Crown land reserves

The Land Administration Act 1997

The Land Administration Act 1997 (LAA) is Western Australia’s primary legislation dealing with the management of Crown land. The LAA is administered by the Minister for Lands (Minister), assisted by the Department of Planning, Lands and Heritage (DPLH).

Part 4 of the LAA provides for the creation, administration and management of reserves over Crown land/waters.

What is a reserve?

A reserve is a form of tenure of Crown land. It is not an interest in land.

Under section 41 of the LAA the Minister may set aside Crown land as reserve for a particular purpose in the public interest. Every such reservation has a land description and designated purpose registered on a Crown Land Title (CLT) and is graphically depicted on a plan or diagram held by Landgate.

Historically, some reserves have been created through gazettal by description and legislation that has now been superseded. Therefore, some reserves may not have a land description or a CLT.

Reserve tenure is usually applied to land that

(a)    holds intrinsic community value or is of high conservation value that should be preserved and maintained for the benefit of future generations;

(b)    for core business/service delivery needs of general sector State agencies and local governments.

Reserves are not usually granted for long-term economic development or for a commercial purpose or benefit.

Some examples include: Recreational activities (e.g. sporting ovals); Aboriginal uses; local community sporting clubs; foreshore reserves, national parks, conservation reserves, heritage reserves, community centres, Department of Fire Emergency facilities, sea rescue, state emergency services.

Classification

Classification of reserves

The Land Act 1933 was replaced by the LAA on 30 March 1998. It provided for Crown reserves to be classified as Class A, B or C. There is no provision in the LAA to create new Class B reserves. Under the LAA, there is now only one classification of reserves being Class A reserves. All other reserves are simply known as “reserves.” However, existing Class B reserves are continued by the LAA’s transitional provisions.

Class A has the greatest degree of protection. Amendments to Class A reserves will require advertising and may require tabling of the proposal in both Houses of Parliament to facilitate amendments. The Class A classification is used solely to protect areas of high conservation or high community value.

Aside from conservation reserves, the Minister has general powers to deal with reserves which are not Class A or B and retains legal and policy oversight of the use of reserves generally.

Changes to Class A reserves

Where the Minister proposes to cancel the reserve or its Class A classification, to change its purpose, to excise land for a road, or to reduce the area by more than the five per cent or one hectare (whichever is the less) permitted in specified circumstances, the Minister must:

1. advertise this intention in a State newspaper and consider all comments; and
2. no sooner than 30 days later, table the proposal in both Houses of Parliament with a briefing explaining the proposal.

Either House of Parliament then has 14 sitting days to move a notice of disallowance.

In some instances, the proposed changes may require an Act of Parliament

Management

Management of reserves

Once created, a reserve is usually placed under the care, control and management of a management body, typically a state government department, local government or incorporated community group by way of a Management Order registered on the relevant CLT(s). A Management Order under the LAA provides for management of the reserve for the designated purpose but does not convey ownership of the land nor is it in an interest in the land. However, a management body may restrict entry onto the land in a reserve.

The Governor may appoint persons to form Boards to control and manage land that is reserved pursuant to the Parks and Reserves Act 1895.

Management Order conditions may range from specific land management restrictions to granting leasing powers. Ministerial consent is generally required for the grant of interests over reserves such as leases and mortgages.

Vesting Orders under the Land Act 1933 automatically became Management Orders under the LAA.

Management Orders may be issued subject to prior interests existing in the land. The Minister may only revoke Management Orders:

• with the agreement of the management body
• where there has been mismanagement of the reserve
• when it is in the public interest
• when the management body no longer exists

With the Minister’s approval, interests granted under a Management Order may survive revocation, with agreed variations.

At times, a reserve may have been created but has not been placed under the care, control and management of a management body. Such reserves are known as unmanaged reserves and remain under the administration of the Minister for Lands.

The Minister may grant leases for any term or condition over unmanaged reserves either for a purpose which is in accordance with the reserve purpose or for a purpose which is different to the reserve purpose but which is compatible with or ancillary to the current use or intended future use of that Crown land for the purpose or purposes of the unmanaged reserve.

Management plans

The Minister may require a management body to prepare and submit for approval a suitable management plan in relation to reserved land. Such a plan should consider and detail any conservation, environmental or heritage issues relevant to the development, management or use of the reserve.

Management under other statutes

A number of statutes convey special management powers to body corporates created by Acts, relating to Crown land or reserves created under the LAA. Often those powers will include an ability to lease for particular purposes, but ownership is not conveyed and powers of disposal in fee simple are not included. The operation of these Acts is similar to the Management Order process under Part 4 of the LAA.

Examples include the Government Railways Act 1904, Marine and Harbours Act 1981, Port Authorities Act 1999, Aboriginal Affairs Planning Authority Act 1972, the Parks and Reserves Act 1895 and various tertiary education institution Acts.

Conservation estate

Conservation estate

The Conservation and Land Management Act 1984 (CALM Act) is the State’s legislation dealing with the management of national parks, State forests and the conservation estate generally. Aside from State forests and marine reserves, the CALM Act relies upon the creation of reserves under the LAA, in the first instance, with the land then coming under the special provisions. State forests and marine nature reserves, marine parks and marine management areas, are exceptions to this process; they are created under the CALM Act over Crown land or Western Australian waters. State forests and the other categories of terrestrial reserves covered by the CALM Act are vested in the Conservation Commission, while marine reserves are vested in the Marine Authority.

Changes to conservation estate reserves

With the consent of the Minister for Environment, the Minister may, by order, amend conservation parks, national parks and Class A nature reserves for the same reasons outlined above for Class A reserves.

The Minister must advertise and table in Parliament proposals to excise land from such reserves for a road.

However, an Act of Parliament is required in relation to changes for such reserves where it is proposed to:

• cancel the reserve or change its purpose;
• reduce the reserve’s area by more than the five per cent or one hectare (whichever is the less) permitted in specified circumstances; or
• excise land for other purposes.

The LAA is restricted in its operations in relation to CALM Act tenures.

Timeframes

The duration of each Crown land action varies considerably from case to case. Some delaying factors include:

• consultation with relevant stakeholders including government agencies and management bodies
• compliance with statutory processes
• survey requirements
• changes to existing tenures
• compliance with legislation
• statutory requirements of the Commonwealth Native Title Act 1993.

Further information

For further information, please contact the Department on +61 8 6552 4400 or email proposals@dplh.wa.gov.au