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NATURAL RESOURCES AND OTHER LEGISLATION AMENDMENT BILL 2010

          Queensland



Natural Resources and Other
Legislation Amendment Bill
2010

 


 

 

Queensland Natural Resources and Other Legislation Amendment Bill 2010 Contents Page Part 1 Preliminary 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Part 2 Amendment of Aboriginal Cultural Heritage Act 2003 3 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 4 Amendment of s 34 (Native title party for an area). . . . . . . . . . . . 25 Part 3 Amendment of Aboriginal Land Act 1991 5 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 6 Amendment of s 20 (Beds and banks of watercourses and lakes) 25 7 Amendment of schedule (Dictionary) . . . . . . . . . . . . . . . . . . . . . . 26 Part 4 Amendment of Coastal Protection and Management Act 1995 8 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 9 Amendment of s 123 (Development permits--right to use and occupy) ....................................... 26 10 Amendment of schedule (Dictionary) . . . . . . . . . . . . . . . . . . . . . . 26 Part 5 Amendment of Dividing Fences Act 1953 11 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 12 Insertion of new s 4A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 4A Act not to apply to State plantation forest etc. . . . . . . 27 Part 6 Amendment of Fire and Rescue Service Act 1990 13 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 14 Amendment of s 61 (Interpretation and application of division) . . 28 15 Amendment of s 66 (Fires in State forests etc.) . . . . . . . . . . . . . . 29 16 Amendment of s 68 (Powers of occupier of entry etc.). . . . . . . . . 29

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Contents Part 7 Amendment of Forestry Act 1959 17 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 18 Insertion of new ss 14-15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 14 Joint Ministerial power . . . . . . . . . . . . . . . . . . . . . . . . 30 15 Expiry of ss 14-15 . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 19 Amendment of s 17 (Appointment of officers) . . . . . . . . . . . . . . . 31 20 Insertion of new ss 18A-18C . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 18A General powers of plantation officers . . . . . . . . . . . . . 32 18B Powers of plantation officers in relation to fire . . . . . . 34 18C Plantation operator and plantation officer are persons performing duties under this Act only for particular provisions . . . . . . . . . . . . . . . . . . . . . . . . . . 34 21 Insertion of new s 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 20 Retention of document produced to plantation officer 35 22 Amendment of s 21 (Officers not to trade in timber etc.) . . . . . . . 36 23 Insertion of new s 32AA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 32AA Chief executive to notify chief executive (lands) of change to State forest . . . . . . . . . . . . . . . . . . . . . . . . 36 24 Insertion of new pt 3A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Part 3A State plantation forest 32A Declaration of land as State plantation forest. . . . . . . 36 32B Particular areas of conservation value to be removed from State plantation forest . . . . . . . . . . . . . 37 25 Omission of s 33AA (Application of pt 4 to a State plantation forest) ....................................... 38 26 Amendment of s 34 (Use of State forests) . . . . . . . . . . . . . . . . . . 38 27 Amendment of s 34A (Specialised management within State forests) ........................................ 38 28 Amendment of s 34H (Self-registration camping areas) . . . . . . . 39 29 Amendment of s 35 (Granting of permit for land within State forest) ....................................... 39 30 Amendment of s 37 (Particular authorities over State forest, timber reserve or forest entitlement area) . . . . . . . . . . . . . . . . . . 39 31 Amendment of s 39 (Interfering with forest products on State forests etc.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 32 Replacement of s 43 (Application of pt 6 to forest products from a State plantation forest) . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 43 Application of pt 6 to forest products from a licence area ................................ 40 Page 2

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Contents 33 Amendment of s 46 (Sale of forest products or quarry material) . 40 34 Amendment of s 55 (Licences to get forest products etc.) . . . . . . 41 35 Amendment of s 56 (Permits etc.) . . . . . . . . . . . . . . . . . . . . . . . . 41 36 Amendment of s 57 (Power of entry under licence or permit) . . . 41 37 Amendment of s 58 (Power to cancel, suspend, permit, licence etc.) ........................................ 42 38 Amendment of s 59 (Transfer of permits etc.) . . . . . . . . . . . . . . . 42 39 Amendment of s 60 (Failure to comply with provisions of lease etc.) ........................................ 42 40 Amendment of s 61H (Appeal to Land Court) . . . . . . . . . . . . . . . 42 41 Amendment of s 61J (Agreement about natural resource products) ..................................... 43 42 Amendment of s 61L (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . 43 43 Amendment of s 61N (Application of relevant provisions) . . . . . . 43 44 Omission of pt 6C and s 61TW . . . . . . . . . . . . . . . . . . . . . . . . . . 43 45 Insertion of new pts 6D and 6E . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Part 6D Plantation forestry Division 1 Preliminary 61Q Definitions for pt 6D . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Division 2 Plantation licences 61QA Agreements to deal with natural resource product etc. 44 61QB Related agreements . . . . . . . . . . . . . . . . . . . . . . . . . . 46 61QC Plantation licence is an interest in land . . . . . . . . . . . 46 61QD Sale of natural resource product . . . . . . . . . . . . . . . . 46 61QE Statutory obligations. . . . . . . . . . . . . . . . . . . . . . . . . . 46 61QF Rights under a plantation licence . . . . . . . . . . . . . . . . 47 61QG Appointment of plantation manager . . . . . . . . . . . . . . 48 61QH Acts and omissions of plantation sublicensee or plantation manager etc. . . . . . . . . . . . . . . . . . . . . . . . 48 61QI Plantation licence may be transferred . . . . . . . . . . . . 48 61QJ Related agreements may be transferred . . . . . . . . . . 49 61QK Amending a plantation licence . . . . . . . . . . . . . . . . . . 49 61QL Plantation licensee's rights of access over relevant State land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 61QM Unformed plantation forest roads . . . . . . . . . . . . . . . . 51 61QN Chief executive to identify unformed plantation forest roads for s 61QM . . . . . . . . . . . . . . . . . . . . . . . 52 Division 3 Plantation sublicences Page 3

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Contents 61QO Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 61QP Rights under the plantation sublicence . . . . . . . . . . . 54 61QQ Appointment of plantation manager . . . . . . . . . . . . . . 54 61QR Plantation sublicence may be transferred. . . . . . . . . . 54 61QS Related agreements may be transferred . . . . . . . . . . 55 61QT Amending a plantation sublicence . . . . . . . . . . . . . . . 55 61QU Validity of plantation sublicence or amendment of plantation sublicence against mortgagee . . . . . . . . . . 56 Division 4 Mortgages 61QV Mortgages require Ministerial approval . . . . . . . . . . . 56 Division 5 Ownership of improvements 61QW Application of division. . . . . . . . . . . . . . . . . . . . . . . . . 57 61QX Ownership of equipment and improvements . . . . . . . 57 Division 6 Cancellation 61QY Show cause notice for cancellation of plantation licence ............................ 58 61QZ Representations about show cause notice. . . . . . . . . 58 61R Ending show cause process without further action . . 59 61RA Cancellation of plantation licence for licence area or part ............................... 59 Division 7 Surrender or division of plantation licence 61RB Surrender of plantation licence or part of a plantation licence ........................ 60 61RC Application for division . . . . . . . . . . . . . . . . . . . . . . . . 61 61RD Deciding the application . . . . . . . . . . . . . . . . . . . . . . . 62 61RE Approving the application . . . . . . . . . . . . . . . . . . . . . . 62 61RF Notice of decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 61RG Minister and the plantation licensee may enter into new plantation licence etc. . . . . . . . . . . . . . . . . . . . . . 63 Division 8 Compensation 61RH Events that are compensation events. . . . . . . . . . . . . 64 61RI Events that are not compensation events. . . . . . . . . . 65 61RJ Chief executive to give notice of compensation events to the plantation licensee . . . . . . . . . . . . . . . . 66 61RK Compensation to be assessed under applied provisions of the Acquisition of Land Act 1967 in absence of agreement . . . . . . . . . . . . . . . . . . . . . . . . 66 Part 6E Registration of interests in State plantation forests Page 4

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Contents Division 1 Preliminary 61RL Definitions for pt 6E . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Division 2 Register 61RM Register of plantation licences . . . . . . . . . . . . . . . . . . 68 61RN Form of register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 61RO Registration of documents . . . . . . . . . . . . . . . . . . . . . 68 61RP Particulars that must be recorded . . . . . . . . . . . . . . . 69 61RQ Particulars that may be recorded . . . . . . . . . . . . . . . . 70 61RR Procedures on lodgement and registration of document ............................ 70 61RS Chief executive (lands) may correct registers. . . . . . . 71 61RT Documents form part of the register. . . . . . . . . . . . . . 71 Division 3 General requirements for documents in the register 61RU Form of documents . . . . . . . . . . . . . . . . . . . . . . . . . . 72 61RV Execution of documents . . . . . . . . . . . . . . . . . . . . . . . 72 61RW Registered documents to comply with particular requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 61RX Power of the chief executive (lands) when fraud suspected .............................. 74 Division 4 Registration of documents 61RY Right to have interest registered. . . . . . . . . . . . . . . . . 74 61RZ Registered document operates as a deed . . . . . . . . . 74 61S Order of registration of documents. . . . . . . . . . . . . . . 74 61SA Priority of registered documents. . . . . . . . . . . . . . . . . 75 61SB How a document is registered . . . . . . . . . . . . . . . . . . 75 61SC When a document is registered . . . . . . . . . . . . . . . . . 75 61SD No registration in absence of required approval or consent of Minister . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Division 5 Consequences of registration 61SE Benefits of registration . . . . . . . . . . . . . . . . . . . . . . . . 76 61SF Effect of registration on interest . . . . . . . . . . . . . . . . . 76 61SG Evidentiary effect of recording particulars in the register ............................. 77 Division 6 Transfers 61SH Registering a transfer . . . . . . . . . . . . . . . . . . . . . . . . . 77 Division 7 Mortgages 61SI Registering a mortgage . . . . . . . . . . . . . . . . . . . . . . . 78 Page 5

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Contents 61SJ Original mortgagee to confirm identity of mortgagor . 78 61SK Mortgagee transferee to confirm identity of mortgagor .......................... 79 61SL Releasing a mortgage . . . . . . . . . . . . . . . . . . . . . . . . 81 61SM Amending or transferring a mortgage. . . . . . . . . . . . . 81 61SN Amending priority of mortgages . . . . . . . . . . . . . . . . . 81 61SO Priority of advances . . . . . . . . . . . . . . . . . . . . . . . . . . 81 61SP Transfer of mortgage does not affect priority . . . . . . . 82 61SQ Powers of registered mortgagee . . . . . . . . . . . . . . . . 82 61SR Mortgagee exercising power of sale. . . . . . . . . . . . . . 83 61SS Effect of transfer after sale under mortgage . . . . . . . . 83 Division 8 Trusts 61ST Details of trust must be given . . . . . . . . . . . . . . . . . . . 83 Division 9 Enforcement warrants 61SU Definition for division . . . . . . . . . . . . . . . . . . . . . . . . . 84 61SV Registering an enforcement warrant . . . . . . . . . . . . . 84 61SW Effect of registering an enforcement warrant . . . . . . . 84 61SX Cancellation of registration of an enforcement warrant ............................ 85 61SY Discharging or satisfying an enforcement warrant . . . 85 61SZ Transfer of plantation licence or plantation sublicence sold in execution . . . . . . . . . . . . . . . . . . . . 85 61T Effect on enforcement warrant of transfer after sale by mortgagee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 Division 10 Powers of attorney 61TA Power of attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 Division 11 Caveats Subdivision 1 Caveats--general 61TB Requirements of caveats . . . . . . . . . . . . . . . . . . . . . . 87 61TC Lodging caveat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 61TD Notifying caveat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 61TE Effect of lodging caveat . . . . . . . . . . . . . . . . . . . . . . . 89 61TF Withdrawing caveat . . . . . . . . . . . . . . . . . . . . . . . . . . 90 61TG Lapsing of caveat . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 61TH Removing caveat . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 61TI Cancelling caveat . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 61TJ Further caveat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 Page 6

