Australian Capital Territory Numbered Acts

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LAND (PLANNING AND ENVIRONMENT) ACT - SECT 158

158. A proponent in relation to an assessment may apply to the Tribunal for review of—

        (a)     a decision of the Environment Minister under section 117 fixing the maximum price at which the proponent may sell a copy of a preliminary assessment; or

        (b)     a decision of the Environment Minister under section 125 fixing the maximum price at which the proponent may sell a copy of a draft environmental impact statement.

Division 1—Preliminary

Interpretation

159. (1) In this Part, unless the contrary intention appears—

“building and development provision”, in relation to a lease, means a provision of the lease that requires the lessee to carry out specified works on the land comprised in the lease or on any unleased Territory Land;
“lease” means—

        (a)     a lease granted under this Act;

        (b)     a lease granted under a repealed Act and continued in force by the Land (Planning and Environment) (Consequential Provisions) Act 1991 ; or

        (c)     a lease granted under the Unit Titles Act 1970 ;

but does not include a sublease;

“lessee” means the person who is the proprietor of a lease, whether or not he or she is the registered proprietor of the lease, and whether or not the lease was granted to him or her or the lease passed to him or her by assignment, transfer, devolution or operation of law;
“public carpark” means an area that is an off-street parking area within the meaning of the Motor Traffic Act 1936 and that is available for use by the public without the payment of money;
“public land” means land identified as public land in the Plan;
“public road” has the same meaning as in the Motor Traffic Act 1936 ;
“registered lease” means a lease registered in the Register Book kept under the Real Property Act 1925 ;
“registered proprietor”, in relation to a lease, means the person who is registered under the Real Property Act 1925 as proprietor of the lease;
“repealed Act” means an Act repealed by the Land (Planning and Environment) (Consequential Provisions) Act 1991 ;
“residential lease” means a lease of Territory Land granted for residential purposes only;
“sublease” means a sublease of a parcel of land, or part of a parcel of land, subject to a lease, or of a building, or a part of a building, on a parcel of land subject to a lease;
“sublessee” means the person who is the proprietor of a sublease, whether the sublease was granted to him or her or the sublease has passed to him or her by assignment, transfer, devolution or operation of law;
“Territory Land” has the same meaning as in the Australian Capital Territory (Planning and Land Management) Act 1988 of the Commonwealth.

(2) A reference in this Part to a provision of a lease shall be read as including a reference to a provision to which the lease is subject.

(3) A reference in this Part to the variation of a lease shall be read as including a reference to the surrender of a lease and the grant of a new lease to the same lessee over land—

        (a)     that is the whole or part of the land comprised in the surrendered lease; and

        (b)     that is not defined land within the meaning of Subdivision D of Division 3 of Part II;

subject to provisions that differ from those of the surrendered lease.

(4) A reference in this Part to the market value of a lease is a reference to the amount that could be expected to be paid for the lease on the open market if it were sold by a willing but not anxious seller to a willing but not anxious buyer.

Application

160. (1) This Part applies to all grants of estates in Territory Land made by the Executive on behalf of the Commonwealth.

(2) This Part does not apply to a transfer by the Territory of a registered lease of which the Territory is the registered proprietor.

Division 2—Leases

Granting of leases

161. (1) The Executive may, on behalf of the Commonwealth, grant a lease of Territory Land by—

        (a)     auctioning the lease;

        (b)     calling tenders for the grant of the lease;

        (c)     conducting a ballot for the right to the grant of the lease; or

        (d)     a direct grant to an applicant for a lease.

(2) A lease granted under this section may include provisions—

        (a)     requiring the lessee to develop the land comprised in the lease, or any unleased Territory Land, in a specified way; or

        (b)     requiring the lessee to give security for the performance of any of his or her obligations under the lease.

(3) A lease granted under paragraph (1) (d) shall be granted subject to such provisions as are agreed between the Executive and the applicant for the lease.

(4) The Executive shall not grant a lease of Territory Land under paragraph (1) (d) otherwise than in accordance with criteria specified pursuant to subsection (5).

