The 2018-2019 Victorian Budget: Does your project involve sale, acquisition or leasing of land?

In response to the demands placed on existing State services and public infrastructure by strong population growth, the Victorian Budget announced allocation of funding for several substantial infrastructure projects.  Funded projects have been identified in diverse fields, such as: road and rail; building and expanding hospitals; purchasing land for new schools; and delivering new or upgraded facilities for emergency services staff and volunteers.  In addition, the Federal budget announced funding for the State's Airport Rail Link and North East Link freeway infrastructure projects.  In order to deliver these infrastructure projects, sponsoring agencies will need to acquire, sell, lease and access land, and in doing so, navigate legislative and policy frameworks regulating Government dealings with land.

The Victorian Government Land Transactions Policy and Guidelines April 2016 establishes strict requirements for Victorian Government agencies when dealing with the sale, acquisition and leasing of land.  Key features of the policy include that in the absence of an exemption, agencies:

• must obtain the Victorian Government Land Monitor's approval for any sale or purchase of an interest in land with a value of $750,000 or more before an offer is made;
• must not grant an interest in land at a price less than the current market rent or sale value, as determined by the Valuer-General Victoria (VGV);
• must not purchase an interest in land at a price which is greater than the current market rent or sale value, as determined by the VGV;
• must not sell any land without following a public process such as an auction, tender or expression of interest campaign;
• prior to offering land for sale by a public process, have in place the most appropriate zoning which enables the land to be used or developed in accordance with its highest and best use; 
• must not grant a lease of land which contains an option to purchase; and
• must have regard to the existence of native title rights and interests in the land.

Where a lease over Crown land is proposed, an agency must consider: whether the land is reserved for a public purpose; who the appointed land manager is; the criteria for approving the permitted use and agreement terms as set out in legislation; and the maximum tenure lengths permissible.  These are typically set at 21 years for leases and 10 years for licences (each including options).  This analysis will help to identify the Government entity with authority to grant the lease and any salient legislative restrictions such as maximum terms and limitations on permitted uses.  The Leasing Policy for Crown Land in Victoria 2010 administered by DELWP ensures a consistent approach to leasing of Crown land by requiring:

• use of DELWP's standard form leasing documentation; and
• all lease proposals by a land manager other than the Minister for Energy Environment and Climate Change to have the Approval in Principle of the Minister and subsequent terms and conditions approval.

The VGSO Property and Native Title Teams have extensive experience in Government property transactions and are well placed to assist agencies in navigating compliance with legislation and policies applicable to sale, acquisition and leasing of land.

Anthony Leggiero
Managing Principal Solicitor
9947 1430

Mary Scalzo
Managing Principal Solicitor
9947 1419

Easement - Do we have one?

The State and its agencies own a significant amount of freehold land across Victoria, in addition to the extensive Crown Lands Estate.  The creation of easements to either benefit or encumber that freehold land is often necessary to realise objectives to develop either State owned land or privately owned surrounding land and ensure the efficient provision of necessary infrastructure and facilities.  For example, the State may require a utility service provider to install pipes, fittings, and drains under State owned land to provide a water supply to a proposed new school building.  Alternatively, a developer of land that adjoins State owned land may require a right to connect to drainage or sewerage pipes under the State owned land before the local Council will grant them a permit to construct units on their land and certify the necessary plan of subdivision.

Do we need an easement?

Before deciding on creating an easement, it is important for the department or agency to step back and ask a few questions.  For example, you should consider:

1. Will a right to use the land in common with others suffice or is there a need for exclusive possession?
2. Is the right to use the land to be enjoyed by whomever is the owner of the benefiting land at any given point in time or is the use right intended to be personal to the State or an individual
3. Are the following (4) essential characteristics of an easement present?[1]

• There must be a dominant and a servient tenement - The land that benefits from the easement is the dominant tenement and the land subjected to the easement is the servient tenement.
• The right must accommodate the dominant tenement - The right claimed as an easement must be reasonably necessary for the better enjoyment of the dominant tenement and the two parcels of land affected by the easement arrangement must be contiguous.
• Both tenements must be owned or occupied by different persons.
• The right must be of a kind capable of forming the subject matter of a grant - The right must be sufficiently precise and certain and not confer a right to exclusive possession.

