Farming and agricultural leases confirmed as not part of the Retail Leases Act 2003 - what is covered and what will this mean to you?

The Minister for Small Business has made a determination that the Retail Leases Act 2003 does not apply to leases of farm premises for commercial farming or agricultural purposes.

What farming and agricultural leases are covered by this exclusion?

The Minister's determination confirms that a lease will not be caught by the Retail Leases Act 2003 if the lease is to use the premises wholly or predominantly for any of the following activities for commercial gain:

• Agricultural, pastoral, horticultural or apicultural activities
• Poultry farming, dairy farming, aquaculture, tree-farming or any business that consists of the cultivation of soils, the gathering of crops or rearing of livestock
• Grazing, including agistment
• Activities prescribed as a farming operation for the purpose of the Farm Debt Mediation Act 2011. At this time there are no farming operations prescribed under that Act.

This exclusion is likely not to extend to tenants who lease farm land to carry out retail sale of goods and services to the public, so that the lease cannot be said to be wholly or predominantly for one or more of the above activities.  For example, leased premises used for operating cheese stores or winery cellar doors open to the public in some circumstances.

The exclusion will also not extend to tenants who are not operating for commercial gain. E.g. Hobby farming; for charitable or public purposes.

This exclusion takes effect from 29 October 2019, and all leases entered into or renewed from that date.

What does this mean for you?

In negotiating a new farming or agricultural lease, landlords and tenants should consider whether the tenant's proposed operations on the land meet the criteria of the exclusion set out above.  Amendments can then be made to the proposal depending on whether the parties would like the Retail Leases Act 2003 to apply.

When preparing or re-negotiating the lease, the permitted use under the lease should be appropriately drafted to ensure the lease is not captured by the Retail Leases Act 2003. 

For advice and assistance, please contact:

Margaret Marotti
Managing Principal Solicitor
Ph: 9947 1410

Lauren Walley
Senior Solicitor
Ph: 9947 1454

What is in the Environment Protection Amendment Bill 2018?

The Environment Protection Amendment Bill 2018 (the Bill) is the second tranche of reforms following the Ministerial Advisory Committee's Final Report of the Independent Inquiry into the Environment Protection Authority (EPA)

The first major reform, the Environment Protection Act 2017 created a new statutory objective for the EPA and clarified its focus; to protect human health and the environment from the harmful impact of waste and pollution.

The Bill, if passed, will repeal and replace the current Environment Protection Act 1970 (the old Act), and create a prevention-focussed regulatory regime that gives the EPA a wider array sanctions and controls to manage high-risk activity.

The Bill has a forced commencement date of 1 December 2020, but is intended to take effect from 1 July 2020.

General environmental duty

The cornerstone of the Bill is a general environmental duty modelled after the duty on employers in the Occupational Health and Safety Act 2004.  It creates a positive obligation on duty-holders to proactively minimise the risk of harm to health and the environment from pollution and waste.  Both individuals and people conducting a business or undertaking (duty-holders) breach the duty if they fail to take steps that are reasonably practicable to minimise the risk of harm.

The type of actions required of duty-holders are laid out in the Bill and include:

• using and maintaining plant, equipment, processes and systems in a manner that minimises risks of harm to human health or the environment from pollution and waste; 
• using and maintaining adequate systems to ensure that if a risk of harm to human health or the environment from pollution or waste were to eventuate, its harmful effects would be minimised; and
• ensuring that all substances are handled, stored, used or transported in a manner that minimises risks of harm to human health or the environment from pollution and waste.

Those who breach the duty while conducting a business or an undertaking commit an indictable offence, and face a fine.

This duty will impact businesses, bodies and departments who engage in activities that pose a risk of harm to health or the environment from pollution and waste.

Permissions

There are three main tiers of permissions within the Bill: Licences (which are divided into operating, development and pilot project licences), permits and registrations.

In the old Act, licences and other types of approvals only applied to 'premises', whereas the Bill's permissions structure will apply to 'activities'.  The regulations will prescribe the types of activities that can be approved for each permission type.