(5) The Executive may, for the purposes of this section, by instrument—

        (a)     specify criteria for the granting of leases under paragraph (1) (d); or

        (b)     amend or revoke criteria so specified.

(6) An instrument under subsection (5) is a disallowable instrument for the purposes of section 10 of the Subordinate Laws Act 1989 .

(7) Subject to subsection (8), where the Executive grants a lease under paragraph (1) (d), it shall cause—

        (a)     a copy of the lease;

        (b)     a statement of the amount (if any) paid for the grant of the lease; and

        (c)     a copy of any agreement collateral to the lease;

to be laid before the Legislative Assembly within 5 sitting days after the day on which the lease is granted.

(8) Subsection (7) does not apply in relation to a lease granted under paragraph (1) (d) following the development of the land leased pursuant to a lease expressed to be granted for the purpose of enabling the lessee to develop the land comprised in the lease for subdivision and resale.

(9) The validity of a lease to which subsection (7) applies shall not be taken to be affected by a failure to comply with that subsection.

Fees for granting leases

162. (1) A lease under section 161 shall only be granted on payment of the determined fee.

(2) Different fees may be determined in respect of different classes of leases granted under section 161.

Leases to community organisations

163. (1) In this section—

“community organisation” means a body corporate that—

        (a)     has as its principal purpose the provision of a service, or a form of assistance, to persons living or working in the Territory;

        (b)     is not carried on for the pecuniary profit or gain of its members; and

        (c)     does not hold a Club Licence under the Liquor Act 1975 .

(2) The Executive may, on behalf of the Commonwealth, grant a lease of Territory Land to a community organisation without charge or for a charge that is less than the market value of the lease.

(3) The Executive shall not grant a lease under this section otherwise than in accordance with criteria for the granting of leases to community organisations specified pursuant to subsection (4).

(4) The Executive may, for the purposes of this section, by instrument—

        (a)     specify criteria for the granting of leases to community organisations; or

        (b)     amend or revoke criteria so specified.

(5) An instrument under subsection (4) is a disallowable instrument for the purposes of section 10 of the Subordinate Laws Act 1989 .

(6) Where the Executive grants a lease under this section, it shall cause—

        (a)     a copy of the lease;

        (b)     a statement of the amount (if any) paid for the grant of the lease; and

        (c)     a copy of any agreement collateral to the lease;

to be laid before the Legislative Assembly within 5 sitting days after the day on which the lease is granted.

(7) The validity of a lease granted under this section is not to be taken to be affected by a failure to comply with subsection (6).

(8) A community organisation shall not transfer a lease granted under this section and a purported transfer of such a lease shall be of no effect.

(9) Nothing in this section shall be taken to derogate from the power of the Executive to grant a lease of Territory Land to a community organisation otherwise than under this section.

Special leases

164. (1) The Executive may, on behalf of the Commonwealth, grant a lease of Territory Land for a charge that is less than the market value of the lease where the Executive is satisfied that it is desirable and in the public interest to do so in order to facilitate—

        (a)     the economic development of the Territory; or

        (b)     the development of business in the Territory.

(2) The Executive shall not grant a lease of Territory Land under this section otherwise than in accordance with criteria for the granting of special leases specified pursuant to subsection (3).

(3) The Executive may, for the purposes of this section, by instrument—

        (a)     specify criteria for the granting of special leases; or

        (b)     amend or revoke criteria so specified.

(4) An instrument under subsection (3) is a disallowable instrument for the purposes of section 10 of the Subordinate Laws Act 1989.

(5) Where the Executive grants a lease under this section, it shall cause—

        (a)     a copy of the lease;

        (b)     a statement of the amount (if any) paid for the grant of the lease; and

        (c)     a copy of any agreement collateral to the lease;

to be laid before the Legislative Assembly within 5 sitting days after the day on which the lease is granted.

(6) The validity of a lease granted under this section is not to be taken to be affected by a failure to comply with subsection (5).