The answers to these questions will assist with determining whether an easement is the appropriate form of tenure.

Easements create non-possessory, proprietary interests in land.  An easement will be the appropriate form of tenure if the (3) questions above are answered in the affirmative.
If exclusive possession is needed, a lease will be the appropriate instrument, not an easement.  If a mere personal right to use land for a defined time period is required, a contractual licence will be needed rather than an easement.

How should we create the easement?

Statute

A certified plan can be lodged at Land Use Victoria for the purposes of creating an easement, upon the Registrar of Titles' registration of that plan.  A planning permit will normally need to be obtained under the relevant planning scheme and lodged with the certified plan, registration application, the title to the burdened land and other necessary documentation [2].
 
In the context of a subdivision, easements necessary for the reasonable enjoyment of the property may be created by being shown on the certified and registered plan of subdivision.[3] These include easements of way, drainage, party wall, supply of water, gas, electricity, sewerage, telephone and other services either through, over or under lands.

The scope of the rights granted to the beneficiaries of these easements is determined by the common law.  Where more bespoke or specific rights are required, an express grant will be needed as outlined below.

Express Grant

Creation of an easement by express grant can be done by deed or using Land Use Victoria's approved form.

While existing equitable easements are protected by law in Victoria in the sale scenario, formal registration of an easement is nevertheless recommended in the interests of clarity and certainty.  Registration may also save an easement which might otherwise be regarded as abandoned through extended non use.

Doctrine of the lost modern grant

The common law doctrine of lost modern grant will apply to create easements over land in Victoria where there is proof that a right in the nature of an easement has been used openly and continuously for at least 20 years, without objection by the owner of the burdened land.

The doctrine of the lost modern grant does not operate over Crown land.

Wrongful interference with or obstruction of an easement constitutes the tort of nuisance and, among other things, gives the dominant owner a right to obtain damages and/or an injunction.

As Property law experts within Government, the VGSO Property Team is well placed to assist you with land use arrangements and other property issues.  If you need further advice in relation to easements, please contact:

Jennifer McLean
Senior Solicitor
9947 1429
jennifer.mclean@vgso.vic.gov.au

Elizabeth Wortley
Senior Solicitor
9947 1433
elizabeth.wortley@vgso.vic.gov.au

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[1] These (4) characteristics are not a requirement for statutory easements in gross conferred upon various government or other bodies that provide essential public services, such as gas, power and water supplies.

[2] Subdivision Act 1988 ss 23 and 24

[3] Transfer of Land Act 1958 s98

Its raining cats and dogs!

What is the issue?

A recent decision of the Court of Appeal identifies seven factors to be considered and assessed in determining whether an overflow of water onto land is reasonable.[1]  These factors may have relevance to statutory agencies, Departments, Ministers and authorities responsible for public land or public infrastructure in particular, at times of heavy rainfall.

What was decided?

The Court of Appeal in Hazelwood Power Partnership v Latrobe City Council[2] held that the Morwell Main Drain was not a public drain for the purposes of the Water Act 1989.  Following that conclusion, the Court of Appeal considered whether the flow of water from the Morwell Industrial Estate and from the township of Morwell into the Morwell Main Drain was unreasonable.

Historically, the test of lawfulness for flow of water related to whether the landowner was uphill or downhill.  Called the 'free flow principle', it was considered that an owner of lower land was obliged to receive all flows of surface water onto his or her land that occurred naturally from the higher land.  The Water Act 1989 replaced the 'free flow principle' with a 'reasonableness' test.  That is, the question is no longer whether a flow of water is 'natural' but whether it is 'reasonable'.

The Court of Appeal agreed with the trial Judge's finding that the flow onto the Hazelwood land of waters generated in substantial part by the municipal drains on higher ground was reasonable.  The seven key factors considered in concluding that the flow of water was 'reasonable' were:

1. the contours of the land;
2. the use of the lands concerned and the lands in the vicinity;
3. the limited sense in which the water flow complained of from the Council drains could be said to be something other than a natural flow (ie, the 'free flow' principle);
4. the purpose for which and degree of care with which the Morwell Main Drain was originally constructed by the SECV in 1949;
5. there was no evidence of a lack of appropriate regard to the cumulative impact of the subsequent drainage works which occurred over time;
6. the fact that all drainage works were assumed to have appropriate statutory authority;
7. the fact of prior consent or acquiescence to the flows of water for more than 60 years, since the Morwell Main Drain was first constructed by the SECV for the purpose of diverting flows of storm and rain water run-off from entering the open cut mine. 