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Contents 61TK Notices to the caveator. . . . . . . . . . . . . . . . . . . . . . . . 92 Subdivision 2 Caveats--chief executive (lands) 61TL Chief executive (lands) may prepare and register caveat ............................. 93 Division 12 Relationship with other laws 61TM Relationship with Property Law Act 1974. . . . . . . . . . 94 61TN Relationship with Personal Property Securities Act 2009 (Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 Division 13 General 61TO Withdrawing lodged document before registration . . . 95 61TP Chief executive may call in document for correction or cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 61TQ Requisitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 61TR Rejecting document for failure to comply with requisition ........................... 97 61TS Entitlement to search the register. . . . . . . . . . . . . . . . 97 61TT Evidentiary effect of certified copies of documents . . 99 61TU Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 61TV Protection from liability . . . . . . . . . . . . . . . . . . . . . . . . 99 46 Replacement of pt 7, hdg (Control and prohibition of fires on State forests, timber reserves and forest entitlement areas) . . . . 100 47 Renumbering of s 61Q (Application of pt 7 to a State plantation forest) ........................................ 100 48 Amendment of s 62 (Control of fires on State forests etc.). . . . . . 100 49 Amendment of s 63 (Duty of lessee of State forest etc.) . . . . . . . 101 50 Insertion of new s 63A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 63A Duty of plantation licensee etc. . . . . . . . . . . . . . . . . . 102 51 Amendment of s 64 (Certain person to be incapable of holding permits etc.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 52 Amendment of s 65 (Control of fires on lands adjoining State forest etc.) ........................................ 103 53 Insertion of new ss 65A and 65B . . . . . . . . . . . . . . . . . . . . . . . . . 103 65A Recovery of expenses incurred in extinguishing fires on State forests. . . . . . . . . . . . . . . . . . . . . . . . . . 103 65B Recovery of expenses incurred in extinguishing fires on State forests within licence areas . . . . . . . . . 104 54 Amendment of s 69 (Forfeiture of leases and the like and cancellation of agreements) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 55 Replacement of s 69E (Application of pt 8 to a State plantation forest) ........................................ 106 Page 7

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Contents 69E Chief executive must consult with plantation licensee or plantation sublicensee if considering exercising power in relation to a licence area. . . . . . . 106 56 Amendment of s 72 (Wild stock). . . . . . . . . . . . . . . . . . . . . . . . . . 107 57 Amendment of s 73 (Unlawfully using State forests etc.) . . . . . . . 107 57A Amendment of s 74 (Unauthorised building etc. within State forest etc.) . . . . . . . . . . . . . . . . . . . . . . . . 107 58 Amendment of s 75 (Removal of trespassers) . . . . . . . . . . . . . . . 107 59 Amendment of s 76 (Entry on to reserves may be prohibited) . . . 108 59A Amendment of s 79 (Subpurchase) . . . . . . . . . . . . . . 108 60 Amendment of s 80 (Accounts of forest products) . . . . . . . . . . . . 108 61 Insertion of new s 83A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 83A Particular decisions subject to review. . . . . . . . . . . . . 109 62 Amendment of s 84 (Matters may be completed by different officers) ...................................... 110 63 Amendment of s 88 (Offences generally) . . . . . . . . . . . . . . . . . . . 110 64 Insertion of new s 88A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 88A Recovery of moneys by plantation licensee or plantation sublicensee . . . . . . . . . . . . . . . . . . . . . . . . 111 65 Amendment of s 91 (Power to waive proceedings) . . . . . . . . . . . 111 66 Amendment of s 95 (Facilitation of proof). . . . . . . . . . . . . . . . . . . 111 67 Insertion of new s 96AA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 96AA Delegation by Minister . . . . . . . . . . . . . . . . . . . . . . . . 111 68 Amendment of s 96A (Delegation by chief executive) . . . . . . . . . 112 69 Insertion of new ss 96B-96E . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 96B Delegation by chief executive--State plantation forests ............................... 112 96C Delegation by chief executive (lands) . . . . . . . . . . . . . 114 96D Delegation by FPQ and head of FPQO . . . . . . . . . . . 115 96E Protection from liability . . . . . . . . . . . . . . . . . . . . . . . . 115 70 Amendment of s 97 (Regulation-making power) . . . . . . . . . . . . . 115 71 Replacement of pt 10 heading . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 72 Insertion of new pt 10, div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 Division 2 Natural Resources and Other Legislation Amendment Act 2010 118 Definitions for subdiv 1 . . . . . . . . . . . . . . . . . . . . . . . . 116 119 Provision for s 17 (Appointment of officers) . . . . . . . . 117 120 Provision for s 34AA or 34AB . . . . . . . . . . . . . . . . . . . 118 Page 8

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Contents 121 Provision for s 34A (Specialised management within State forests) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 122 Provision for s 34G (Regulating movement of vehicles on feature protection areas etc.). . . . . . . . . . 119 123 Provision for s 34H (Self-registration camping areas) 119 124 Provision for s 35 (Granting of permit for land within State forest) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 125 Provision for s 55 (Licences to get forest products etc.) ......................... 120 126 Provision for s 56 (Permits etc.)--general . . . . . . . . . 120 127 Provision for s 56 (Permits etc.)--administering party for FPQ sales permits . . . . . . . . . . . . . . . . . . . . 120 128 Provision for s 56 (Permits etc.)--application of relevant provisions for FPQ sales permits . . . . . . . . . 121 129 Provision for s 73 (Unlawfully using State forests etc.) 122 130 References to FPQ. . . . . . . . . . . . . . . . . . . . . . . . . . . 123 131 Dissolution of corporation sole under the Forestry Plantations Queensland Act 2006 . . . . . . . . . . . . . . . 123 132 Amendment of regulations by the 2010 Amendment Act does not affect powers of Governor in Council . . 123 73 Omission of sch 1 (Administering entity for State plantation forests) ..................................... 123 74 Amendment of sch 3 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 124 Part 8 Amendment of Forestry Regulation 1998 75 Regulation amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 76 Amendment of s 3 (Powers of forest officers in recreation areas) 126 77 Amendment of s 7 (Fire control in recreation areas) . . . . . . . . . . 127 78 Amendment of s 23 (Operation of vehicles in State forests) . . . . 127 79 Amendment of s 24 (Operation of vessels in State forests) . . . . . 127 80 Insertion of new s 32A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 32A State plantation forests. . . . . . . . . . . . . . . . . . . . . . . . 127 81 Omission of s 33 (Forest drives). . . . . . . . . . . . . . . . . . . . . . . . . . 128 82 Amendment of s 34 (Plan references) . . . . . . . . . . . . . . . . . . . . . 128 83 Replacement of sch 4 (State forest parks) . . . . . . . . . . . . . . . . . . 128 Schedule 4 State forests parks 84 Insertion of new sch 4A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129 Schedule 4A State plantation forests 85 Omission of sch 5 (Forest drives). . . . . . . . . . . . . . . . . . . . . . . . . 132 Page 9

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Contents Part 9 Amendment of Forestry Plantations Queensland Act 2006 86 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 87 Omission of s 4 (Declaration of land as State plantation forest). . 132 88 Omission of s 9 (Limitation on FPQ's powers in relation to State plantation forests) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 89 Amendment of s 12 (Functions of FPQ). . . . . . . . . . . . . . . . . . . . 133 90 Omission of ss 35 and 36. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 91 Omission of s 39 (Application of mineral resources legislation) . . 133 92 Insertion of new pt 5, div 1 hdg . . . . . . . . . . . . . . . . . . . . . . . . . . 133 93 Omission of s 61 (Relevant proceedings). . . . . . . . . . . . . . . . . . . 134 94 Insertion of new pt 5, div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 Division 2 Transitional provisions for Natural Resources and Other Legislation Amendment Act 2010 64 Particular improvements on State plantation forest taken to personal property of FPQ . . . . . . . . . . . . . . . 134 95 Amendment of sch 2 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 135 Part 10 Amendment of Forestry (State Forests) Regulation 1987 96 Regulation amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 97 Amendment of schedule (State forests) . . . . . . . . . . . . . . . . . . . . 135 Part 11 Amendments of Land Act 1994 commencing on assent 98 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 99 Amendment of s 15 (Leasing land) . . . . . . . . . . . . . . . . . . . . . . . 136 100 Amendment of s 18 (Exchanging land) . . . . . . . . . . . . . . . . . . . . 136 101 Amendment of s 48 (Trustees to give information and allow inspection of records) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 102 Amendment of s 61 (Conditions on trustee leases and trustee permits) .................................... 136 103 Insertion of new ch 4, pt 1, div 2A, hdg . . . . . . . . . . . . . . . . . . . . 137 104 Replacement of s 129 (Lease for significant development) . . . . . 137 129 Lease for significant development . . . . . . . . . . . . . . . 137 129A Further dealings with lease land on completion of significant development . . . . . . . . . . . . . . . . . . . . . . . 138 105 Relocation and renumbering of s 131 (Amalgamation may be a condition). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 106 Insertion of new ch 4, pt 3, div 1A, hdg . . . . . . . . . . . . . . . . . . . . 139 107 Amendment of s 155 (Length of term leases) . . . . . . . . . . . . . . . 139 108 Replacement of ss 155A and 155B . . . . . . . . . . . . . . . . . . . . . . . 141 Division 1B Extension of particular term leases Page 10

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Contents 155AA Application of division 1B . . . . . . . . . . . . . . . . . . . . . . 141 155A Extensions for a term of up to 40 years . . . . . . . . . . . 142 155B Extensions for a term of up to 50 years . . . . . . . . . . . 142 155BA Extensions for a term of up to 75 years . . . . . . . . . . . 144 109 Amendment of s 155C (Registering and taking of effect of extension) ................................... 145 110 Replacement of s 155D (Power to reduce term of extended lease) ....................................... 145 Division 1C Reduction of particular term leases 155D When Minister may reduce. . . . . . . . . . . . . . . . . . . . . 146 155DA Notice of intention to reduce term . . . . . . . . . . . . . . . 147 111 Amendment of s 155E (Provisions about reduction) . . . . . . . . . . 148 112 Insertion of new ch 4, pt 3, div 1D . . . . . . . . . . . . . . . . . . . . . . . . 148 113 Amendment of s 158 (Application for new lease) . . . . . . . . . . . . . 148 114 Amendment of s 159A (Provisions for decision about most appropriate form of tenure). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 115 Amendment of s 162 (Issuing of new lease) . . . . . . . . . . . . . . . . 149 116 Amendment of s 166 (Application to convert lease). . . . . . . . . . . 149 117 Amendment of s 169 (Conditions of freehold offer) . . . . . . . . . . . 149 118 Amendment of s 176A (General provisions for deciding application) .................................. 149 119 Amendment of s 176L (General provisions for deciding application) ................................. 150 120 Amendment of s 176W (Content of land management agreement) ................................... 150 121 Amendment of s 183 (Rent payable generally) . . . . . . . . . . . . . . 150 122 Amendment of s 183A (Set rents) . . . . . . . . . . . . . . . . . . . . . . . . 151 123 Insertion of new s 201A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 201A Land management agreement condition . . . . . . . . . . 151 124 Amendment of s 214E (Power to reduce term of lease or impose additional conditions) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152 125 Amendment of s 234 (When lease may be forfeited) . . . . . . . . . . 152 126 Amendment of ch 5, pt 4, div 2A, hdg (Forfeiture of leases by referral to court) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152 127 Amendment of s 238 (Application to the court for forfeiture) . . . . 152 128 Amendment of s 239 (Designated person's options if court decides on forfeiture) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152 129 Amendment of s 240E (Sale by lessee) . . . . . . . . . . . . . . . . . . . . 153 130 Amendment of s 240F (Sale by mortgagee instead of forfeiture). 153 Page 11