(7) The lessee under a lease to which this section applies shall not, for a period of 5 years after the day on which the lease is granted—

        (a)     assign or transfer the lease;

        (b)     sublet the land comprised in the lease or any part of it; or

        (c)     part with possession of the land comprised in the lease or any part of it;

without having obtained the written consent of the Executive and any assignment, transfer, sublease, agreement or arrangement made or entered into in contravention of this subsection shall be of no effect.

(8) The Executive shall not consent to the lessee under a lease to which this section applies—

        (a)     assigning or transferring the lease;

        (b)     subletting the land comprised in the lease or any part of it; or

        (c)     parting with possession of the land comprised in the lease or any part of it;

unless it is satisfied that the person to whom it is proposed that the lease should be assigned or transferred, the person to whom it is proposed that a sublease should be granted or the person to whom it is proposed that possession of the land should be given, as the case may be, is a person who satisfies the criteria of eligibility specified pursuant to subsection (2) in respect of the class of leases in which the lease is included.

Authority to consider proposed leases

165. (1) In this section—

“Designated Area” has the same meaning as in the Australian Capital Territory (Planning and Land Management) Act 1988 of the Commonwealth;
“lease” includes a licence to occupy or use an area of unleased Territory Land for a period exceeding 3 months.

(2) Where the Executive proposes to grant a lease of Territory Land on behalf of the Commonwealth, not being land in a Designated Area, it shall give the Authority notice in writing of its intention to do so and in the notice specify—

        (a)     the boundaries of the land over which it is proposed that the lease should be granted;

        (b)     the term of the lease;

        (c)     the purposes for which the lease is to be granted; and

        (d)     the provisions to be included in the lease and any agreement collateral to the lease.

(3) On receiving a notice under subsection (2), the Authority shall, within the prescribed period, advise the Executive by instrument whether it considers that the lease specified in the notice—

        (a)     may appropriately be granted as proposed in the notice under subsection (2);

        (b)     may appropriately be granted subject to compliance with conditions specified in the instrument; or

        (c)     could not appropriately be granted.

(4) In determining the advice it is to give to the Executive under subsection (3) in relation to a proposed lease, the Authority shall consider each of the following matters, and only the following matters:

        (a)     whether the lease would be consistent with the planning principles and policies set out in the Plan;

        (b)     whether the lease would be in accordance with any directions of the Executive in force under section 37;

        (c)     any matters prescribed by the Plan for the purpose of this subsection;

        (d)     the appropriateness of the timing of the grant of the lease.

(5) The conditions that the Authority may specify pursuant to paragraph (3) (b) in relation to a proposed lease are conditions of the following kinds only:

        (a)     a condition specifying the land over which the lease may be granted;

        (b)     a condition specifying the term, or the maximum term, for which the lease may be granted;

        (c)     a condition specifying the purposes for which the land to be leased may be used under the lease;

        (d)     a condition specifying provisions to be included in the lease or an agreement collateral to the lease.

(6) Where the Authority gives the Executive advice of the kind referred to in paragraph (3) (b) or (c), it shall—

        (a)     in the case of advice of the kind referred to in paragraph (3) (b)—specify in the instrument under subsection (3) its reasons for considering that the conditions specified in the instrument should be imposed; or

        (b)     in the case of advice of the kind referred to in paragraph (3) (c)—specify in the instrument under subsection (3) its reasons for considering that the proposed lease could not appropriately be granted.

(7) Where the Authority has advised the Executive pursuant to subsection (3) that a proposed lease may appropriately be granted, the Executive may—

        (a)     if the Authority has stated that the lease may appropriately be granted as proposed in the notice under subsection (2)—grant the lease as proposed in that notice; or

        (b)     if the Authority has stated that the lease may appropriately be granted subject to conditions specified in the instrument under subsection (3)—grant the lease subject to compliance with those conditions.