The Court of Appeal noted that the flow of water carries an ongoing risk of serious damage to the Hazelwood land and the northern batters in particular.  However in this case, the flow was considered to be reasonable.

What does it mean for me?

The Court of Appeal has provided decision-makers (and those who advise them) guidance in assessing the question of reasonableness of flow of water from public land or infrastructure into private drains or onto privately held land, identifying seven relevant considerations.

Alison O'Brien
Acting Victorian Government Solicitor

Eliza Bergin
Principal Solicitor

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[1] Hazelwood Power Partnership v Latrobe City Council [2015] VSCA 129 (Warren CJ, Osborn and Beach JJ).  See further, section 20 of the Water Act 1989

[2] [2015] VSCA 129

Foreign Resident Capital Gains Withholding Tax

Sales of certain taxable Australian property made after 1 July 2016 are subject to a new withholding regime introduced by the Tax and Superannuation Laws Amendment (2015 Measures No 6) Act 2016 (Cth).  Under this regime, purchasers are required to withhold 10 percent of the purchase price on all acquisitions of certain taxable Australian property and remit it to the Australian Tax Office (ATO) unless the vendor provides a clearance certificate.

This measure has been introduced to improve compliance with capital gains tax rules by foreign residents, but will have widespread implications for Australian residents involved in property transactions.

When does the measure apply?

The regime applies to contracts entered into after 1 July 2016 by which the purchaser acquires certain taxable Australian real property, including:

• Real property in Australia, including land, buildings, residential and commercial property;
• Lease premiums paid for the grant of a lease over real property in Australia;
• Mining, quarrying or prospecting rights;
• Company title interests; and
• Options or rights to acquire such property or such an interest.

Certain transactions are excluded, including real property interests of less than $2 million, transactions listed on an approved stock exchange, or where the vendor is under external administration or in bankruptcy.

What does this mean for purchasers of property with a market value of $2 million or more?

If the purchaser receives a valid clearance certificate from the vendor, withholding tax is not to be withheld from the transaction and the purchaser can rely on the certificate without making further enquiries.

If the purchaser is not provided with a valid clearance certificate before settlement, the purchaser must withhold 10 per cent of the purchase price and pay it to the ATO on or before the day the purchaser becomes the owner of the asset.  A short grace period applies before interest begins accruing.
Prior to settlement, all purchasers involved in the sale must complete an online Purchaser Payment Notification form, including the details of the vendors and the relevant asset. Once the form is processed, each purchaser will receive a payment reference number, payment slip and barcode.  These are used when making the payment to the ATO via electronic transfer, in person at Australia Post or mailed with a cheque.
There are significant penalties for failing to withhold the required amount, and administrative penalties may also apply.

What does this mean for vendors?

Australian resident vendors of relevant real property will need to apply for a clearance certificate and provide this to the purchaser before settlement to ensure no funds are withheld from the sale proceeds.

Vendors can apply for a clearance certificate at any time via the ATO's online application form.  Where the names of the registered proprietor and the taxpayer are consistent a certificate should be issued automatically within days.  Vendors should apply as early as practicable and check for consistency between ownership and tax records to avoid delays in the process.

A clearance certificate is valid for 12 months from the date of issue and can be used for multiple transactions, provided it is valid at the time the certificate is given to the purchaser.  If there are multiple vendors, each vendor will need to supply a clearance certificate to the purchaser.
Vendors will only receive credit for the tax withheld if the purchaser pays the relevant amount to the ATO.  Vendors should therefore ensure that appropriate contractual mechanisms are in place to cover these new obligations.

Significance to clients

This measure will need to be considered for every transaction involving Australian real property or any entity whose underlying value is principally derived from Australian real property.  The regime has broad application and will impact on a significant number of transactions, including where vendors are in fact Australian residents for tax purposes.