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Contents 131 Amendment of s 240G (Application) . . . . . . . . . . . . . . . . . . . . . . 154 132 Amendment of s 240J (Application of sdiv 4) . . . . . . . . . . . . . . . . 154 133 Amendment of s 240N (Advice about entering transition to sale agreement) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154 134 Amendment of s 240P (Auction or sale of lease) . . . . . . . . . . . . . 154 135 Amendment of s 275 (Registers comprising land registry) . . . . . 154 136 Amendment of s 276 (Registers to be kept by chief executive) . . 154 137 Amendment of s 288A (Original mortgagee to confirm identity of mortgagor) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 138 Amendment of s 288C (Effect of registration of mortgage under Land Title Act 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 139 Amendment of s 290I (Division of lot on standard format plan of subdivision) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156 140 Amendment of s 294I (Extinguishing a building management statement) ...................................... 156 141 Amendment of s 327 (Absolute surrender of deed of grant) . . . . 156 142 Amendment of s 327B (Applying to surrender) . . . . . . . . . . . . . . 156 143 Amendment of s 331 (Effect of surrender on existing interests). . 157 144 Amendment of s 373A (Covenant by registration) . . . . . . . . . . . . 157 145 Amendment of s 373E (Application of div 8B) . . . . . . . . . . . . . . . 157 146 Amendment of s 373F (Definitions for div 8B) . . . . . . . . . . . . . . . 157 147 Amendment of s 374 (Details of trust must be given). . . . . . . . . . 158 148 Amendment of s 374A (Interests held in trust must be registered) .................................. 158 149 Amendment of s 375 (Document of transfer to trustee) . . . . . . . . 159 150 Amendment of s 389J (Further caveat) . . . . . . . . . . . . . . . . . . . . 159 151 Amendment of s 392 (Delegation by Minister) . . . . . . . . . . . . . . . 159 152 Insertion of new ch 9, pt 1H . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160 Part 1H Transitional provisions for Natural Resources and Other Legislation Amendment Act 2010 521U Definitions for pt 1H . . . . . . . . . . . . . . . . . . . . . . . . . . 160 521V Existing term lease applications . . . . . . . . . . . . . . . . . 160 521W Existing extension applications. . . . . . . . . . . . . . . . . . 160 521X Application of s 155D to existing leases . . . . . . . . . . . 161 521Y Application of s 201A to existing leases . . . . . . . . . . . 161 153 Amendment of sch 2 (Original decisions). . . . . . . . . . . . . . . . . . . 161 154 Amendment of sch 6 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 161 Page 12

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Contents Part 12 Amendments of Land Act 1994 commencing by proclamation 155 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162 156 Replacement of s 5 (Land to which Act applies) . . . . . . . . . . . . . 162 5 Land to which Act applies. . . . . . . . . . . . . . . . . . . . . . 162 157 Replacement of ch 1, pt 4 hdg (Land near high-water mark) . . . . 162 158 Amendment of s 8 (Definitions for pt 4) . . . . . . . . . . . . . . . . . . . . 163 159 Replacement of ss 9 and 10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164 Division 2 The tidal environment 9 Land adjacent to tidal boundary or right line tidal boundary owned by State. . . . . . . . . . . . . . . . . . . . . . 164 10 Land raised above high-water mark by works . . . . . . 165 160 Amendment of s 13 (Power to deal with land below high-water mark) .......................................... 165 161 Insertion of new ch 1, pt 4, div 3. . . . . . . . . . . . . . . . . . . . . . . . . . 166 Division 3 The non-tidal environment 13A Land adjacent to non-tidal boundary (watercourse) or non-tidal boundary (lake) owned by State . . . . . . . 166 13B Power to declare and deal with former watercourse land ................................. 167 162 Amendment of s 14 (Governor in Council may grant land) . . . . . 169 163 Amendment of s 15 (Leasing land) . . . . . . . . . . . . . . . . . . . . . . . 170 164 Amendment of s 86 (Public notice of proposed surrender) . . . . . 170 165 Amendment of s 113 (Public notice of availability to be given). . . 170 166 Amendment of s 116 (Interests in land may be sold after auction) 171 167 Amendment of s 126 (Strategic port land) . . . . . . . . . . . . . . . . . . 171 168 Amendment s 178 (Permits below high-water mark) . . . . . . . . . . 171 169 Amendment of s 240P (Auction or sale of lease) . . . . . . . . . . . . . 172 170 Amendment of s 358 (Changing deeds of grant--change in description or boundary of land). . . . . . . . . . . . . . . . . . . . . . . . . . 172 171 Amendment of s 359 (Correcting or cancelling deeds of grant) . . 172 172 Amendment of s 360 (Governor in Council may change freeholding leases) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172 173 Amendment of s 360C (Applying to amend description of lease) 172 174 Amendment of s 393 (Delegation by chief executive) . . . . . . . . . 173 175 Insertion of new ch 7, pt 1, div 6. . . . . . . . . . . . . . . . . . . . . . . . . . 173 Division 6 Public notices other than gazette notices Page 13

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Contents 403C Publication of particular public notices on department's website . . . . . . . . . . . . . . . . . . . . . . . . . 173 176 Amendment of s 431C (Further evidentiary aids). . . . . . . . . . . . . 174 177 Omission of ch 7, pt 3B (Tidal boundary plans of subdivision). . . 174 178 Insertion of new ss 521Z and 521ZA . . . . . . . . . . . . . . . . . . . . . . 174 521Z Continuing application of no compensation provision 174 521ZA Lease or permit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 179 Amendment of sch 2 (Original decisions). . . . . . . . . . . . . . . . . . . 175 180 Amendment of sch 6 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 176 Part 13 Amendment of Land Title Act 1994 181 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177 182 Amendment of s 9A (Land title practice manual) . . . . . . . . . . . . . 177 183 Amendment of s 11A (Original mortgagee to confirm identity of mortgagor) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177 184 Amendment of s 18A (Pre-examination of plans). . . . . . . . . . . . . 178 185 Replacement of s 49DA (Creation of common property) . . . . . . . 178 49DA Creation of common property. . . . . . . . . . . . . . . . . . . 178 186 Amendment of s 49E (Division of lot on standard format plan of subdivision) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178 187 Amendment of s 54B (Circumstances under which building management statement may be registered). . . . . . . . . . . . . . . . . 178 188 Amendment of s 54H (Extinguishing a building management statement) .................................... 179 189 Amendment of s 97A (Covenant by registration) . . . . . . . . . . . . . 179 190 Amendment of s 109 (How trusts may be registered) . . . . . . . . . 180 191 Amendment of s 110 (Instrument of transfer to trustee). . . . . . . . 180 192 Amendment of s 129 (Further caveat) . . . . . . . . . . . . . . . . . . . . . 180 193 Amendment of s 130 (Compensation for improper caveat) . . . . . 180 194 Amendment of s 154 (Lodging certificate of title) . . . . . . . . . . . . . 181 195 Amendment of s 162 (Obligations of witness for individual). . . . . 181 196 Amendment of s 185 (Exceptions to s 184) . . . . . . . . . . . . . . . . . 181 197 Amendment of s 189 (Matters for which there is no entitlement to compensation) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 198 Amendment of s 189A (Limit on amounts recoverable by mortgagee) .................................. 182 199 Insertion of new s 196A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182 196A Publication of particular public notices on department's website . . . . . . . . . . . . . . . . . . . . . . . . . 182 Page 14

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Contents 200 Omission of pt 10A (Tidal boundary plans of subdivision) . . . . . . 183 201 Insertion of new pt 12, div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183 Division 5 Transitional provision for Natural Resources and Other Legislation Amendment Act 2010 211 Continuing application of no compensation provision 183 202 Amendment of sch 2 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 184 Part 14 Amendment of Mineral Resources Act 1989 203 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184 204 Amendment of schedule (Dictionary) . . . . . . . . . . . . . . . . . . . . . . 184 Part 15 Amendment of State Development and Public Works Organisation Act 1971 205 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185 206 Amendment of sch 2 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 185 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 207 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186 208 Amendment of s 6 (Survey standards) . . . . . . . . . . . . . . . . . . . . . 186 209 Amendment of s 9 (When survey standards and survey guidelines have effect) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 210 Insertion of new s 25A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 25A Special provision for taking of soil samples for multiple lot declarations . . . . . . . . . . . . . . . . . . . . . . . 187 211 Amendment of s 32 (Authority for cadastral surveyor to act for another in particular circumstances) . . . . . . . . . . . . . . . . . . . . . . 188 212 Amendment of s 51 (Survey control register) . . . . . . . . . . . . . . . . 188 213 Amendment of s 59 (Meaning of particular words used in describing an administrative area boundary) . . . . . . . . . . . . . . . . 188 214 Renumbering of pts 7 and 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188 215 Insertion of new pt 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 Part 7 Tidal and non-tidal boundaries and associated matters Division 1 Preliminary 62 Definitions for pt 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 63 Meaning of watercourse for pt 7 . . . . . . . . . . . . . . . . . 197 64 Application of ambulatory boundary principles in pt 7 198 65 Special provision for reserved plans of survey . . . . . . 198 Division 2 Tidal boundaries Subdivision 1 Preliminary 66 Non-application of sdivs 2 to 4 to particular land . . . . 200 Page 15

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Contents 67 Overview of sdivs 2 to 6 . . . . . . . . . . . . . . . . . . . . . . . 201 68 Operation of sdivs 2 to 4 . . . . . . . . . . . . . . . . . . . . . . 202 69 Noting of advice about operation of sdiv 3 or div 3 . . 203 70 Meaning of tidal boundary of land . . . . . . . . . . . . . . . 203 71 Meaning of specified tidal boundary. . . . . . . . . . . . . . 204 72 Tidal boundary location criteria . . . . . . . . . . . . . . . . . 206 73 Special regulation-making power to support tidal boundary location . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207 74 Special provision for plans of survey approved under stay provisions . . . . . . . . . . . . . . . . . . . . . . . . . 207 Subdivision 2 Locating tidal boundaries at law until registration of first new plan of survey 75 Application of sdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 208 76 Current adopted natural feature rule (tidal) provision ........................... 208 77 Current adopted natural feature rule (tidal) exception provision. . . . . . . . . . . . . . . . . . . . . . . . . . . 209 Subdivision 3 Locating tidal boundaries at law from registration of first new plan of survey 78 Application of sdiv 3 . . . . . . . . . . . . . . . . . . . . . . . . . . 210 79 Special requirement to support the operation of sdiv 3 ............................. 211 80 Original adopted natural feature rule (tidal) provision. 212 81 First exception for the original adopted natural feature rule (tidal) provision (alternative natural feature exception). . . . . . . . . . . . . . . . . . . . . . . . . . . . 213 82 Second exception for the original adopted natural feature rule (tidal) provision (applied criteria exception) ............................ 214 83 Third exception for the original adopted natural feature rule (tidal) provision (chief executive single lot declaration (tidal) exception) . . . . . . . . . . . . . . . . . 214 Subdivision 4 Locating tidal boundaries at law from registration of subsequent new plan of survey 84 Application of sdiv 4 . . . . . . . . . . . . . . . . . . . . . . . . . . 217 85 Special requirement to support the operation of sdiv 4 ............................... 217 86 First new plan of survey adopted feature rule (tidal) . 218 Subdivision 5 Locating tidal boundaries at law on coming into force of new source material 87 Application of sdiv 5 . . . . . . . . . . . . . . . . . . . . . . . . . . 219 Page 16