The most easily granted permission, registrations, are meant for low to medium risk activity.  Permits are for less complex activities with a medium to high risk, and will include a standardised assessment process within the regulations.

The most onerous permission, in terms of application process and possible conditions is a licence.  It is designed for complex and high-risk activities and allows the EPA to customise conditions to suit the project.

Bodies that hold old permissions immediately prior to the Bill's commencement date will hold new permissions from the day the Bill commences.

Contaminated land

The Bill will create a duty to notify the EPA and an obligation to manage land contaminated by waste, a chemical substance or any other prescribed substance.  For the duty to apply, the contamination must be on or under the surface of the land, be present in a concentration above the background level and create a risk to human health or the environment.

If the land is contaminated, the Bill makes it clear that the person with management or control of the land is under the general duty to minimise risks of harm to human health and the environment from the contaminated land, which may include cleaning up the land.

The person with management or control must notify the EPA that the land is contaminated as soon as reasonably practicable.  Failure to do so results in a civil penalty.

Third party rights

The Bill will enable third parties to enforce breaches of the law and seek civil remedies where the EPA has not taken action.  The third party must be a person whose interests are affect by the contravention or non-compliance with the law, or anyone else with leave of the court where it is in the public interest.

If eligible, the third party has the same rights as the EPA to seek orders remedying or restraining breaches of the law, its regulations, or to licences and other permissions.

The right to enforce the law and seek remedies creates a new accountability mechanism on the EPA, where the regulator has failed or chose not to take action.

The Bill passed the Legislative Council on 9 August 2018.

For further information on the Bill and its implications, please contact:

Annette Jones
Principal Solicitor
8684 0444

Natasha Maugueret 

Managing Principal Solicitor 

8684 0223

This blog was produced with the assistance of Emma Buckley Lennox, Graduate Lawyer.

You can’t do that! Restricting use and sale of Government land

The Victorian Government Landholding Policy permits the sale or transfer of land to a government or community organisation for a public or community purpose where the terms of sale include a restriction on title reflecting that purpose which allows the State to control the future use and transfer of the land after disposal.[1]

The transfer of State owned or Crown land for public or community purposes will often be for nil consideration in recognition of the fact that the transferee will have obligations to make the land available for the intended purpose and to ensure that it is properly maintained for safe and enjoyable community use.

Once an agency has determined that it wishes to transfer land to an appropriate entity for public or community purposes, the next question is how best to ensure that the entity uses the land for the designated purposes and does not sell it to a third party to achieve a windfall gain or a profit.

Options for restricting use and sale of Government land

Restrictive covenants

As the Landholding Policy states, the restrictions are to be registered on the title to the land.  The traditional means of restricting use of land is via a restrictive covenant registered on the title of the land to be burdened by the covenant.  A restrictive covenant is an agreement between two landowners that one land owner will not do certain things on their land which could negatively affect the amenity of adjoining owners, for the benefit of the land held by the other owner. 

However, restrictive covenants are often not available to the State because they generally require that the State owns adjoining or reasonably contiguous land in freehold which will benefit from the restrictions set out in the covenant.  If these requirements are not met, the option will not be available.  The other challenge is that restrictive covenants can only include negative obligations (ie: an obligation not to do something on the land) and cannot oblige the burdened owner to spend money.

Statutory agreements

To address the shortcomings of restrictive covenants, various Acts provide for statutory agreements that can be entered into for public purposes and impose positive land use and development obligations on landowners.  Such agreements may be registered on the title to the land and can bind future transferees of the land, if transfer is permitted under the terms of the agreement.  Some of the more common statutory agreements are discussed below.

Section 173 of the Planning and Environment Act 1987 allows a responsible authority, commonly a local Council, to enter into an agreement with a land owner.  The agreement can provide for a restriction on the use or development of land, or any matter intended to achieve a planning objective in Victoria.  The responsible authority can enter into the agreement on anybody's behalf, and assumes responsibility for its enforcement once the agreement is recorded on the title to the land.