The Law Council of Australia, the Law Institute of Victoria and the Law Society of New South Wales have raised concerns about this initiative in a submission to the Federal Government, specifically that it will generate 'uncertainty, delays and a significant administrative burden' for Australians who purchase real estate with a market value of $2 million or more.
We will keep you informed if the ATO  issues rulings which exempt Australian government departments from the need to:

• obtain clearance certificates when they are a vendor; or
• remit the withholding tax to the ATO when they are a purchaser.

You can find out more on the ATO website.If you would like to discuss the impact on your department or agency, please contact:

Anthony Leggiero
Managing Principal Solicitor
03 9947 1430

The Victorian Government Land Transactions Policy and Guidelines

The Victorian Government has recently released its new Land Transactions Policy and Guidelines (Policy and Guidelines).

The Policy sets out what is required of Victorian Government agencies when they buy, sell or lease land. It also sets out what is required when agencies provide compensation under the Land Acquisition and Compensation Act 1986 and Part 5 of the Planning and Environment Act 1987.

The Guidelines provide information and guidance to assist agencies to comply with the Policy's requirements.

The Policy's requirements apply to:

• Victorian Government departments;
• public statutory authorities;
• legal entities established under State legislation for a purpose of the State (including those independent of government control);
• companies in which the State has an interest; and
• organisations, other than councils, which require statutory authorisation and/or ministerial approval, especially where public funds are involved in a land transaction.

Background

The Policy and Guidelines replace the Victorian Government's Policy and Instructions for the purchase, compulsory acquisition and sale of land (Instructions), which were adopted by then-Minister for Planning, the Hon John Thwaites MP, in August 2000.

The Instructions were intended to ensure that Victorian Government agencies adopt 'a consistent best-practice approach to their property transactions.'

Introduction to the Policy

The core elements of the Policy are consistent with the old Instructions. Agencies generally must not sell any land at a price less than its current market value, or buy any land at a price greater than its current market value. For this purpose, agencies must obtain valuations from the Victorian Valuer-General (VGV). Agencies also require the approval of the Victorian Government Land Monitor (VGLM) for any transaction (or group of related transactions) where the value of that transaction is $750,000 or more. There are a range of procedural requirements for the sale of land. Agencies generally may only sell land through a public process, and must provide clear information to prospective purchasers as to potential uses to which the land may be put.

Key differences from the old Instructions

The Policy and Guidelines introduce some important changes, and provide greater clarity or renewed emphasis about particular matters.

First, the Policy now regulates leases. Agencies may only grant or acquire leases or other interests in land at market rental value or better, as determined by the VGV. An agency also must not grant a lease of land which contains an option to purchase, unless the lease is granted to another government agency. However, the Guidelines exempt significant categories of leases (at section 10.2). The Policy also does not apply to licences.

Secondly, the Policy places clearer assurance obligations on agencies to ensure that all transactions are conducted to achieve accountability and transparency. In relation to accountability, the Guidelines state that an agency must ensure that:

• it has the legislative power to undertake the land transaction;
• it has obtained all necessary approvals to proceed with the transaction;
• appropriate delegation is in place where it is proposed an authorised officer of the agency approve and execute the transaction; and
• roles, responsibilities, authority and accountability of agency officers involved in the transaction are clearly articulated and well understood.

In relation to transparency, land transactions must be supported by processes that provide evidence of transparency of actions, equity in dealings, confidentiality, probity assurance and management of conflicts of interest.

Third, the Policy and Guidelines provide more detailed guidance on the requirement for agencies to conduct an appropriate level of due diligence. Prior to the disposal, acquisition or lease of land, agencies must conduct an appropriate level of due diligence to ensure they are fully informed of the status and attributes of the land. The depth of due diligence required will vary from transaction to transaction, but the Guidelines cover the following areas:

• legal (specifically, ownership of and authority to deal with the land, and any encumbrances on the land);
• public land values (in respect of Crown land);
• survey;
• planning;
• contamination and pollution;
• cultural heritage; and
• Native Title and Traditional Owner Rights.

The Guidelines provide a helpful due diligence checklist in Appendix 1, to assist agencies in becoming fully informed as to the status and attributes of the relevant land. Appendix 2 contains a VGLM checklist, to assist agencies in deciding when to seek approval or assistance from the VGLM.