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Contents 88 Special requirement to support the operation of sdiv 5 ............................... 219 89 New source material adopted feature rule (tidal) . . . . 219 Subdivision 6 Esplanades 90 Boundary of land with excluded or dedicated esplanade--source material coming into force before commencement. . . . . . . . . . . . . . . . . . . . . . . . 220 91 Boundary of land with excluded or dedicated esplanade--source material coming into force after commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221 92 Boundary of land subject to reservation of esplanade, before dedication . . . . . . . . . . . . . . . . . . . 222 Division 3 Miscellaneous issues in the tidal environment 93 Multiple lot declaration (tidal) provision . . . . . . . . . . . 223 94 No compensation for operation of div 2 or this division ........................... 226 Division 4 Non-tidal boundaries Subdivision 1 Preliminary 95 Non-application of sdivs 2 to 4 to particular land . . . . 227 96 Overview of sdivs 2 to 6 . . . . . . . . . . . . . . . . . . . . . . . 228 97 Operation of sdivs 2 to 4 . . . . . . . . . . . . . . . . . . . . . . 229 98 Noting of advice about operation of sdiv 3 or div 5 . . 229 99 Meanings of non-tidal boundary (lake) and non-tidal boundary (watercourse). . . . . . . . . . . . . . . . 230 100 Non-tidal boundary (watercourse) location criteria. . . 232 101 Special regulation-making power to support non-tidal boundary (watercourse) location . . . . . . . . . 233 Subdivision 2 Locating non-tidal boundaries (watercourse) at law until registration of first new plan of survey 102 Application of sdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 234 103 Current adopted natural feature rule (non-tidal) provision ............................ 234 104 Current adopted natural feature rule (non-tidal) exception provision. . . . . . . . . . . . . . . . . . . . . . . . . . . 235 105 No shift of boundary towards watercourse . . . . . . . . . 236 Subdivision 3 Locating non-tidal boundaries (watercourse) at law from registration of first new plan of survey 106 Application of sdiv 3 . . . . . . . . . . . . . . . . . . . . . . . . . . 237 107 Special requirement to support the operation of sdiv 3 ............................... 237 Page 17

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Contents 108 Boundary location criteria rule (non-tidal) provision . . 238 109 First exception for the boundary location criteria rule (non-tidal) provision (chief executive single lot declaration (non-tidal) exception) . . . . . . . . . . . . . . . . 239 110 Second exception for the boundary location criteria rule (non-tidal) provision (previous sudden change) . 241 Subdivision 4 Locating non-tidal boundaries (watercourse) at law from registration of subsequent new plan of survey 111 Application of sdiv 4 . . . . . . . . . . . . . . . . . . . . . . . . . . 242 112 Special requirement to support the operation of sdiv 4 .............................. 242 113 First new plan of survey adopted feature rule (non-tidal) ............................ 244 Subdivision 5 Locating non-tidal boundaries (watercourse) at law on coming into force of new source material 114 Application of sdiv 5 . . . . . . . . . . . . . . . . . . . . . . . . . . 244 115 Special requirement to support the operation of sdiv 5 ............................. 244 116 New source material adopted feature rule (non-tidal) .......................... 244 Subdivision 6 Locating non-tidal boundaries (lake) 117 Application of sdiv 6 . . . . . . . . . . . . . . . . . . . . . . . . . . 245 118 Special requirement to support the operation of sdiv 6 ............................. 245 119 Lake boundary rule. . . . . . . . . . . . . . . . . . . . . . . . . . . 245 Division 5 Miscellaneous issues in the non-tidal environment 120 Multiple lot declaration (non-tidal) provision . . . . . . . . 246 121 No compensation for operation of div 4 or this division ............................. 249 Division 6 Review of declaration decisions and appeals Subdivision 1 Right of appeal 122 Right of appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249 Subdivision 2 Internal review of decisions 123 Appeal process starts with internal review . . . . . . . . . 250 124 Applying for review . . . . . . . . . . . . . . . . . . . . . . . . . . . 250 125 Decision on reconsideration . . . . . . . . . . . . . . . . . . . . 250 Subdivision 3 Appeals Page 18

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Contents 126 Who may appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251 127 Procedure for an appeal to the court . . . . . . . . . . . . . 251 128 Powers of court on appeal . . . . . . . . . . . . . . . . . . . . . 251 129 Effect of decision of court on appeal . . . . . . . . . . . . . 252 130 Evidentiary provisions for appeal . . . . . . . . . . . . . . . . 252 216 Insertion of new s 134 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253 134 Delegations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253 217 Amendment of schedule (Dictionary) . . . . . . . . . . . . . . . . . . . . . . 253 Part 17 Amendment of Surveyors Act 2003 218 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256 219 Amendment of s 14 (Chairperson of board) . . . . . . . . . . . . . . . . . 256 220 Replacement of s 15 (Term of appointment) . . . . . . . . . . . . . . . . 257 15 Term of appointment. . . . . . . . . . . . . . . . . . . . . . . . . . 257 221 Amendment of s 19 (Vacation of office) . . . . . . . . . . . . . . . . . . . . 257 222 Amendment of s 36 (Eligibility for registration or registration endorsement--individuals). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257 223 Amendment of s 38 (Eligibility for registration and registration endorsement--corporations) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258 224 Amendment of s 45 (Procedural requirements for application) . . 258 225 Amendment of s 46 (Additional requirements for application by corporation) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259 226 Replacement of pt 12, hdg (Transitional provisions). . . . . . . . . . . 259 227 Replacement of pt 13, hdg (Repeal) . . . . . . . . . . . . . . . . . . . . . . 260 228 Insertion of new pt 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260 Part 13 Transitional provisions for Natural Resources and Other Legislation Amendment Act 2010 206 Definitions for pt 13. . . . . . . . . . . . . . . . . . . . . . . . . . . 260 207 Existing application for registration or renewal by corporation ............................. 260 208 Continuation of board members . . . . . . . . . . . . . . . . . 261 229 Amendment of sch 3 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 261 Part 18 Amendment of Torres Strait Islander Cultural Heritage Act 2003 230 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262 231 Amendment of s 34 (Native title party for an area). . . . . . . . . . . . 262 Part 19 Amendment of Torres Strait Islander Land Act 1991 232 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262 233 Amendment of s 3 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . 263 Page 19

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Contents 234 Amendment of s 17 (Beds and banks of watercourses and lakes) 263 Part 20 Amendment of Vegetation Management Act 1999 235 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263 236 Amendment of s 7 (Application of Act) . . . . . . . . . . . . . . . . . . . . . 263 Part 21 Amendment of Water Act 2000 237 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264 238 Insertion of new ch 1, pt 1 hdg . . . . . . . . . . . . . . . . . . . . . . . . . . . 264 239 Insertion of new ch 1, pt 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264 Part 2 Watercourses 5 Meaning of watercourse . . . . . . . . . . . . . . . . . . . . . . . 264 5A Meaning of outer bank . . . . . . . . . . . . . . . . . . . . . . . . 266 5B Declaration of outer bank . . . . . . . . . . . . . . . . . . . . . . 267 240 Omission of s 21 (Beds and banks forming boundaries of land are State property) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268 241 Amendment of s 279 (Ownership and management of certain quarry material) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268 242 Amendment of s 967 (Approval for development under Sustainable Planning Act 2009 is subject to approval under this Act) ....................................... 268 243 Insertion of new ch 8, pt 4B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268 Part 4B Special provision for Condamine and Balonne Resource Operations Plan 1003B Condamine and Balonne Resource Operations Plan amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269 244 Amendment of s 1006 (Declarations about watercourses). . . . . . 270 245 Amendment of s 1014 (Regulation-making power) . . . . . . . . . . . 270 246 Insertion of new s 1014A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270 1014A Special regulation-making power to support outer bank identification. . . . . . . . . . . . . . . . . . . . . . . . . . . . 270 247 Insertion of new ch 9, pt 5, div 14. . . . . . . . . . . . . . . . . . . . . . . . . 271 Division 14 Transitional provisions for Natural Resources and other Legislation Amendment Act 2010 1171 Continuing application of s 21 . . . . . . . . . . . . . . . . . . 271 1172 Transition for jurisdictional change for existing licence or permit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272 248 Amendment of sch 4 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 273 Part 22 Repeal and consequential and other amendments 249 Act repealed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277 250 Regulation repealed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277 Page 20

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Contents 251 Acts amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277 Schedule Consequential amendments . . . . . . . . . . . . . . . . . . . . . . . . . . 278 Aboriginal Cultural Heritage Act 2003 . . . . . . . . . . . . . . . . . . . . . 278 Biodiscovery Act 2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278 Environmental Protection Act 1994 . . . . . . . . . . . . . . . . . . . . . . . 279 Geothermal Exploration Act 2004 . . . . . . . . . . . . . . . . . . . . . . . . 279 Public Service Act 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280 Queensland Heritage Act 1992 . . . . . . . . . . . . . . . . . . . . . . . . . . 280 Recreation Areas Management Act 2006 . . . . . . . . . . . . . . . . . . 281 Statutory Bodies Financial Arrangements Act 1982. . . . . . . . . . . 281 Water Act 2000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281 Page 21

 


 

 

2010 A Bill for An Act to amend the Aboriginal Cultural Heritage Act 2003, the Aboriginal Land Act 1991, the Coastal Protection and Management Act 1995, the Dividing Fences Act 1953, the Fire and Rescue Service Act 1990, the Forestry Act 1959, the Forestry Regulation 1998, the Forestry Plantations Queensland Act 2006, the Forestry (State Forests) Regulation 1987, the Land Act 1994, the Land Title Act 1994, the Mineral Resources Act 1989, the State Development and Public Works Organisation Act 1971, the Survey and Mapping Infrastructure Act 2003, the Surveyors Act 2003, the Torres Strait Islander Cultural Heritage Act 2003, the Torres Strait Islander Land Act 1991, the Vegetation Management Act 1999 and the Water Act 2000 for particular purposes, and to make minor amendments of Acts as stated in the schedule for particular purposes

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 1 Preliminary [s 1] The Parliament of Queensland enacts-- 1 Part 1 Preliminary 2 Clause 1 Short title 3 This Act may be cited as the Natural Resources and Other 4 Legislation Amendment Act 2010. 5 Clause 2 Commencement 6 (1) The following provisions commence on a day to be fixed by 7 proclamation-- 8 parts 3, 4, 12, 15 to 17, 19 and 21 (other than sections 9 237 and 243) 10 section 72, to the extent it inserts section 131 11 sections 199 to 202 12 section 249 13 schedule, amendments of the Public Service Act 2008 14 and the Statutory Bodies Financial Arrangements Act 15 1982. 16 (2) The following provisions commence on the day an agreement 17 is first entered into between the Minister and a corporation 18 under the Forestry Act 1959, section 61QA-- 19 sections 19(5), 25, 32, 33, 44, 55, 66, 72 (other than to 20 the extent it inserts sections 121, 131 and 132), 73, 21 74(1), 88 to 93 and 95 22 schedule, amendment of the Biodiscovery Act 2004. 23 (3) The Minister must notify the day the Minister first enters into 24 an agreement with a corporation under the Forestry Act 1959, 25 section 61QA by gazette notice. 26 Page 24

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 2 Amendment of Aboriginal Cultural Heritage Act 2003 [s 3] Part 2 Amendment of Aboriginal 1 Cultural Heritage Act 2003 2 Clause 3 Act amended 3 This part amends the Aboriginal Cultural Heritage Act 2003. 4 Clause 4 Amendment of s 34 (Native title party for an area) 5 Section 34(1)(b)(i)-- 6 omit, insert-- 7 `(i) the person's claim has failed and-- 8 (A) the person's claim was the last claim 9 registered under the Register of Native Title 10 Claims for the area; and 11 (B) there is no other registered native title 12 claimant for the area; and 13 (C) there is not, and never has been, a native title 14 holder for the area; or'. 15 Part 3 Amendment of Aboriginal Land 16 Act 1991 17 Clause 5 Act amended 18 This part amends the Aboriginal Land Act 1991. 19 Clause 6 Amendment of s 20 (Beds and banks of watercourses 20 and lakes) 21 (1) Section 20, heading, `Beds and banks of watercourses'-- 22 omit, insert-- 23 Page 25