Where land is part of a designated project area, section 22 of the Project Development and Construction Management Act 1994 and section 49 of the Development Victoria Act 2003, allow the project authority under each Act to enter into an agreement with the transferee regarding use or development of the land.  In both cases, the agreements may be registered on title to the land as if they were an agreement under s 173 of the Planning and Environment Act 1987.  The key difference is that these agreements do not rely on the cooperation of the local Council to enforce the landowner's promises under the agreement and can instead by led and enforced by the project authority or facilitating agency.

Similarly, under s 69 of the Conservation, Forests and Lands Act 1987, the Secretary body corporate under that Act may enter into an agreement with a land owner relating to the management, use, development, preservation or conservation of land.  An agreement may also be entered into to give effect to the purposes of a law considered to be a relevant law.  The Act provides that any agreement will bind successors as long as the Secretary applies in writing to the Registrar of Titles to have it recorded on the title to the land.

A relatively recent example is the advent of the forestry and carbon management agreements as well as the carbon sequestration agreements.  These are provided for by a detailed scheme contained in the Climate Change Act 2017 (Vic).  The Act recognises proprietary rights in carbon sequestration and allows for the recording of various agreements between the landowner and the relevant person, which create binding obligations that run with the land and ensure the ongoing management of forestry, soil, and carbon sequestration rights.

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 restricting the future use and transfer of State owned land, please contact:

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

Eloise Connelly 
Senior Solicitor
9947 1493
eloise.connelly@vgso.vic.gov.au


__________________

[1] Department of Treasury and Finance, Victorian Government Landholding Policy and Guidelines (September 2017) ii.

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

Shifting expectations - implications for the EPA and government agencies

The Government recently released the Ministerial Advisory Committee's Final Report of the Independent Inquiry into the Environment Protection Authority (EPA).

The inquiry says its 48 recommendations are aimed at making the 'EPA of the future the strong protector of public health and the environment that Victorians expect - and need - it to be.'  The far reaching recommendations would modernise EPA's governing legislation and clarify its objective to protect human health and the environment.  The recommendations seek to clarify the EPA's role and strengthen the EPA's scientific base, functions and tools, as well as its governance structure and funding.

The impact of the report stretches beyond the EPA. The EPA's functions are shared with other agencies within the broader environment protection regime.  The recommendations are aimed at improving coordination mechanisms across this regime, clarifying EPA's role in emergency management, and better managing environmental risks in the land use planning system.

There are issues and themes of relevance for all public authorities contained in the report.  This is particularly so in relation to what the community expects from government services, the importance of government agencies sharing data and mechanisms for whole-of-government approaches to strategy, planning, problem solving and the delivery of services.  

EPA's role

The Report recommends several changes to the way the EPA interacts with other departments and agencies, including:

• Land use planning: The EPA should take on a more strategic role.  This would be achieved via statutory triggers requesting EPA advice and early involvement, for example in planning scheme amendment and rezoning processes.
• Emergency management: EPA's role should focus on providing expert advice to control agencies and aiding with prevention.
• Mining: EPA's role in mining regulation should be strengthened, akin to the role of WorkSafe.

Whole-of-government approach

The report recommends the introduction of a high level Environment Protection (Integration and Coordination) Act to improve coordination across government.  It suggests that effective institutional arrangements will require clearly defined objectives, appropriately allocated roles and responsibilities, and effective mechanisms to promote coordination.

Environmental protection is not the responsibility of just one agency.  The report identifies several situations in which the whole-of-government approach is necessary, including:

• development of policy around climate change, which will significantly impact the EPA, as well as other agencies involved in emergency management;
• development of policy around environmental justice and the relevant health and wellbeing concerns, through the Department of Environment, Land, Water and Planning; and
• a closer working relationship with the Department of Health and Human Services and the Chief Health Officer in relation to protecting human health.

This strategic and coordinated approach to problem solving and the delivery of government services was identified as something the community expected of the EPA, and of government generally.