Fourth, the Policy sets out clearly the circumstances in which it does not apply to particular transactions. The Policy provides a list of exempted transactions in section 2(d).

A full copy of the Policy is available on the website of the Department of Environment, Land, Water and Planning at http://www.dtpli.vic.gov.au/property-and-land-titles/valuation/government-valuations/government-land-monitor. We understand that the Department of Environment, Land, Water and Planning and the VGV will be promoting the Policy and Guidelines in coming months.

In the mean time, if you would like further advice on the new Policy and Guidelines, please contact:

Anthony Leggiero
Managing Principal Solicitor
Property Team
9947 1430
anthony.leggiero@vgso.vic.gov.au

Mark Egan
Acting Managing Principal Solicitor
Land Acquisition, Planning and Environment Team
8684 0489
mark.egan@vgso.vic.gov.au

Margaret Marotti
Managing Principal Solicitor
Property Team
9947 1410
margaret.marotti@vgso.vic.gov.au

Elizabeth Wortley
Senior Solicitor
Property Team
9947 1433
elizabeth.wortley@vgso.vic.gov.au

Native Title Round Up

With NAIDOC Week fresh in our minds, VGSO's Land, Planning and Environment Team thought it timely to provide a round up of recent developments in Native Title in Victoria.

1. ALRC recommends significant Native Title Act reforms 

The Australian Law Reform Commission's report on the Native Title Act 1993 includes recommendations that could create significant change in the jurisdiction if the Federal Government passes laws to implement them. The report, 'Connection to Country', was tabled in Parliament on 4 June 2015. Its key recommendations include amending the Act so that claimants would not have to prove that traditional laws and customs have been observed by each and every generation since sovereignty, nor that the society defined by the laws and customs has continued in existence since before sovereignty. The report also recommends that the Act explicitly acknowledge that traditional laws and customs may adapt, evolve or otherwise develop, and that native title rights be capable of including commercial trading rights. The Report contains 30 recommendations overall. The Native Title Act applies nationally.

2. Northern Victorian Claim Ends After 15 Years

The Wadi Wadi, Barapa Barapa, Wamba Wamba native title claim was struck out by the Federal Court on 15 June 2015. It was struck out on the basis that the claim had not progressed for some time, and in the present circumstances the three claimant groups were not in a position to move the claim forward in an efficient way. The Court noted that the strike out was procedural, and did not reflect on whether or not native title rights exist in the area. The groups are still able to file a new native title claim, or pursue rights and recognition under the Aboriginal Heritage Act 2006 or Traditional Owner Settlement Act 2010. The claim covered areas along the Murray River and extended south of Swan Hill.

3. Gunaikurnai People: New Wilson's Promontory claim registered

The Gunaikurnai People have made a new native title claim over Wilson's Promontory, which has now been entered on the National Register of Native Title Claims. This triggers certain procedural entitlements under the Native Title Act in respect of any projects over Crown land in the claim area that would affect native title (a 'future act'). The claim includes Corner Inlet, extends north inland towards Berry's Creek, and west to Point Smythe. It also includes islands off Wilson's Promontory. The Gunaikurnai People lodged the claim in the Federal Court on 9 December 2014. The Native Title Registrar's delegate was satisfied that the claim met criteria under the Native Title Act, and accepted the claim on the Register of Native Title Claims on 20 April 2015.

4. Victorian alternative to future act regime commences for Dja Dja Warrung

The Dja Dja Wurrung Clans Aboriginal Corporation had the first ever 'Land Use Activity Agreement' commence in late 2014. This triggers procedural entitlements and requirements under Part 4 of the Traditional Owner Settlement Act 2014 that particular persons need to follow when carrying out certain activities in the agreement area. The agreement covers a defined area in the vicinity of Bendigo, Central Victoria. Examples of activities range from clearing Crown land, to the grant of mineral tenements, to the sale of Crown land. Agencies involved with activities covered by the agreement in that area should familiarise themselves with the relevant requirements. The agreement is publicly available on the Department of Justice and Regulation website. 

For enquiries regarding Native Title and related matters, please contact:

Mary Scalzo

Managing Principal Solicitor

9947 1419

James Stephens

Principal Solicitor

9947 1422