When the Commonwealth acquired Crown land from the State by negotiation, the Commonwealth received the unrestricted title to the land to the centre of the Earth (under section 134(2) of the Lands Acquisition Act 1989 (Commonwealth);

The same applies, as in the point above, to Crown land compulsorily acquired by the Commonwealth.

Crown Grants created and registered in the name of the Commonwealth of Australia are unlimited in depth and do not contain mineral reservations or a right for the Crown (the State) to resume the land.

The State and the Commonwealth arrived at an agreement in the 1950s whereby whenever the Commonwealth privately disposed of its land, the Commonwealth would instruct the Commonwealth Crown Solicitors Office (now known as the Australian Government Solicitors Office) to revest any residual rights in the State in each case. The residual rights formed the mineral rights and other reservations contained in the standard Crown Grant forms with respect to rural and town lands as set out in the Land Act 1933. The general depth limitation in all cases was 12.19 metres.

Based on this procedure, LANDGATE issued two certificates of title one for the surface of the land to a given depth, and the other comprising land below that depth to the centre of the Earth including those mineral rights and reservations normally held and reserved by the State in a Crown Grant.

Under these arrangements, the Commonwealth agreed that whenever it intended to dispose of land which had been acquired to the centre of the Earth, it would reserve those rights and reservations normally reserved by the State under the Land Act 1933, and immediately transfer those rights and reservations back to the State. This would then place the Commonwealths purchaser of that land in exactly the same position as if that purchaser had acquired the land directly from the State itself.

When the Mining Act 1978 was introduced, legislation was introduced in section 9 of that Act as follows:

9. Gold and silver and other precious metals property of the Crown

(1) Subject to this Act

(a) all gold, silver, and any other precious metal existing in its natural condition on or below the surface of any land in the State whether alienated or not alienated from the Crown and if alienated whenever alienated, is the property of the Crown;

(b) all other minerals existing in their natural condition on or below the surface of any land in the State that was not alienated in fee simple from the Crown before 1 January 1899 are the property of the Crown.

(2) Notwithstanding anything in this Act or any previous enactment the owner, grantee, lessee or licensee of, or other person entitled to, any land to which this section or any corresponding provisions apply, that is not the subject of a mining tenement, is entitled to use any mineral existing



in a natural state on or below the surface of the land for any agricultural, pastoral, household, road making, or building purpose, on that land.

Despite that section of the Mining Act 1978, it is doubtful whether its effect will bind the Commonwealth of Australia where the Commonwealth has acquired or acquires land compulsorily or, directly from the State and the above process should be followed in cases where land owned by the Commonwealth of Australia is being sold to third parties.

2.3.6.3. SINCE 30 MARCH 1998

Following the introduction of the LAA (which commenced operation on 30 March 1998), Crown Grants are no longer created and registered by the Governor and the Minister for Lands. Depth limits are no longer specified unless they are already in existence.

Crown land can now be brought under the TLA by the lodgement and registration of a Transfer of Land document after a settlement (similar to a settlement of freehold land) has taken place. The Transfer conveys a fee simple interest in the land subject to all other rights and reservations retained by the State in any written law. This will result in the cancellation of the certificate of Crown land title and the creation and registration of a certificate of (freehold) title. Where land to a specific depth or height is to be transferred to the freehold, a Deposited Plan is required to define the cubic depth or height as a Lot. (See Chapter 12 of the Survey and Plan Practice Manual).

Even though Crown Grants are no longer created and registered, search copies of all those previously created and registered are still available from LANDGATE. Since the introduction of the LAA, the details of the first freehold certificate of title is available on Smart Register on LANDGATEs mainframe.



2.3.6.4. SEARCHING CROWN GRANTS

The primary searching reference to locating the Crown Grant is the parcel identifier that relates to the original parcel of land (i.e. the first location or lot created immediately after being Crown land). The two main searching tools therefore are the Deeds Office Land Indices for land granted prior to 1875, and the mainframe Smart Register for all other grants, looking at the historical register field (although in effect this index has most Crown Grants listed as the historical register). If the original parcel identifier is unknown then a chain of title search backwards will reveal it eventually.

Prior to 1.7.1875 (the commencement of the TLA) Crown Grants issued by the Survey Office (from settlement of the Colony) and then the Crown Lands and Surveys Department as it was until it began in 1890), were issued to the Deeds Office for registration under the Registration of Deeds Act as Country Enrolments or Town Enrolments.

From 1.7.1875, Crown Grants issued to the Office of Titles were (because of the size and presentation of the Crown Grant forms used under the Land Regulations, until the commencement of the Land Act 1898 on 1.1.1899) replaced by a certificate of Title. Commonly such certificates were marked O.G (i.e. Original Grant) which is highly misleading. The Original Grant was in fact the Crown Grant as lodged by the Crown Lands and Surveys Department.