Data sharing

Data sharing is an important issue closely tied to the need for a coordinated whole-of-government approach to environment protection more broadly.  An evidence base for decision making requires consistent and robust data, as well as having all parties 'at the table'.  There are data sharing initiatives already underway. However, the report recommends that the EPA and other agencies work toward improved systems for State-wide environmental monitoring, a spatial data system and reporting of health, environmental and liveability outcomes.

The Report recommends that the EPA develop a digital data, technology and analytics strategy to guide decision making.  Such improvements could aid data sharing across government as well as with stakeholders.  

Community expectations

It is clear that the changing landscape of stakeholder and community expectations of government have had a significant impact on the report.  The report envisages that the changing context of Victoria's environment, population and economy will lead to changes in stakeholder and community expectations of their environment, their local areas and the delivery of government services in the future.

The Government's response to the report is expected later in 2016.  For the Government's initial response please see here.  There may be significant changes underway for the EPA and the broader environment protection regime.  In the meantime, the report is a useful resource for all government agencies.

For further information on the outcomes of the Independent Inquiry into the EPA and its implications, please contact:

Natasha Maugueret
Managing Principal Solicitor
8684 0402
natasha.maugueret@vgso.vic.gov.au

Mark Egan
Acting Managing Principal Solicitor
8684 0489
mark.egan@vgso.vic.gov.au

Annette Jones
Principal Solicitor
03 8684 0431
annette.jones@vgso.vic.gov.au

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

8 things you need to know now about changes to the Aboriginal Heritage Act 2006

The regime which regulates and protects Aboriginal heritage in Victoria is about to undergo a significant change. The Aboriginal Heritage Amendment Bill 2015, which was passed by parliament on 22 March 2016, introduces a suite of substantive and administrative changes to the Aboriginal Heritage Act 2006.

The general scheme of the Act remains in place. The Act will continue to provide a regime by which Aboriginal heritage may not be harmed, other than in accordance with cultural heritage management plans, particular types of agreements or permits granted under the Act (or other exception). The key bodies created or appointed under the Act, being the Victorian Aboriginal Heritage Council and Registered Aboriginal Parties (or RAPs), remain (albeit subject to some new rules and altered roles). The Victorian Aboriginal Heritage Register also remains, but is given some new work to do.

Within that same general scheme, the Amending Act makes significant changes to existing features and introduces some wholly new ones. We highlight just some of these changes, which may be of particular relevance to Victorian Government departments and agencies.
Who to apply to for a cultural heritage permit

The Bill provides that where there is a RAP for an area, applications for cultural heritage permits must be made to the RAP for the RAP to consider and determine. The Secretary to DPC remains responsible where there is no RAP for an area.

New agreements for managing public land

Public land managers will be able to use a new mechanism for managing Aboriginal cultural heritage, called Aboriginal cultural heritage land management agreements. The new agreements are intended to remove the need for public land managers to apply for a cultural heritage permit each time they wish to undertake low impact works which are likely to affect Aboriginal cultural heritage.
The agreements may be made between RAPs and public land managers. Public land managers include a committee of management, the Secretary of DELWP, Parks Victoria, VicRoads, VicTrack, a water authority or a local council. The agreements are only available where a cultural heritage management plan is not required.

When to execute a cultural heritage management plan

The Amending Act allows a person proposing an activity to prepare a preliminary Aboriginal heritage test to determine whether the activity requires a cultural heritage management plan. The test can be submitted to the Secretary, who must then certify the test or refuse to do so.

New rules for access to the Register

The Victorian Aboriginal Heritage Register is the repository of all known Aboriginal places and objects, as well as the repository of details of agreements made and other matters. Access to the Register is restricted to specified persons for specified purposes.
The Amending Act specifies that additional people may access the Register, including public servants responsible for planning permits and planning scheme amendments. At the same time, access to sensitive information will be more closely held, and it will be an offence to use information obtained from the Register for an unauthorised purpose. Finally, Traditional Owners, through RAPs and the Council, will be able to nominate particular information held on the Register to be classed as sensitive and subject to extra protection.

