Committees of Management

Diane Ridgway, Senior AssociateRosemary Southgate, Principal

Russell Kennedy

Tuesday 21 October 2014

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CROWN LAND (RESERVES) ACT 1978

• The CLRA provides for the reservation of Crown land for certain purposes and for the management of such reserved lands and for other purposes

• Section 4 of CLRA provides for land to be reserved for public purposes.

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Purpose of the CLRA

• Section 8 of CLRA

• Applies to land reserved under section 4 of CLRA

• Unless the reservation has been revoked, this land cannot be sold, leased or licensed except as authorised under the CLRA

• Purported sale, lease or licence of such land shall be void

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Restriction on sale, leasing or licensing of Crown land

• Appointed under Section 14 of CLRA.

• Can be made by either the Governor in Council under Section 14(1) or The Minister under section 14(2).

• An appointment under Section 14(1) or 14(2) of the CLRA may be subject to such conditions and shall be for such term as the Governor in Council or the Minister (as the case may be) determines.

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Appointment of committees of management

• Includes:

• Manage, improve, maintain and control land for reserved purposes;

• Carry out works and improvements on land;

• Take legal proceedings;

• Expend revenue or other moneys for the purposes in Section 15 or for other purposes as directed by Minister.

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Powers of Committees of Management – Section 15

• For purposes other than those for which land is reserved

• Applies to section 4 reserved land

• A Committee of Management may with the written approval of the Minister for any purpose approved by the Minister:

• Grant licences to enter and use any portion of the land or any building thereon for a period not exceeding 10 years

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Licences – Section 17B

• Enter into agreements to operate services and facilities on land for a period not exceeding 10 years, and

• Enter into tenancy agreements with persons to erect buildings and other structures for period not exceeding 10 years (subject to other requirements)

• Such licence or agreement shall be subject to such terms and conditions as the committee of management thinks fit and as are approved by the Minister

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Licences (cont)

• May be granted for term greater than 10 years in some circumstances - Section 17BAA

• Applies to land reserved under section 4.

• Despite section 17B(1), the committee of management may with the Minister’s approval in writing grant a licence under section 17B(1) if the proposed licensee is leasing:

• land adjacent to the land in respect of which the licence may be granted, and

• the adjacent land is under the management of the committee of management.

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Licences (cont)

• A licence granted under section 17BAA(1) may be for a period not exceeding whichever is the lesser of the following:

• 21 years

• the term of the lease granted in respect of the adjacent land

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Licences (cont)

• Leases for up to 21 years for other purposes – Section 17D

• The committee of management may with the Minister’s approval lease any part of the land for any purpose approved by the Minister for a term of not more than 21 years

• The Minister must approve the grant and purpose of the lease and be satisfied that the purpose for which the lease is granted is not detrimental to the purpose for which the land is reserved

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Leases

• Leases may contain options for renewal and overholding clauses – Section 17F

• A lease or a tenancy agreement under the CLRA may contain:

• Options for a further term or terms, and

• Provision for a lessee or tenant to remain in occupation for a period not exceeding 3 months from the expiry of the lease or tenancy agreement

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Leases (cont)

• Leasing policy for Crown Land in Victoria 2010

• Crown Land Leasing Guidelines Leasing Legislation

DEPI Crown Land LeasingPolicies

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• Consistency and transparency in leasing of Crown Land including the Ministerial approval process

Key Policy Issue

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• This is 2 step process

• You must obtain the Minister’s approval for:

• The proposed purpose/use; and

• The terms and conditions of the proposed documents.

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DEPI Crown Land LeasingPolicies – Ministerial approval

• Lease allocation processes – must be “fair, open and impartial”

• Competitive selection process for the leasing of Crown Land; unless there are “special circumstances” for direct negotiations with a proposed/sitting tenant

DEPI policy (cont’d)

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• Ministerial approval - purpose / use approval not obtained

• Delegate requiring separate licence and lease

• Ministerial approval to variation of lease

• Tenant claim that Council failed to comply with Crown Land leasing policy

Examples:

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• Liability of Committee of Management

• CLRA - a COM may insure against any legal liability to members of the public which might arise out of its performance as COM

• Note that the usual insurance under MAV, does not include insurance where Council is acting as CoM

• Clarity as to Insurance – State government VMIA insurance – public liability and professional indemnity

Other Issues

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QUESTIONS

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The information contained in this presentation is intended as general commentary and should not be regarded as legal advice. Should you require specific advice on the topics or areas discussed please contact the presenter directly.

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Disclaimer

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Diane RidgwaySenior Associate

Telephone: 9609 1536Email: dridgway@rk.com.au

Rosemary SouthgatePrincipal

Telephone: 9609 1637Email: rsoutgate@rk.com.au