A Crown Grant recites full particulars, including rights and reservations. The Original Grant (O.G) is now stored within LANDGATE. Previously the O.G. issued to the Proprietor.

The O.G may be replaced by a Certificate of Title, which shows only a highly condensed version of the information on the Crown Grant.

Crown Grants and Certificates of Title are numbered in the same series. A Certificate of Title may be endorsed O.G in the top left hand corner and shows a

perforated Original at the top, BUT does no recite reservations etc (only relevant Certificates of Title prior to Volume 780)

O.G indicates that the actual Crown Grant information is stored elsewhere and the Original refers only to the document being the first C/T issued (only relevant to Certificates of Title prior to Volume 780)

If access to the Crown Grant full reservations is required, contact Land Records Management within LANDGATE to arrange access (only relevant to Certificates of Title prior to Volume 780)

After Volume 780, reservations are recited the Crown Grant. Note* When searching Crown Grants via IVS (Image System), there are three (3) options as follows:

Certificate of Title Country Grant Town Grant

If full particulars are required when searching, ensure that the Certificate of Title is compared with the Country Grant or Town Grant.



2.3.7. CROWN LAND RECORDS At the time the LAA was being proposed and a single registration system was contemplated, Crown land records were created to set up a recording mechanism for Crown land using the computerised searching facilities under the Torrens Register.

Crown land records were an administrative device, created in the same format as a certificate of title. A Crown land record was not indefeasible under the Torrens system. It was merely a paper record created for defined portions of Crown land administered under the provisions of the Land Act 1933.

Crown land records differed from a certificate of title in that the Crown was always shown as the registered proprietor and no duplicate Crown land records were ever created. Other interests in the Crown land were recorded and these interests included leases under the Land Act 1933, easements, reservations to a particular use, and if appropriate, the name of the Local Government or statutory body in which care, control and management of the land was vested.

A particular convenient use of the Crown land record was to show the leases to sporting and other bodies of areas of recreation reserves. Caveats and mortgages were also registered under the provisions of the Land Act 1933 against the Crown land record.

Under the LAA, all Crown land records were transitioned across to the LAA as Qualified certificates of Crown land title pursuant to item 44 of Schedule 2 of the LAA.

For historical purposes, search copies of all Crown land records ever issued are still available from LANDGATE.



2.3.8. FOUR DIFFERENT TYPES OF TITLES FOR CROWN LAND With the implementation of a single registration system under the LAA, the Torrens Register was expanded to include a Register for Crown land, being a register of land tenure and interests in Crown land.

Crown titles can now be created for each allocated parcel of Crown land with a land description (being a lot on a deposited plan or a site on an internal interest plan which is not necessarily a survey plan), and will be issued in the name of the State of Western Australia.

Unlike the Torrens system for freehold land, no duplicate Crown titles will be issued. All land the subject of a Crown title is ultimately held by the State of Western Australia, and is not owned by any other person, unlike the ownership of freehold land.

Only the Minister for Lands, or a person delegated by the Minister may apply to the Registrar for the creation and registration of a certificate of title for Crown land under Part IIIB of the TLA (see section 81V of the TLA).

The Torrens Register for land administered by the Registrar of Titles under the TLA now includes a further 4 main types of titles for Crown land:

Certificates of Crown land title (CLT); Qualified certificates of Crown land title (QCLT); Subsidiary certificates of Crown land title (SCLT); and Qualified subsidiary certificates of Crown land title (QSCLT). A Crown title (which can be any of the above four types of titles for Crown land), like a freehold certificate of title, contains three schedules:

First Schedule The first schedule of a CLT and QCLT contains details of the primary interest holder and the tenure status of that parcel of Crown land. The types of endorsements in the first schedule include reserve details, management bodys and lessees details, where the lease has been issued on behalf of the State of Western Australia by the Minister for Lands under the LAA (also known as a State Lease).

The first schedule of a SCLT and QSCLT contains details of the internal interest holder and is linked to a head CLT or head QCLT. For further information on SCLTs and QSCLTs, see Paragraphs 2.3.8.3 and 2.3.8.4.

In contrast, the first schedule of a freehold certificate of title contains details of the registered proprietor of that land parcel. The registered proprietor of a Crown title is always the State of Western Australia. This is shown in the preamble of the title.

It should be noted that Crown titles have been incorporated into SmartRegister commencing July 2002. Crown titles will only refer to a lot on deposited plan. As with freehold titles in SmartRegister, the graphic for that land is no longer displayed on the Crown title and is available for searching either by obtaining a copy of the deposited plan or superseded Crown title.

2.3.8.1. CERTIFICATE OF CROWN LAND TITLE

The first type of title for Crown land is known as a certificate of Crown land title. A CLT, like a freehold certificate of title is, subject to section 68 of the TLA, conclusive evidence of the Crown interests, dealings and encumbrances registered against a defined parcel of Crown land. An example of a CLT is set out in Attachment 2.