New regime for protecting cultural knowledge 

The Amending Act creates a new category of heritage called 'Aboriginal intangible heritage'. 'Aboriginal intangible heritage' includes any knowledge of Aboriginal tradition, other than cultural heritage or knowledge which is already widely known to the public. Aboriginal intangible heritage needs to be recorded on the Register to be protected.
In simplified terms, it will be an offence for Aboriginal intangible heritage to be used for commercial purposes without the agreement of the appropriate registered Aboriginal party. It will also be an offence to fail to adhere to any intangible heritage agreement once made (but intangible heritage will generally be excluded from the other offence provisions).

New Enforcement Powers

The Amending Act empowers authorised officers, previously known as inspectors, and Aboriginal heritage officers, who are employees of RAPs appointed by the Minister, to issue a 24-hour stop order to protect Aboriginal heritage from acts that harm it, or are likely to. It is an indictable offence to not comply with the stop order. Authorised officers will also be empowered to issue improvement orders, which require the person to remedy a contravention of the Act.

Altered offences

The Amending Act clarifies and alters the existing offences. It will be an offence to act, or omit to act, in a way that knowingly, recklessly or negligently harms Aboriginal heritage. The Bill also introduces a strict liability offence of harming Aboriginal heritage (which carries a lesser penalty than the offences with a mental element).
It also provides that officers of bodies corporate may be personally liable for acts by the body in prescribed circumstances.  With some exceptions, the new provisions may apply to officers of statutory bodies corporate, so it is important to be aware of these changes.

Aboriginal Ancestral Remains

The Amending Act establishes a new system for managing Aboriginal Ancestral Remains (Aboriginal skeletal material). First, it requires all institutions to report on any remains in their collections to the Victorian Aboriginal Heritage Council within two years of commencement of the Act. This requirement applies to all museums, hospitals and other state agencies and institutions.

Second, the Amending Act requires all remains to be returned to the Council for its management. If the Council, or relevant Traditional Owner, is not able to care for the remains, they are to be deposited at Museum Victoria for safe keeping.

For further information please contact:

Mark Egan
Principal Solicitor
8644 0489

Mary Scalzo
Managing Principal Solicitor
9947 1419

Lease vs Licence - What difference does it make? (Part 2)

Based on the public and personal feedback, our blog topic from September 2015 on the differences between leases and licences certainly seems to have been quite topical.

One reader requested that we provide some more examples for Government practitioners of circumstances where a lease or a licence might be appropriate.  Of course, the particular circumstances of the transaction will determine the form of tenure that is appropriate for the intended use of premises.  With that in mind, we provide some further examples of where a lease or licence might be appropriate for the intended use of the premises.

Lease examples

In short, a lease will be appropriate where the tenant requires exclusive use of land and/or premises for the permitted use.  Where government is the tenant, such uses include delivery of long term projects and services, for example prisons, hospitals and police and court house facilities. 

Where government is the landlord, such uses would include:

• commercial or trading purposes where the operator will undertake a fitout and install furniture, computers, etc;
• sensitive and important community services such as the provision of child care facilities; and
• provision of education services, such as by a TAFE institute.

Licence examples

The granting of exclusive possession and other leasehold rights is not necessary for all land uses.  Common examples of where a licence of land may be appropriate include:

• installation of power line infrastructure by an electricity generation company;
• special event licences for community, cultural or sporting events;
• site investigations for development proposals;
• construction licences or licences for the installation of services and utility infrastructure; and
• cutting or taking away fallen or felled trees for domestic use as firewood.

If you would like further advice regarding land use arrangements and other property issues, the VGSO Property Team is well placed to assist you.  Please contact:

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

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

Elizabeth Wortley

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

Reform to the development contributions system

In 2012, the (then) Minister for Planning announced a preferred framework for the development contributions system in Victoria in A New Victorian Local Development Contribution System - A Preferred Way Forward. Issues such as the cost and time taken to prepare a development contributions plan and the level of detail required to justify a contributions levy were identified as reasons that the existing development contributions system in the Planning and Environment Act 1987 should be changed.