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 4 Amendment of Coastal Protection and Management Act 1995 [s 7] `Watercourses'. 1 (2) Section 20, `the bed and banks of a watercourse or lake only if 2 the bed and banks are'-- 3 omit, insert-- 4 `a watercourse or lake only to the extent the watercourse or 5 lake is'. 6 Clause 7 Amendment of schedule (Dictionary) 7 Schedule, definition bed and banks-- 8 omit. 9 Part 4 Amendment of Coastal 10 Protection and Management 11 Act 1995 12 Clause 8 Act amended 13 This part amends the Coastal Protection and Management Act 14 1995. 15 Clause 9 Amendment of s 123 (Development permits--right to use 16 and occupy) 17 Section 123(2), after `situated'-- 18 insert-- 19 `, other than land on the landward side of a tidal boundary or 20 right line tidal boundary'. 21 Clause 10 Amendment of schedule (Dictionary) 22 (1) Schedule-- 23 Page 26

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 5 Amendment of Dividing Fences Act 1953 [s 11] insert-- 1 `right line tidal boundary has the same meaning as in the 2 Land Act 1994. 3 tidal boundary has the same meaning as in the Survey and 4 Mapping Infrastructure Act 2003, part 7.'. 5 (2) Schedule, definition tidal works, item 1-- 6 omit, insert-- 7 `1 Tidal works means work (the relevant work) in, on or 8 above land under tidal water, or land that will or may be 9 under tidal water because of development on or near the 10 land, and work that is an integral part of the relevant 11 work, wherever located.'. 12 Part 5 Amendment of Dividing Fences 13 Act 1953 14 Clause 11 Act amended 15 This part amends the Dividing Fences Act 1953. 16 Clause 12 Insertion of new s 4A 17 After section 4-- 18 insert-- 19 `4A Act not to apply to State plantation forest etc. 20 `(1) This Act, other than this section, does not apply-- 21 (a) in relation to a State plantation forest, including a 22 licence area in a State plantation forest; or 23 (b) to a plantation licensee or plantation sublicensee. 24 Page 27

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 6 Amendment of Fire and Rescue Service Act 1990 [s 13] `(2) A plantation licensee or plantation sublicensee is not liable 1 under this Act to join in or contribute to the construction or 2 repair of a dividing fence under this Act. 3 `(3) In this section-- 4 licence area see the Forestry Act 1959, schedule 3. 5 plantation licensee see the Forestry Act 1959, schedule 3. 6 plantation sublicensee see the Forestry Act 1959, schedule 3. 7 State plantation forest see the Forestry Act 1959, schedule 3.'. 8 Part 6 Amendment of Fire and Rescue 9 Service Act 1990 10 Clause 13 Act amended 11 This part amends the Fire and Rescue Service Act 1990. 12 Clause 14 Amendment of s 61 (Interpretation and application of 13 division) 14 Section 61(3)-- 15 omit, insert-- 16 `(3) In this division-- 17 licence area see the Forestry Act 1959, schedule 3. 18 occupier of land includes, if there is no person in actual 19 occupation of the land-- 20 (a) the person charged by the owner or by law with the 21 management of the land; and 22 (b) if the land is a licence area-- 23 (i) if there is a the plantation sublicensee for the 24 licence area--the plantation sublicensee; or 25 Page 28

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 6 Amendment of Fire and Rescue Service Act 1990 [s 15] (ii) otherwise--the plantation licensee. 1 plantation licensee see the Forestry Act 1959, schedule 3. 2 plantation officer see the Forestry Act 1959, schedule 3. 3 plantation operator see the Forestry Act 1959, schedule 3. 4 plantation sublicensee see the Forestry Act 1959, schedule 5 3.'. 6 Clause 15 Amendment of s 66 (Fires in State forests etc.) 7 (1) Section 66(2)(b), after `State forest'-- 8 insert-- 9 `(other than a licence area)'. 10 (2) Section 66-- 11 insert-- 12 `(3) For subsection (1)(b), a person acting in the performance of 13 duties under the Forestry Act 1959 does not include-- 14 (a) a plantation operator; or 15 (b) a plantation officer.'. 16 Clause 16 Amendment of s 68 (Powers of occupier of entry etc.) 17 (1) Section 68(4)-- 18 renumber as section 68(5). 19 (2) Section 68-- 20 insert-- 21 `(4) If the occupier of land, or an employee, agent or contractor of 22 the occupier of land, is also a prescribed person, the reference 23 to a prescribed person in subsection (3) does not include the 24 occupier of land, or an employee, agent or contractor of the 25 occupier of land.'. 26 Page 29

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 17] Part 7 Amendment of Forestry Act 1 1959 2 Clause 17 Act amended 3 This part amends the Forestry Act 1959. 4 Clause 18 Insertion of new ss 14-15 5 Part 2-- 6 insert-- 7 `14 Joint Ministerial power 8 `(1) Until the end day, a reference in this Act to the Minister, the 9 chief executive or the chief executive (fire) (each a relevant 10 person) includes a reference to the Treasurer. 11 `(2) Subsection (1) does not limit the functions of a relevant 12 person or prevent the performance of a function by a relevant 13 person. 14 `(3) In this section-- 15 end day means the day declared by the Minister by gazette 16 notice as the end day for this section. 17 function includes power. 18 Treasurer means the Minister administering the Financial 19 Accountability Act 2009. 20 `15 Expiry of ss 14-15 21 `(1) Section 14 and this section expire 1 year after this section 22 commences. 23 `(2) However, before the end of the 1 year, a regulation may 24 extend the period before expiry to not more than 2 years after 25 this section commences.'. 26 Page 30

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 19] Clause 19 Amendment of s 17 (Appointment of officers) 1 (1) Section 17(1), after `Forest officers'-- 2 insert-- 3 `, plantation officers'. 4 (2) Section 17-- 5 insert-- 6 `(1A) The chief executive may make an appointment under 7 subsection (1) only if the chief executive is satisfied that the 8 person is appropriately qualified to perform the functions and 9 exercise the powers of a forest officer, plantation officer or 10 other officer.'. 11 (3) Section 17(2) and (3), after `forest officer'-- 12 insert-- 13 `or plantation officer'. 14 (4) Section 17-- 15 insert-- 16 `(2A) However, a person appointed as a plantation officer must be-- 17 (a) an employee of a plantation operator; and 18 (b) appointed for a specified licence area.'. 19 (5) Section 17, note-- 20 omit. 21 (6) Section 17-- 22 insert-- 23 `(4) A person appointed as a plantation officer stops being a 24 plantation officer if-- 25 (a) the person stops being an employee of a plantation 26 operator; or 27 (b) the delegation of power under section 96B to the 28 plantation operator who employs the plantation officer 29 Page 31

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 20] is ended by the chief executive by written notice given to 1 the plantation operator. 2 `(5) Nothing in subsection (4)(b) stops the person being 3 reappointed as a plantation officer by the chief executive or 4 someone other than the plantation operator exercising 5 delegated power. 6 `(6) The appointment of a person as a plantation officer is an 7 appointment under this Act and not under the Public Service 8 Act 2008. 9 `(7) In this section-- 10 appropriately qualified includes having appropriate training 11 or experience.'. 12 Clause 20 Insertion of new ss 18A-18C 13 After section 18-- 14 insert-- 15 `18A General powers of plantation officers 16 `(1) A plantation officer may exercise power under this Act, 17 including under a delegation, only within the licence area for 18 which the plantation officer is appointed. 19 `(2) A plantation officer may-- 20 (a) take away and dispose of a notice in the licence area that 21 has not been authorised by the chief executive for the 22 licence area; and 23 (b) require the production of any licence, permit, or other 24 authorisation under which a person claims to be entitled 25 to conduct an activity in the licence area that the person 26 is conducting and inspect, examine, and take copies of 27 the authorisation; and 28 (c) require the name and address of a person the plantation 29 officer finds committing, or whom the plantation officer 30 reasonably suspects of having committed, an offence 31 against this Act in the licence area; and 32 Page 32

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 20] (d) direct a person the plantation officer finds committing 1 an offence against this Act in the licence area to stop 2 committing the offence; and 3 (e) direct a person mentioned in paragraph (d) to leave the 4 licence area; and 5 (f) if the plantation officer reasonably believes, having 6 regard to particular circumstances or prevailing 7 conditions, that a person's presence in or near the 8 licence area involves a risk to the person's health or 9 safety or the health or safety of someone else, direct the 10 person to leave the licence area or the State forest. 11 Examples of particular circumstances or prevailing conditions for 12 paragraph (f)-- 13 tree felling 14 fire 15 storm 16 `(3) A person who fails to comply with a direction or requirement 17 lawfully given or made by a plantation officer under 18 subsection (2) without a reasonable excuse commits an 19 offence. 20 Maximum penalty--100 penalty units. 21 `(4) A person who is required under subsection (2)(c) to state the 22 person's name or address must not, without a reasonable 23 excuse, state a false name or address. 24 Maximum penalty--100 penalty units. 25 `(5) A person does not commit an offence against subsection (4) if 26 the person is not proved to have committed the offence he or 27 she was allegedly found committing or suspected of having 28 committed. 29 `(6) Subsections (1) and (2) do not limit the powers of a forest 30 officer under this Act. 31 `(7) In this section-- 32 commit, an offence, includes attempt to commit an offence. 33 Page 33

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 20] licence area includes part of the licence area. 1 State forest includes part of the State forest. 2 `18B Powers of plantation officers in relation to fire 3 `(1) If a plantation officer reasonably believes that a fire lit on a 4 licence area is, or is likely to be, a hazard to the licence area or 5 to a person or property in the licence area, the plantation 6 officer may-- 7 (a) put out the fire; or 8 (b) direct the person appearing to the plantation officer to be 9 in charge of the fire-- 10 (i) to put out the fire; or 11 (ii) to reduce the intensity of the fire in the way 12 reasonably required by the plantation officer. 13 `(2) If the plantation officer puts out a fire or directs a fire to be put 14 out, the plantation officer may also give a direction that 15 another fire must not be lit to replace the fire that is put out. 16 `(3) A person must not contravene a direction given under 17 subsection (1) or (2) without a reasonable excuse. 18 Maximum penalty--10 penalty units. 19 `(4) Subsections (1) and (2) do not limit the powers of a forest 20 officer under this Act. 21 `(5) In this section-- 22 licence area includes part of the licence area. 23 `18C Plantation operator and plantation officer are 24 persons performing duties under this Act only for 25 particular provisions 26 `In this Act, a reference to a person performing duties under 27 this Act includes a reference to a plantation operator or 28 plantation officer when performing duties under this Act only 29 in the following provisions-- 30 Page 34

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 21] (a) section 39(2)(a); 1 (b) section 84(4); 2 (c) section 86(1)(a) or (h); 3 (d) section 95(a) or (b); 4 (e) section 96.'. 5 Clause 21 Insertion of new s 20 6 After section 19-- 7 insert-- 8 `20 Retention of document produced to plantation officer 9 `(1) This section applies if a plantation officer makes a 10 requirement under section 18A(2)(b) (the requirement) for 11 the production of a document. 12 `(2) The document must be produced at the place and time stated 13 in the requirement. 14 `(3) The place stated in the requirement-- 15 (a) may be other than the place where the document is 16 ordinarily kept; but 17 (b) must be reasonable in the circumstances of the making 18 of the requirement. 19 `(4) The time stated in the requirement must be reasonable in the 20 circumstances of the making of the requirement. 21 `(5) To avoid any doubt, it is declared that-- 22 (a) the document must be produced in its original form; and 23 (b) the plantation officer may keep possession of the 24 document for the time the plantation officer reasonably 25 requires to exercise the plantation officer's powers under 26 section 18A(2)(b). 27 `(6) Until the document is returned, the plantation officer must 28 allow a person who would be entitled to possession of it, if it 29 Page 35