SUBJECT TO SURVEY

NOT FOR ALIENATION PURPOSES

It is a Crown title, like a freehold certificate of title that, subject to section 68 of the TLA, guarantees that all Crown land interests and tenures relating to a defined parcel of Crown land that may or may not be surveyed, are shown on that title. Where that parcel of Crown land has not been surveyed, notification of that fact will be shown in the Third Schedule of the title with the following words:

Where Crown land is proposed to be transferred into the freehold under Section 74 or 75 of the LAA, it must be surveyed in accordance with the standards and guidelines set out in the Survey and Plan Practice Manual and approved by the WAPC.

A 5-year period of time (defined in the LAA as the Transitional Period) was inserted in the LAA to enable all dealings in relation to Crown land to be registered or recorded. The effect of the Transitional Period means that any person who has failed to register his interest or record his claim for that interest within the 5-year period of time will lose priority against a prior registered interest. Where there is a conflicting registered interest, that prior unregistered interest will be void. Failure to register that interest within the 5-year period will not automatically void that interest. That dealing will still be valid and enforceable and may still be registered at any time after that 5-year period subject to any prior registered interests.

Certificates of Crown land title will be created for each defined parcel of Crown land, and will be issued in the name of the State of Western Australia. Unlike the freehold system, no duplicate certificates of Crown land title will be issued, as all land the subject of a certificate of Crown land title is land ultimately held by the Crown, and is not owned by any other person, unlike the ownership of freehold land.

Copies of these certificates of Crown land title showing all registered dealings affecting a parcel of Crown land, like freehold certificates of title, will be readily available through the normal searching facilities at LANDGATE.

Any person with a registrable interest in a parcel of Crown land that is not already the subject of a CLT can make written request to the Minister for Lands via the Manager of the relevant Regional and Metro Services region, to have a certificate of Crown land title created and registered for that parcel.

As a general rule, before CLTs can be created for a parcel of Crown land, the interest holders (being all parties with an interest in the land, whether as lessor, lessee, sub-lessee, mortgagee etc) must produce the best evidence available to establish the validity of their respective interests. Essentially, this will require the production of the original executed and stamped documents evidencing the rights and interests claimed by the interest holders.

To enable the creation of a CLT, the Registrar of Titles requires all registrable interests in the land to be either registered or protected by a caveat. A statutory declaration is also required by all interest holders in the land to verify the interests claimed and to confirm the status of their interests.

Such a statutory declaration is required where:

the original stamped document executed before the commencement of the LAA cannot be produced; and



the interest holders have acknowledged, by way of statutory declarations, that they do not hold the original document and have not deposited the original stamped document with any other party as security by way of charge, lien or mortgage.

It should be noted that a duplicate copy (not being a photocopy) of the original document, which has been stamped and executed by all parties, may be accepted in the absence of an original PROVIDED THAT the duplicate document has been executed before 30 March 1998 (see section 81U of the TLA).

To accept a duplicate in lieu of an original supporting declarations by the parties to the documents are required stating their knowledge of the last known whereabouts of the original document, what searches and enquires have been made to locate it and that the original document has not been deposited with any bank, firm or person by way of security for any lien or loan or any other purpose. Once the duplicate copy of the original document has been lodged and registered, the duplicate document will be treated as if it were the original document.

All interests are then examined to ensure that there is a clear chain of title. Where the Registrar of Titles is satisfied that all registrable interests have been presented for registration or a caveat claiming those interests has been lodged, and there is no dispute in relation to the respective priorities of those interests or caveats, the Registrar of Titles may create and register a CLT. Only those interests, encumbrances and caveats that are still current will be endorsed on the CLT.

If the Registrar of Titles is

not completely satisfied that the Crown land has been clearly identified; or is aware of a dispute concerning the respective priorities of 2 or more interests in the

land;

the Registrar of Titles may either refuse the application to create and register a CLT, or refer the application to the Commissioner of Titles. Further detail on the process to validate or create CLTs is set out in Paragraph 2.3.14.

2.3.8.2. QUALIFIED CERTIFICATE OF CROWN LAND TITLE

This second type of Crown title, known as a Qualified certificate of Crown land title can be issued where all interests in relation to a parcel of Crown land have not been clearly identified.

Until all interests and other dealings affecting a parcel of Crown land are clearly identified and registered, and clear documentary evidence establishing a chain of title exists for all transactions relating to that parcel of Crown land, there will be no indefeasibility, State guarantee or priority as to the interests endorsed on such Crown titles.

QCLTs merely set up a register for interests and tenure lodged with the Registrar and registered under the Transfer of Land Act 1893. A QCLT does not guarantee all interest

crown land practice manual

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