The Standard Development Contributions Advisory Committee was appointed by the Minister for Planning in 2012 to review and report on the new system. It did this in two reports: Report 1; Setting the Framework (2012) and Report 2: Setting the Levies (2013). The Advisory Committee examined the existing development contributions system and recommended reforms to it. These included using standard levies that could be applied in all Victorian municipalities in various development settings, to make the process for producing development contributions plans less costly and more efficient.

Recently, the Planning and Environment Amendment (Infrastructure Contributions) Act 2015 (Amending Act) was passed. It is expected to commence early 2016 and will implement some of the recommendations of the Advisory Committee, including setting a standard levy to raise revenue to pay for infrastructure which is needed because of the development of land for residential and other purposes.

What is an Infrastructure Contributions Plan?

The new Infrastructure Contributions Plan (ICP) system will operate in a similar way to the existing development contributions plan (DCP) scheme, with some significant differences. Similar to DCPs, ICPs are a mechanism to raise and distribute money required to pay for certain infrastructure.

Like DCPs, an ICP can be included in a planning scheme to levy financial contributions (an infrastructure levy) to fund the construction of infrastructure (works, services and facilities), the need for which is generated by the development of land. The levy is payable when a person seeks to develop land.

ICPs cannot be used to levy contributions for State infrastructure in areas where the growth areas infrastructure contribution (GAIC) applies.

What levies can be required under an ICP?

Unlike DCPs, the infrastructure levy imposed under an ICP can consist of a standard levy or a supplementary levy.

Although not explicit in the Amending Act, it is proposed that the Minister for Planning will make directions which will state that the standard levy is to be used to fund 'basic and essential' infrastructure items selected from a pre-set list of 'allowable' items for residential, retail and commercial development. The allowable items are to be defined in the Ministerial directions and are likely to include items such as transport, community and recreation facilities, and a public land component. The standard levy can be picked 'off the shelf' from the allowable items list for certain areas.

The supplementary levy can be imposed to fund infrastructure that cannot be funded from the standard levy. The use of the supplementary levy (and the rate at which it will be set) will need to be justified each time it is used, unlike for the standard levy.

Where do ICPs apply?

Although it is not explicit in the Amending Act, it is expected that the Minister's directions will initially permit ICPs to be used in greenfield growth areas and strategic development areas in metropolitan and non-metropolitan areas. Greenfield growth areas will accommodate Melbourne's urban growth and are usually located on the periphery of urban areas. Strategic development areas are generally identified in Plan Melbourne and are located on sites that provide development opportunities close to public transport and other infrastructure.

Who are the levies paid to?

The levies are paid to local councils, and relevant State agencies who will be responsible for constructing the infrastructure specified in the ICP (such as VicRoads for certain roads and intersections). With the agreement of the State agency or council, land can be set aside on which infrastructure such as roads, community facilities and parks can be constructed.

How is this relevant?

Once the ICP system is operating, State agencies who have a role in providing works, services and facilities to meet the infrastructure needs of new development in greenfields growth areas and strategic development areas will need to be aware of the differences between the existing DCP system and the new ICP system.

This will include familiarity with the types of State infrastructure that can be funded under ICPs (such as public transport improvements). Funding for State infrastructure is expected to be raised via the supplementary levy (and only for areas where the GAIC does not apply).

State agencies can be expected to have a role to play when a supplementary levy is required to fund the cost of providing State infrastructure, including having input into the justification for a supplementary levy for these purposes.

Victorian Government clients seeking advice on land, planning and environment issues can contact:

Juliette Halliday

Managing Principal Solicitor

8684 0299

Mark Egan

Principal Solicitor

8684 0489

Lease vs Licence - What difference does it make?

The State and its agencies own and manage vast tracts of land in Victoria, much of which offers potential economic or other benefits to the private sector.  For example, the State often makes land and buildings available to a business operator for the purposes of running its business or a community group so it can  hold meetings, workshops and/or training sessions.  Alternatively, the State may wish to make land available for use by the private sector in the furtherance of particular significant policy objectives.