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 22] had not been retained by the plantation officer, to inspect it 1 and make copies of it.'. 2 Clause 22 Amendment of s 21 (Officers not to trade in timber etc.) 3 Section 21-- 4 insert-- 5 `(3) In this section-- 6 officer includes plantation officer.'. 7 Clause 23 Insertion of new s 32AA 8 Part 3, after section 32-- 9 insert-- 10 `32AA Chief executive to notify chief executive (lands) of 11 change to State forest 12 `The chief executive must notify the chief executive (lands) of 13 any change to the State forest under section 25, 27 or 32.'. 14 Clause 24 Insertion of new pt 3A 15 After part 3-- 16 insert-- 17 `Part 3A State plantation forest 18 `32A Declaration of land as State plantation forest 19 `(1) A regulation may declare a stated area of land that is a State 20 forest to be a State plantation forest. 21 `(2) If land that is State plantation forest stops being a State forest 22 or part of a State forest, the declaration of the land as a State 23 plantation forest is taken to have been revoked. 24 Page 36

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 24] `(3) To remove any doubt, it is declared that the declaration of land 1 as a State plantation forest does not affect the status of the 2 land as State forest.'. 3 `32B Particular areas of conservation value to be 4 removed from State plantation forest 5 `Each area of land in the State plantation forest specified for a 6 locality mentioned in column 1 of the following table in a plan 7 mentioned in column 2 of the table stops being State 8 plantation forest on the day specified for the area in column 3 9 of the table. 10 Column 1 Column 2 Column 3 Locality Plan Day area stops being State plantation forest Palen Creek Lots A,B,C,D & E on 1 July 2030 PLP0200 Palen Creek Lot A & B on PLP0359 1 July 2030 Mount Mee Lot J on PLP0893 1 July 2040 Yurol Lots D,E & I on PLP0952 1 July 2030 Oakview Lots B & C on PLP0220 1 July 2020 Brooweena Lot N on PLP1924 1 July 2030 Watalgan Lot A on PLP0898 1 July 2020 Bulburin Lot A on PLP0391 1 July 2030 Wongabel Lots A,B,C & D on 1 July 2050 PLP0191 Goodnight Scrub Lots A,B,C,D,E,F,G & H 1 July 2030 on PLP0169 Editor's note-- 11 Copies of plans mentioned in this table may be obtained for a fee at the 12 head office of the department in Brisbane when it is open for business. 13 Page 37

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 25] `32C Quarrying in State plantation forest 1 `The chief executive may not get or authorise a person (other 2 than a plantation licensee or plantation sublicensee) to get a 3 total of 5000t or more of quarry material, in a year, from an 4 area within a State plantation forest.'. 5 Clause 25 Omission of s 33AA (Application of pt 4 to a State 6 plantation forest) 7 Section 33AA-- 8 omit. 9 Clause 26 Amendment of s 34 (Use of State forests) 10 (1) Section 34-- 11 insert-- 12 `(2B) Subsections (1)(a) and (c), (2) and (2A) do not apply to 13 natural resource product in a licence area.'. 14 (2) Section 34(3), after `or authority'-- 15 insert-- 16 `(other than a plantation licence)'. 17 Clause 27 Amendment of s 34A (Specialised management within 18 State forests) 19 (1) Section 34A(a), after `a State forest', first mention-- 20 insert-- 21 `, other than a State plantation forest,'. 22 (2) Section 34A(b), after `a State forest'-- 23 insert-- 24 `, other than a State plantation forest,'. 25 Page 38

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 28] Clause 28 Amendment of s 34H (Self-registration camping areas) 1 Section 34H-- 2 insert-- 3 `(1A) A State plantation forest, or part of a State plantation forest, 4 can not be a self-registration camping area.'. 5 Clause 29 Amendment of s 35 (Granting of permit for land within 6 State forest) 7 Section 35-- 8 insert-- 9 `(1A) If a plantation licensee, plantation sublicensee, plantation 10 manager or plantation officer (the decision maker) exercising 11 power delegated to the decision maker under section 96B 12 makes a decision under subsection (1), the decision maker 13 must advise the applicant for the permit or the extension of the 14 permit that the applicant may apply for a review of the 15 decision under section 83A within 28 days if the applicant is 16 dissatisfied with the decision.'. 17 Clause 30 Amendment of s 37 (Particular authorities over State 18 forest, timber reserve or forest entitlement area) 19 Section 37-- 20 insert-- 21 `(5) Subsections (2A) and (3) do not limit the matters for which, or 22 the amount of, compensation payable or the persons to whom 23 compensation is payable under the Mining Acts and the GHG 24 Storage Act.'. 25 Clause 31 Amendment of s 39 (Interfering with forest products on 26 State forests etc.) 27 (1) Section 39(1), from `a lease' to `Storage Act.'-- 28 omit, insert-- 29 `-- 30 Page 39

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 32] (a) a lease, licence, permit, agreement or contract granted or 1 made under this Act, the Land Act 1994, the Mining 2 Acts or the GHG Storage Act; or 3 (b) a permit to light a fire on a licence area under the Fire 4 and Rescue Service Act 1990, section 65.'. 5 (2) Section 39(2)-- 6 omit, insert-- 7 `(2) This section does not apply to-- 8 (a) a person performing duties under this Act acting in the 9 administration of this Act; or 10 (b) a person acting under a plantation licence, plantation 11 sublicence or related agreement or in accordance with 12 an agreement entered into with a plantation licensee or 13 plantation sublicensee.'. 14 Clause 32 Replacement of s 43 (Application of pt 6 to forest 15 products from a State plantation forest) 16 Section 43-- 17 omit, insert-- 18 `43 Application of pt 6 to forest products from a licence 19 area 20 `This part does not affect the rights of a plantation licensee or 21 plantation sublicensee to deal with natural resource product, 22 or to get and use quarry material, under part 6D or a plantation 23 licence or plantation sublicence.'. 24 Clause 33 Amendment of s 46 (Sale of forest products or quarry 25 material) 26 Section 46(1AA)-- 27 omit. 28 Page 40

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 34] Clause 34 Amendment of s 55 (Licences to get forest products etc.) 1 Section 55-- 2 insert-- 3 `(2) If a plantation licensee, plantation sublicensee, plantation 4 manager or plantation officer (the decision maker) exercising 5 power delegated to the decision maker under section 96B 6 makes a decision under subsection (1), the decision maker 7 must advise the applicant for the permit that the applicant may 8 apply for a review of the decision under section 83A within 28 9 days if the applicant is dissatisfied with the decision.'. 10 Clause 35 Amendment of s 56 (Permits etc.) 11 Section 56-- 12 insert-- 13 `(4) If a plantation licensee, plantation sublicensee, plantation 14 manager or plantation officer (the decision maker) exercising 15 power delegated to the decision maker under section 96B 16 makes a decision under this section, the decision maker must 17 advise the applicant for the permit or the extension of the 18 permit that the applicant may apply for a review of the 19 decision under section 83A within 28 days if the applicant is 20 dissatisfied with the decision. 21 `(5) In this section, a reference to an authority, agreement or 22 contract does not include a plantation licence or plantation 23 sublicence.'. 24 Clause 36 Amendment of s 57 (Power of entry under licence or 25 permit) 26 Section 57-- 27 insert-- 28 `(7) In this section, a reference to an authority, agreement or 29 contract does not include a plantation licence or plantation 30 sublicence.'. 31 Page 41

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 37] Clause 37 Amendment of s 58 (Power to cancel, suspend, permit, 1 licence etc.) 2 Section 58-- 3 insert-- 4 `(7) In this section, a reference to an authority, agreement or 5 contract does not include a plantation licence or plantation 6 sublicence.'. 7 Clause 38 Amendment of s 59 (Transfer of permits etc.) 8 Section 59-- 9 insert-- 10 `(3) In this section, a reference to an agreement, contract or other 11 authority does not include a plantation licence or plantation 12 sublicence.'. 13 Clause 39 Amendment of s 60 (Failure to comply with provisions of 14 lease etc.) 15 Section 60-- 16 insert-- 17 `(3) In this section, a reference to an agreement, contract or other 18 authority does not include a plantation licence or plantation 19 sublicence.'. 20 Clause 40 Amendment of s 61H (Appeal to Land Court) 21 Section 61H(1), `this division'-- 22 omit, insert-- 23 `this part'. 24 Page 42

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 41] Clause 41 Amendment of s 61J (Agreement about natural resource 1 products) 2 Section 61J(4)-- 3 omit. 4 Clause 42 Amendment of s 61L (Definitions) 5 Section 61L, definition relevant provisions, paragraph (d), 6 after `65'-- 7 insert-- 8 `, 65A'. 9 Clause 43 Amendment of s 61N (Application of relevant provisions) 10 Section 61N(d), `and 65(2) and (3)'-- 11 omit, insert-- 12 `, 65(2) and 65A'. 13 Clause 44 Omission of pt 6C and s 61TW 14 Part 6C and section 61TW-- 15 omit. 16 Clause 45 Insertion of new pts 6D and 6E 17 Before part 7-- 18 insert-- 19 `Part 6D Plantation forestry 20 `Division 1 Preliminary 21 `61Q Definitions for pt 6D 22 `In this part-- 23 Page 43

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] compensation event see section 61RH(1). 1 plantation forestry, in relation to a licence area, means-- 2 (a) the production, on the licence area on an ongoing basis, 3 of natural resource product in the form of plantation 4 timber for commercial purposes; and 5 Examples-- 6 planting, maintaining and felling trees for sale 7 selling carbon storage or carbon sequestration rights in 8 plantation timber 9 selling rights to harvest timber 10 (b) the management of the licence area in a way consistent 11 with sustainable management practices for plantation 12 forests that are generally accepted in the Australian 13 plantation forestry industry at the relevant time. 14 relevant State land means all land (including roads and 15 reserves), other than freehold land or land contracted to be 16 granted in fee simple by the State. 17 `Division 2 Plantation licences 18 `61QA Agreements to deal with natural resource product etc. 19 `(1) The Minister may grant a corporation the right to deal with 20 natural resource product on specified State plantation forests 21 or specified parts of State plantation forests for the purpose of 22 plantation forestry and for incidental purposes under this Act 23 by entering into an agreement (plantation licence) with the 24 corporation (plantation licensee). 25 `(2) Without limiting subsection (1), a plantation licence may 26 contain terms dealing with the following matters-- 27 (a) the grant to the plantation licensee of an exclusive right 28 to deal with, including get and sell, natural resource 29 product in the licence area; 30 Page 44

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] (b) the grant to the plantation licensee of a right to get and 1 use quarry material from the licence area; 2 (c) the plantation licensee's right to enter and remain in, and 3 use, the licence area; 4 (d) the plantation licensee's right to make roads and tracks 5 in the licence area; 6 (e) the management of particular areas in the licence area, 7 including by restricting or excluding the exercise of 8 rights mentioned in paragraphs (a) and (b) in the areas; 9 Examples of particular areas-- 10 native forest areas that border plantation areas and protect 11 them against fire 12 native forest areas and grassed areas that border and protect 13 watercourses 14 unformed plantation forest roads 15 (f) the rehabilitation of land that is, or is to be, removed 16 from the licence area. 17 `(3) The plantation licence is valid, binding and enforceable 18 according to its terms despite not having been registered. 19 `(4) The Minister can not enter into more than 1 plantation licence 20 over the same area. 21 `(5) No fee is payable under this Act in relation to a plantation 22 licensee's right to get and use quarry material under its 23 plantation licence. 24 `(6) If, after a plantation licence is entered into, land forming part, 25 or all, of the licence area for the plantation licence stops being 26 State plantation forest, the land also stops being licence area. 27 `(7) To remove any doubt, it is declared that a right of a plantation 28 licensee to enter and remain in, and use, the licence area under 29 a plantation licence is not a right of exclusive possession and, 30 subject to this Act, is coextensive with the lawful rights of 31 members of the public and others to enter and remain in, and 32 use, the licence area. 33 Page 45