(8) Where the Executive has given the Authority a notice under subsection (2) in relation to a proposed lease and the Authority has not, within the time prescribed for the purposes of subsection (3), advised the Executive pursuant to that subsection whether it considers that the proposed lease may appropriately be granted, the Executive may grant the lease as proposed in the notice under subsection (2).

(9) Where the Authority has advised the Executive pursuant to subsection (3) that a lease specified in a notice under subsection (2) may appropriately be granted subject to compliance with specified conditions, the Executive may grant the lease without complying with 1 or more of those conditions.

(10) The Executive may grant a lease specified in a notice under subsection (2) notwithstanding that the Authority has, pursuant to subsection (3), advised the Executive that it considers that the lease could not appropriately be granted.

(11) Where the Executive grants a lease in reliance upon its powers under subsection (10), it shall cause—

        (a)     a copy of the lease;

        (b)     a statement of the amount (if any) paid for the grant of the lease; and

        (c)     a copy of any agreement collateral to the lease;

to be laid before the Legislative Assembly within 5 sitting days after the date on which the lease is granted.

(12) Notwithstanding anything contained in this Act or any other Act, the power to grant a lease in accordance with subsection (9) or (10) may only be exercised by—

        (a)     the Executive; or

        (b)     a Minister acting on behalf of the Executive.

Inquiries and Assessments in relation to the granting of leases

166. (1) Where it is proposed that a lease of Territory Land be granted, the Executive may—

        (a)     establish a panel to conduct an Inquiry into whether the proposed lease should be granted; or

        (b)     direct that an Assessment be made into the possible environmental impact of a decision to grant the lease.

(2) Where the Executive establishes a panel to conduct an Inquiry, or directs an Assessment to be made, pursuant to subsection (1), the Executive—

        (a)     shall not grant the proposed lease until—

              (i)     in a case where a panel is established to conduct an Inquiry—the panel has reported to the Executive and the Executive has considered the report; or

              (ii)     in a case where a direction has been given for an Assessment to be made—the Assessment has been completed and the Executive has considered the environment report or the environmental impact statement forming part of the Assessment; and

        (b)     shall review the provisions of the proposed lease taking into consideration the environment report, environmental impact statement or report of the panel established to conduct the Inquiry, as the case requires.

Eligibility for certain classes of leases

167. (1) The Executive may, by instrument—

        (a)     declare a specified class of leases to be leases to which this section applies;

        (b)     specify, in respect of a class of leases declared under paragraph (a) to be leases to which this section applies, criteria for determining whether a person is eligible to hold the land comprised in a lease included in that class; or

        (c)     amend or revoke a declaration under paragraph (a) or criteria specified under paragraph (b).

(2) An instrument under subsection (1) is a disallowable instrument for the purposes of section 10 of the Subordinate Laws Act 1989 .

(3) The Executive shall not grant a lease to which this section applies to a person who does not satisfy the criteria specified pursuant to paragraph (1) (b) in respect of the class of leases in which the lease is included.

(4) The validity of a lease to which this section applies is not to be taken to be affected by a failure to comply with subsection (3).

(5) The lessee under a lease to which this section applies shall not—

        (a)     assign or transfer the lease;

        (b)     sublet the land comprised in the lease or any part of it; or

        (c)     part with possession of the land comprised in the lease or any part of it;

without having obtained the written consent of the Executive and any assignment, transfer, sublease, agreement or arrangement made or entered into in contravention of this subsection shall be of no effect.

(6) The Executive shall not consent to the lessee under a lease to which this section applies—

        (a)     assigning or transferring the lease;

        (b)     subletting the land comprised in the lease or any part of it; or

        (c)     parting with possession of the land comprised in the lease or any part of it;

unless it is satisfied that the person to whom it is proposed that the lease should be assigned or transferred, the person to whom it is proposed that a sublease should be granted or the person to whom it is proposed that possession of the land should be given, as the case may be, is a person who satisfies the criteria of eligibility specified pursuant to paragraph (1) (b) in respect of the class of leases in which the lease is included.

Executive not bound to grant lease


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