Preliminary considerations

Before deciding on the nature of the tenure which your department or agency should grant over a piece of land, it is important to step back and ask a few questions. For example, you should consider:

·         Who wants to occupy the land and for what purpose?

·         Does the Government want to make the land available to achieve a particular policy objective?

·         Does achieving that purpose require exclusive possession or is a lesser form of tenure sufficient?

·         Does the future tenant need to put up the tenure as security for raising capital so they can finance the project?

·         Will the department or agency or third parties need to access the land while it is occupied?

The answers to these questions will assist with determining which form of tenure you should offer to the prospective occupant and the terms and conditions of that tenure.

When is a lease appropriate?

A lease is an agreement between an owner of land and a tenant which grants a right of exclusive possession to the tenant.  This means the tenant can exclude the whole world, including the landlord, from accessing the land for the term of the lease as long as the tenant complies with its obligations under the lease agreement.  Even if a tenant breaches a condition of the lease and risks 'forfeiting' the lease, a leasehold tenant can apply to the Court for the equitable remedy of relief against forfeiture.  If the tenant is successful, the Court will permit the tenant to remain on the land, subject to prompt rectification of the existing breaches and compliance with other conditions.

The rights under a lease will attach to the leased land - if the tenant assigns the lease to a third party, for example if the tenant sells its business, the third party will also enjoy the same right of exclusive possession of the leased premises. 

Another aspect of a lease is that it is capable of being registered on the title to the land.  Registration of the lease also enables registration of any mortgage granted over the leasehold interest.  So if a tenant has granted a mortgage to a bank as security for money borrowed against the lease and the tenant defaults in its mortgage repayments, the bank will be able to access the important statutory powers applicable to a mortgagee in Part IV of the Transfer of Land Act 1958.  These include a mortgagee's power of sale, the power to take possession of the land and a right to seek an order for foreclosure.  As a result, banks may be more willing to provide finance to a tenant with a registered leasehold interest.

These aspects may make a lease an attractive option to someone who wants to operate a business from the premises and needs to raise investment capital for its start up and who also wants the flexibility of later transferring the leasehold interest, along with the business, to a third party. 

Of course, a downside for a tenant is that a higher commercial value is likely to attach to the lease consistently with the powerful bundle of rights held by a leasehold tenant.

When might you grant a licence?

Like a lease, a licence grants a right to a party to access and occupy land subject to the terms of the licence. 

Unlike a lease, the occupant under a licence does not have the right to exclusive possession of the licensed premises - in other words they may have to share occupation with the licensor and third parties or may only be able to use the licensed area at certain times or days.

Another key difference of a licence to a lease is that the rights of a licensee are not assignable to a third party (unless the agreement specifically permits this).  Additionally, a licence interest cannot be registered on title.

Therefore, a licence is likely to be suitable where an occupant needs specific rights to an area of land, water or airspace, but it is not necessary or appropriate for the occupant to have the right to exclude the rest of the world from the premises.  Examples of where licences are commonly used in Government include granting a right to a telecommunications company to install a mobile telecommunications tower on State owned land and allowing community groups to use school buildings and facilities.

As property law experts within Government, the VGSO Property Team is well placed to assist you with land use arrangements and other property issues.  Please contact:

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

Elizabeth Wortley
Senior Solicitor
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

Changes to the operation of the VCAT Planning & Environment List are imminent!

What is the issue?

At the end of 2014, the Victorian Civil and Administrative Tribunal  announced changes proposed to be implemented to its Planning and Environment List from
2 February 2015 which will affect the way this List operates for all applicants, respondents and responsible authorities.

What does it mean for me?

All clients with exposure to the jurisdiction of VCAT, including as proponents, objectors, referral authorities and responsible authorities will be impacted by these changes which we consider will streamline this List to follow a similar mode of operation to the Major Cases List, a subset of the Planning and Environment List.

VCAT advised of the following four key changes in a recent media release.

