The Land Regulation 2020 (“Regulation”) commenced on 1 July 2020 and replaces the expired 2009 regulation. The Regulation is subordinate legislation to the Land Act 1994 (“Act”) and sets out key arrangements for the State land framework.
The key amendments incorporated in the Regulation seek to make the State’s requirements for subleases, trustee leases and trustee subleases more transparent and easily accessible. The Regulation implements the ‘Prescribed Terms’ framework which replaces the previous mandatory standard terms that applied to these types of leases. The new Prescribed Terms are set out in the schedules of the Regulation as follows:
- Schedule 3 – Prescribed terms of particular trustee leases and subleases. This schedule sets out the Prescribed Terms of a trustee lease over a reserve granted under the Act and includes a trustee sublease of a trustee lease.
Schedule 3 does not apply to a trustee lease (construction) or a trustee lease which under another legislative framework does not require Minister’s approval.
- Schedule 4 – Prescribed terms of particular subleases. This schedule sets out the Prescribed Terms of a sublease of lease land.
Schedule 4 does not apply to a sublease of a trustee lease, a sublease of which under section 390A(2) of the Act does not require Minister’s approval or sublease which under another legislative framework does not require Minister’s approval.
The schedules stipulate DNRME’s requirements that are considered necessary to protect the State’s interest and the public benefit of the land.
From 1 July 2020, any new trustee lease or trustee sublease is subject to the Prescribed Terms notwithstanding if the proposed trustee lease document actually refers to the Regulation. For any existing registered trustee lease or trustee lease sublease document lodged at any time prior to 1 July 2020 a transitional period of 12 months will apply. From 1 July 2021:
- Any new trustee lease or trustee lease sublease document lodged for registration in the Titles Registry must not make reference the previous mandatory standard terms.
- All trustee leases and trustee lease subleases will be subject to Prescribed Terms contained in Schedule 3 of the Regulation.
We recommend Councils take the opportunity to review existing trustee lease and trustee lease sublease documents to ensure compliance with the Regulation. If a Council utilises a standard terms document this should also be reviewed to ensure the terms do not conflict with the Regulation and the Prescribed Terms framework.