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] `61QB Related agreements 1 `(1) The chief executive, the chief executive (fire) or the fire 2 commissioner (individually or in any combination) may enter 3 into 1 or more agreements (related agreements) with a 4 plantation licensee or a plantation sublicensee about 5 operational and other matters relevant to the use, maintenance 6 and management of the licence area. 7 `(2) Without limiting subsection (1), a related agreement may 8 contain terms dealing with the following matters-- 9 (a) fire control; 10 (b) pest control; 11 (c) constructing and maintaining roads and tracks in the 12 licence area and other access roads; 13 (d) getting and using quarry material from the licence area; 14 (e) arrangements relating to access over relevant State land 15 as mentioned in section 61QL. 16 `61QC Plantation licence is an interest in land 17 `It is declared that a plantation licence is in the nature of a 18 profit a prendre and it and a plantation sublicence confer an 19 interest in land. 20 `61QD Sale of natural resource product 21 `A plantation licence or plantation sublicence may confer on a 22 plantation licensee or plantation sublicensee a right to contract 23 with other persons for the sale of natural resource product 24 from the licence area. 25 `61QE Statutory obligations 26 `(1) Without limiting any other obligations of a plantation licensee 27 under this Act, the plantation licence or a related agreement, 28 the plantation licensee has the following obligations-- 29 Page 46

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] (a) to use the licence area for the purpose of plantation 1 forestry; 2 (b) to not interfere with the lawful use of the licence area by 3 members of the public and others unless it is reasonably 4 required for the plantation licensee's use of the licence 5 area for the purpose of plantation forestry or an 6 incidental purpose. 7 Examples of when interfering with use of the licence area might be 8 reasonably required-- 9 to protect persons from injury when tree felling in the 10 licence area 11 to protect an area of young trees at risk of damage because 12 of careless behaviour or general use of the area 13 to protect unformed roads and tracks from traffic damage 14 after heavy rain 15 `(2) The chief executive may require a plantation licensee to report 16 to the chief executive at any time about the plantation 17 licensee's obligations, or a particular aspect of the plantation 18 licensee's obligations, under subsection (1). 19 `(3) Nothing in this section requires a plantation licensee to plant 20 trees on an area shown in a plan mentioned in section 32B or 21 on an unformed plantation forest road. 22 `61QF Rights under a plantation licence 23 `(1) A right conferred on a plantation licensee under this Act, the 24 plantation licence or a related agreement may be exercised by 25 the plantation licensee's employees, agents, contractors, 26 customers and invitees. 27 `(2) Subsection (1) is subject to a contrary intention expressed or 28 implied in this Act, the plantation licence or related 29 agreement. 30 `(3) In this section-- 31 right does not include the performance of a function delegated 32 under section 96B. 33 Page 47

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] `61QG Appointment of plantation manager 1 `A plantation licensee may, with the Minister's written 2 approval, appoint a person as the plantation manager for the 3 licence area or a part of the licence area. 4 `61QH Acts and omissions of plantation sublicensee or 5 plantation manager etc. 6 `(1) Subsection (2) applies if any of the following persons does an 7 act or makes an omission that if done or omitted to be done by 8 a plantation licensee would be a contravention of an 9 obligation of the plantation licensee under this Act, the 10 plantation licence or a related agreement-- 11 (a) a plantation sublicensee; 12 (b) a plantation manager; 13 (c) an employee, agent, contractor, customer or invitee of a 14 plantation licensee, plantation sublicensee or plantation 15 manager. 16 `(2) The act or omission is taken also to be the act or omission of 17 the plantation licensee. 18 `61QI Plantation licence may be transferred 19 `(1) A plantation licensee may transfer its rights and obligations 20 under a plantation licence to another corporation (new 21 licensee) only with the Minister's written approval. 22 `(2) A transfer of a plantation licence is effective, on its 23 registration, to transfer the obligations of the plantation 24 licensee under the plantation licence to the new licensee 25 despite any rule of law to the contrary. 26 `(3) To remove any doubt, it is declared that part of a plantation 27 licence can not be transferred. 28 Note-- 29 See division 7 for provisions about the division of a plantation licence. 30 Page 48

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] `61QJ Related agreements may be transferred 1 `(1) A plantation licensee that transfers its interest in a plantation 2 licence to another corporation (new licensee) as provided 3 under section 61QI may also transfer a related agreement to 4 the new licensee-- 5 (a) with the chief executive's approval; and 6 (b) if permitted under the plantation licence and the related 7 agreement. 8 `(2) A transfer of a related agreement in accordance with 9 subsection (1) is effective to transfer the obligations of the 10 plantation licensee under the related agreement to the new 11 licensee despite any rule of law to the contrary. 12 `61QK Amending a plantation licence 13 `(1) A plantation licence may be amended only with the Minister's 14 written approval. 15 `(2) However, the amendment must not add a party to or remove a 16 party from the plantation licence. 17 `(3) The Minister may-- 18 (a) refuse to approve the amendment; or 19 (b) approve the amendment on the conditions the Minister 20 considers appropriate; or 21 (c) approve the amendment unconditionally. 22 `(4) If the Minister decides not to approve the amendment, the 23 Minister must-- 24 (a) give the plantation licensee written notice of the 25 decision and the reasons for the decision; and 26 (b) give any plantation sublicensee written notice of the 27 decision. 28 `(5) An amendment of a plantation licence approved by the 29 Minister must be registered. 30 Page 49

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] `61QL Plantation licensee's rights of access over relevant 1 State land 2 `(1) The chief executive may grant to a plantation licensee the 3 rights of access over relevant State land, and to State-owned 4 infrastructure on relevant State land, that are necessary for the 5 exercise of the plantation licensee's rights or obligations 6 under this Act, the plantation licence or a related agreement. 7 Note-- 8 Access rights are also exercisable by a plantation sublicensee and 9 employees, agents, contractors, customers and invitees of a plantation 10 licensee or plantation sublicensee. See sections 61QF and 61QP. 11 `(2) The access right may be granted by licence or permit, or under 12 a related agreement, or in any other way agreed by the chief 13 executive and the plantation licensee. 14 `(3) In deciding the nature and extent of an access right over 15 relevant State land, the chief executive must consider the 16 following matters-- 17 (a) whether there is a usable road giving practical access; 18 (b) the means of access before the land became a licence 19 area; 20 (c) the use or proposed use of the relevant State land over 21 which access is proposed; 22 (d) whether the licence area is completely or partly 23 surrounded by the relevant State land through which 24 access is to be given. 25 `(4) If the chief executive and the plantation licensee do not agree 26 on the grant of reasonable access rights under this section, the 27 plantation licensee's access rights are to be decided by the 28 Minister. 29 `(5) An access right given to a plantation licensee under this 30 section is binding on, and must be given effect by, all persons 31 having an interest in the relevant State land over which the 32 right is given. 33 `(6) Nothing in this section requires the chief executive or the 34 Minister to grant rights of access over land that is part of 35 Page 50

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] relevant State land if the grant of the right would be 1 inconsistent with the rights of the holder of an interest in the 2 land previously granted by or for the State. 3 `61QM Unformed plantation forest roads 4 `(1) An unformed plantation forest road is taken to be part of the 5 State forest, State plantation forest and the licence area for 6 this Act and the plantation licence until the road construction 7 date for the unformed plantation forest road. 8 `(2) The relevant road authority must give the chief executive at 9 least 6 months written notice of its intention to use an 10 unformed plantation forest road for road purposes and specify 11 the date on which the construction of the road is to begin. 12 `(3) As soon as practicable after receiving notice under subsection 13 (2), the chief executive must give written notice to the 14 plantation licensee and any plantation sublicensee for the 15 licence area of-- 16 (a) the road authority's intention to construct a road; and 17 (b) the date specified by the road authority as the date on 18 which the construction of the road is to begin. 19 `(4) An unformed plantation forest road stops being part of the 20 State forest, State plantation forest and the licence area for 21 this Act on the road construction date. 22 `(5) For the definition unformed plantation forest road, a 23 dedicated road is to be taken to be within the outer boundaries 24 of a licence area if the dedicated road-- 25 (a) separates lands forming the licence area, or part of the 26 licence area; or 27 (b) is surrounded by the licence area. 28 `(6) However, if a dedicated road continues beyond the licence 29 area, the dedicated road is taken to be within the outer 30 boundaries of the licence area only to the extent that it is 31 within a notional boundary formed by a line drawn directly 32 Page 51

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] across the dedicated road at the extremities of the outer 1 boundaries of the lands it separates. 2 `(7) In this section-- 3 dedicated road means land dedicated as a road under the Land 4 Act 1994. 5 road authority, for an unformed plantation forest road, 6 means-- 7 (a) if the unformed plantation forest road is a 8 State-controlled road--the chief executive of the 9 department in which the Transport Infrastructure Act 10 1994 is administered; or 11 (b) otherwise--the local government for the local 12 government area in which the unformed plantation 13 forest road is situated. 14 road construction date, for an unformed plantation forest 15 road, is the date specified in the written notice given to a 16 plantation licensee and any plantation sublicensee under 17 subsection (3)(b). 18 unformed plantation forest road means a dedicated road 19 taken to be within the outer boundaries of a licence area that, 20 immediately before the grant of a plantation licence for the 21 licence area-- 22 (a) is not used by the public as a road; and 23 (b) is planted with plantation timber or is otherwise used for 24 plantation forestry. 25 `61QN Chief executive to identify unformed plantation 26 forest roads for s 61QM 27 `(1) The chief executive may, after a plantation licence is entered 28 into, identify and record the boundaries of unformed 29 plantation forest roads within the licence area for section 30 61QM. 31 `(2) The identification may be done in any way that is sufficient to 32 identify the unformed plantation forest roads. 33 Page 52

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] `(3) If an unformed plantation forest road is identified in a way 1 that allows it to be included in the State digital cadastral 2 dataset under the Survey and Mapping Infrastructure Act 3 2003, a digital graphic representation of the road and the other 4 information required under section 46(1)(c) and (d) of that 5 Act must be included in the dataset. 6 `(4) Until a digital graphic representation of the road and the other 7 information is recorded in the State digital cadastral dataset, a 8 declaration by the chief executive that land is or is not an 9 unformed plantation forest road for section 61QM is evidence 10 of the matter. 11 `Division 3 Plantation sublicences 12 `61QO Approval 13 `(1) A plantation licensee may grant a corporation (plantation 14 sublicensee) a sublicence of its plantation licence only under 15 this Act. 16 `(2) The plantation licensee grants a sublicence under this Act by 17 entering into an agreement (plantation sublicence) under 18 which all of the plantation licensee's rights under its 19 plantation licence in relation to all or part of the licence area 20 are granted to the plantation sublicensee for a term of years 21 that is less than the unexpired term of the plantation licence. 22 `(3) However, a plantation licensee may enter into a plantation 23 sublicence only with the Minister's written approval. 24 `(4) The Minister may-- 25 (a) refuse to approve a proposed plantation sublicence; or 26 (b) approve the entering into of the proposed plantation 27 sublicence on the conditions the Minister considers 28 appropriate; or 29 Example of a condition-- 30 that the plantation sublicensee enter into a related 31 agreement 32 Page 53

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] (c) approve the entering into of the proposed plantation 1 sublicence unconditionally. 2 `(5) If the Minister decides not to approve the entering into of the 3 proposed plantation sublicence, the plantation licensee must 4 be given written notice of the decision and the reasons for the 5 decision. 6 `61QP Rights under the plantation sublicence 7 `(1) If a plantation sublicence is entered into with the Minister's 8 approval, a right conferred on the plantation licensee under 9 this Act, the plantation licence or a related agreement is also 10 taken to have been conferred on, and may be exercised by, the 11 plantation sublicensee. 12 `(2) Without limiting subsection (1), a right conferred on a 13 plantation sublicensee under this Act, the plantation licence, 14 the plantation sublicence or a related agreement may be 15 exercised by the plantation sublicensee's employees, agents, 16 contractors, customers and invitees. 17 `(3) Subsection (2) is subject to a contrary intention expressed or 18 implied in the plantation licence, plantation sublicence or 19 related agreement. 20 `(4) In this section-- 21 right does not include the performance of a function delegated 22 under section 96B. 23 `61QQ Appointment of plantation manager 24 `A plantation sublicensee may, with the Minister's written 25 approval, appoint a person as the plantation manager for the 26 licence area or part of the licence area. 27 `61QR Plantation sublicence may be transferred 28 `(1) A plantation sublicensee may transfer its rights and 29 obligations under a plantation sublicence to another 30 Page 54