1. Initiating orders will be sent out for all matters in the Planning and Environment List.  These orders will specify hearing dates and any compulsory conference or mediation dates.  This changes from the current position where parties are not advised of a hearing date until later in the process.
2. Alternative dispute resolution using the expert services of the mediators at VCAT will be further encouraged by notification of the date for attendance at a compulsory conference or mediation at the outset of proceedings.  The current position relies on solicitors advising their clients of the method and process of mediation at VCAT in order to attempt to resolve the dispute by mutually acceptable terms for all parties.
3. Email is proposed to be the 'preferred method' of communication with parties and their advisors, rather than posting orders and hearing dates out in hard copy by ordinary post.
4. New application forms will facilitate the early provision of required documentation and additional details. This includes a copy of the planning permit application, plans and supporting material lodged by the applicant for permit,  detail regarding objectors and whether a cultural heritage management plan has been prepared.

These changes are reflective of the new Major Cases List process, whereby applicants are provided with standard initiating directions setting out all relevant hearing dates together with a timetable for other procedural steps.  In our experience, this new method significantly expedites the hearing and determination of a matters, and if possible the early resolution of a dispute without jeopardising the allocated hearing date. 

These changes will predominantly affect applications for review of the decision to grant (or not to grant) a permit, failure to decide appeals and applications for review of conditions of permit.  Enforcement matters will instead be referred to an initial practice day hearing.

What are the next steps?

Until 2 February 2015, VCAT advise that the old methods and procedures will be applied to applications for review.  At that time, finer details regarding the new procedures will be clarified.  Parties should seek legal advice regarding the impact of the announcement on any future matters proposed to be filed in VCAT. The following staff can assist you:

Eliza Bergin

Principal Solicitor

eliza.bergin@vgso.vic.gov.au

Juliette Halliday

Acting Managing Principal Solicitor

juliette.halliday@vgso.vic.gov.au

Unlicensed to chill - why an esky was deemed a motor vehicle

A man was recently fined almost $1,500 for apparently operating an unregistered vehicle, without a licence.

So, why did that become a story, in The Age, the Herald Sun and the ABC?
Answer: the vehicle was an esky, and the man was riding it along a footpath.

But there is no need to panic - it is still possible to safely and lawfully transport cold beverages, whether by esky, 'chilly bin', or other preferred type of beverage conveyance.

Under the Road Safety Act 1986, it is an offence to use an unregistered motor vehicle on a highway (s 7) and to drive a motor vehicle on a highway (s 18) (unless there is an applicable exemption).  Conventional use of an esky will not contravene either provision, but as this recent news shows, the Road Safety Act can apply more broadly than the public might expect.

First, a footpath can be a highway under the Road Safety Act. A highway includes both 'roads' and 'road related areas'. A footpath or nature strip, which is adjacent to a road, is a road related area (as is, for example, an area that is open to the public and is designated for use by cyclists or animals).

Secondly, any vehicle with a motor may be a motor vehicle, should it be used on a road or road related area. A motor vehicle is any 'vehicle that is used or intended to be used on a highway and that is built to be propelled by a motor that forms part of the vehicle'.  So even if  you attach a motor to your esky, it will still only be a motor vehicle if it is used, or intended to be used, on a highway. That needs to be considered in relation to each particular vehicle or esky (rather than motorised eskies as a class). While it is doubtful that any motorised esky is intended to be used on a highway, it will generally be sufficient if it is actually used on one.

There are also exemptions which could be useful for prospective operators of motorised eskies (and like vehicles) to know about. For example, if one walks with one's motorised esky, rather than rides it, and it has a maximum speed of less than 7 km/h, it would be exempt by an order that has been made under s 3(2) of Road Safety Act. The same order also exempts certain scooters and bicycles. Motorised wheelchairs are exempt under the Act itself.

This case is (hopefully) somewhat unusual. That said, public authorities often have other issues arising under the Road Safety Act (such as in relation to land under their control), or under the Road Management Act 2004, Transport Integration Act 2010, or about roads generally, with which we can assist.

For such road related queries, please contact:

Mark Egan
Principal Solicitor
mark.egan@vgso.vic.gov.au

Anthony Leggiero
Acting Managing Principal Solicitor
anthony.leggiero@vgso.vic.gov.au