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] corporation (new sublicensee) only with the Minister's 1 written approval. 2 `(2) A transfer of a plantation sublicence approved by the Minister 3 must be registered. 4 `(3) A transfer of a plantation sublicence has effect, on its 5 registration, to transfer the obligations of the plantation 6 sublicensee under the plantation sublicence to the new 7 sublicensee despite any rule of law to the contrary. 8 `61QS Related agreements may be transferred 9 `(1) A plantation sublicensee that transfers its interest in a 10 plantation sublicence to another corporation (new 11 sublicensee) as provided under section 61QR may also 12 transfer a related agreement to the new sublicensee-- 13 (a) with the chief executive's approval; and 14 (b) if permitted under the plantation licence, the plantation 15 sublicence and the related agreement. 16 `(2) A transfer of a related agreement in accordance with 17 subsection (1) is effective to transfer the obligations of the 18 plantation sublicensee under the agreement to the new 19 sublicensee despite any rule of law to the contrary. 20 `61QT Amending a plantation sublicence 21 `(1) A plantation sublicence may be amended only with the 22 Minister's written approval. 23 `(2) However, the amendment must not add a party to or remove a 24 party from the plantation sublicence. 25 `(3) The Minister may-- 26 (a) refuse to approve the amendment; or 27 (b) approve the amendment on the conditions the Minister 28 considers appropriate; or 29 (c) approve the amendment unconditionally. 30 Page 55

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] `(4) If the Minister decides not to approve the amendment, the 1 Minister must give the plantation licensee and plantation 2 sublicensee written notice of the decision and the reasons for 3 the decision. 4 `(5) An amendment of a plantation sublicence approved by the 5 Minister must be registered. 6 `61QU Validity of plantation sublicence or amendment of 7 plantation sublicence against mortgagee 8 `A plantation sublicence or an amendment of a plantation 9 sublicence entered into or made after the registration of a 10 mortgage of the plantation licence or plantation sublicence is 11 valid against the mortgagee only if the mortgagee consented 12 to the plantation sublicence or amendment before its 13 registration. 14 `Division 4 Mortgages 15 `61QV Mortgages require Ministerial approval 16 `(1) A plantation licensee or plantation sublicensee may grant a 17 mortgage over its rights under a plantation licence or 18 plantation sublicence only with the Minister's written 19 approval. 20 `(2) A plantation licensee or plantation sublicensee that mortgages 21 its interest in a plantation licence or plantation sublicence with 22 the Minister's approval may also grant a mortgage over its 23 interest in a related agreement to the mortgagee-- 24 (a) with the chief executive's written approval; and 25 (b) if not prohibited by the related agreement. 26 Page 56

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] `Division 5 Ownership of improvements 1 `61QW Application of division 2 `(1) This division applies if-- 3 (a) equipment or improvements are taken, constructed or 4 placed on a licence area by the plantation licensee or 5 plantation sublicensee; and 6 (b) the equipment or improvements were taken, constructed 7 or placed on the land for the purpose of plantation 8 forestry or an incidental purpose. 9 `(2) In this section-- 10 equipment includes machinery and plant. 11 `61QX Ownership of equipment and improvements 12 `(1) While the equipment or improvements are on the land, they 13 are the property of the person who took, constructed or placed 14 them on the land, unless that person otherwise agrees. 15 `(2) Subsection (1) applies despite-- 16 (a) the equipment or improvements having become part of 17 the land; or 18 (b) the sale or other disposal of the land. 19 `(3) This section applies despite-- 20 (a) an Act or law of a State; or 21 (b) a contract, covenant or claim of right under a law of a 22 State. 23 Page 57

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] `Division 6 Cancellation 1 `61QY Show cause notice for cancellation of plantation 2 licence 3 `(1) This section applies if the Minister reasonably believes that a 4 plantation licensee is contravening its obligations under 5 section 61QE(1) in relation to the licence area or a part of the 6 licence area. 7 `(2) The Minister may give the plantation licensee a notice (show 8 cause notice)-- 9 (a) stating-- 10 (i) the Minister proposes to cancel the plantation 11 licence for the licence area or part of the licence 12 area; and 13 (ii) that no compensation will be payable in relation to 14 the cancellation; and 15 (b) stating the reasons for the proposed cancellation; and 16 (c) if the Minister proposes to cancel the plantation licence 17 for part of the licence area, identifying the part; and 18 (d) inviting the plantation licensee to show within a stated 19 period of at least 90 days (show cause period) why the 20 plantation licence for the licence area or part should not 21 be cancelled. 22 `61QZ Representations about show cause notice 23 `(1) The plantation licensee may make written representations to 24 the Minister about the show cause notice within the show 25 cause period. 26 `(2) The Minister must consider all written representations (the 27 accepted representations) made under subsection (1). 28 Page 58

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] `61R Ending show cause process without further action 1 `(1) This section applies if, after considering the accepted 2 representations for the show cause notice, the Minister 3 believes that the plantation licensee is complying with its 4 obligations under section 61QE(1). 5 `(2) The Minister must not take any further action about the show 6 cause notice. 7 `(3) The Minister must also, as soon as practicable after coming to 8 the belief, give notice to the plantation licensee that no further 9 action is to be taken about the show cause notice. 10 `61RA Cancellation of plantation licence for licence area or 11 part 12 `(1) This section applies if, after considering the accepted 13 representations for the show cause notice, the Minister-- 14 (a) still believes that the plantation licensee is contravening 15 its obligations under section 61QE(1); and 16 (b) believes cancellation of the plantation licence for the 17 licence area or part of the licence area is warranted. 18 `(2) This section also applies if there are no accepted 19 representations for the show cause notice. 20 `(3) The Minister may decide to cancel the plantation licence for 21 the licence area or part. 22 `(4) If the Minister decides to cancel the plantation licence for the 23 licence area or part, the Minister must advise the plantation 24 licensee of the decision as soon as practicable after making it. 25 `(5) The Minister must lodge with the chief executive (lands) a 26 cancellation of a plantation licence for the licence area or part. 27 Note-- 28 The chief executive (lands) may require the lodgement of a sketch plan 29 for the cancellation. See section 61RO(5). 30 `(6) The chief executive (lands) must register the cancellation on 31 the register. 32 Page 59

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] `(7) To remove any doubt, it is declared that if the plantation 1 licence for a licence area or part of a licence area is cancelled, 2 the area or part stops being licence area. 3 `Division 7 Surrender or division of plantation 4 licence 5 `61RB Surrender of plantation licence or part of a 6 plantation licence 7 `(1) A plantation licensee may apply to the Minister to surrender a 8 plantation licence or part of a plantation licence. 9 `(2) An application for surrender of a plantation licence or part of 10 a plantation licence must be accompanied by the written 11 consent of-- 12 (a) each registered mortgagee of the plantation licence and 13 any plantation sublicence of the affected area; and 14 (b) any plantation sublicensee of the affected area. 15 `(3) The Minister may approve, or refuse, the application at the 16 Minister's discretion. 17 `(4) Without limiting the Minister's discretion, the Minister may 18 refuse the application until the affected area is rehabilitated to 19 the Minister's satisfaction. 20 `(5) If the Minister approves the application, the plantation 21 licensee must lodge with the chief executive (lands)-- 22 (a) a surrender of a plantation licence; and 23 (b) the written consent of all persons with a registered 24 interest in the plantation licence. 25 Note-- 26 The chief executive (lands) may require the lodgement of a sketch plan 27 for the surrender of part of a plantation licence. See section 61RO(5). 28 `(6) In this section-- 29 Page 60

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] affected area means the licence area or part of the licence area 1 for the plantation licence that is, or will be, removed from the 2 licence area if the application to surrender the licence area or 3 part is approved. 4 `61RC Application for division 5 `(1) A plantation licensee may apply (application for division) to 6 the Minister for approval-- 7 (a) to surrender part of its plantation licence (original 8 plantation licence); and 9 (b) to be granted a right to deal with natural resource 10 product, on the affected area, for the purpose of 11 plantation forestry and for incidental purposes under 12 this Act. 13 Note for paragraph (b)-- 14 This right is granted by entering into an agreement with the 15 Minister under section 61QA(1). 16 `(2) The application must be made in the approved form and be 17 accompanied by-- 18 (a) a statement of the plantation licensee's reasons for 19 seeking the division; and 20 Example of a reason-- 21 The plantation licensee wishes to be granted a new plantation 22 licence for the affected area and to seek approval to transfer the 23 new plantation licence for the affected area. 24 (b) evidence that the affected area is sustainable as a 25 commercially viable forestry plantation; and 26 (c) information identifying the affected area; and 27 (d) the written consent of all persons with a registered 28 interest in the plantation licence. 29 `(3) In this section-- 30 affected area means the part of the licence area for the 31 plantation licence that is, or will be, removed from the licence 32 Page 61

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] area if the application to surrender part of the plantation 1 licence is approved. 2 `61RD Deciding the application 3 `(1) The Minister must decide whether to approve the application 4 for division. 5 `(2) In deciding the application, the Minister must be satisfied 6 that-- 7 (a) the affected area is sustainable as a commercially viable 8 forestry plantation; and 9 (b) consents have been given by-- 10 (i) each registered mortgagee of the plantation licence 11 and any plantation sublicence of the affected area; 12 and 13 (ii) each plantation sublicensee of the affected area. 14 `(3) The Minister must also consider-- 15 (a) the public interest; and 16 (b) the extent to which the plantation licensee has complied 17 with the original plantation licence. 18 `(4) The Minister can not approve the surrender under the 19 application and refuse to grant the right under this Act as 20 mentioned in section 61RC(1)(b). 21 `61RE Approving the application 22 `(1) If the Minister approves the application for division, the 23 agreement to be entered into under section 61QA(1) for the 24 affected area must be on the same terms as the original 25 plantation licence (other than the description of the licence 26 area) unless otherwise agreed by the parties. 27 `(2) However, a proposed plantation licence for the affected area-- 28 (a) must not be for a term of years longer than the unexpired 29 term of the original plantation licence; and 30 Page 62

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] (b) may include a provision linking it and the original 1 plantation licence in the event of default or termination. 2 `(3) Subsection (1) does not apply in relation to any obligation that 3 has been fully performed by the plantation licensee under the 4 original plantation licence. 5 `61RF Notice of decision 6 `(1) If the Minister decides to approve the application for division, 7 the Minister must give the applicant written notice of the 8 decision. 9 `(2) If the Minister decides to refuse the application, the applicant 10 must be given a written notice of the decision and the reasons 11 for it. 12 `61RG Minister and the plantation licensee may enter into 13 new plantation licence etc. 14 `(1) If the Minister approves the application for division, the 15 Minister must, if requested by the applicant within 3 months 16 after the approval is given, enter into an agreement as 17 mentioned in section 61RC(1)(b) for the affected area (new 18 plantation licence). 19 `(2) On entering into the new plantation licence-- 20 (a) the affected area stops being part of the licence area of 21 the original plantation licence; and 22 (b) the Minister and the applicant must do everything 23 necessary to lodge for registration a surrender of a 24 plantation licence for the affected area. 25 `(3) The Minister and the applicant may also amend a related 26 agreement or enter into a new related agreement about 27 operational and other matters relevant to the use and 28 maintenance of the licence areas. 29 `(4) The new plantation licence is subject to all relevant registered 30 interests to which the affected area of the original plantation 31 licence was subject with the same priorities. 32 Page 63

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] `Division 8 Compensation 1 `61RH Events that are compensation events 2 `(1) A plantation licensee and any plantation sublicensee (each a 3 claimant) may claim compensation under this division for any 4 of the following events (each a compensation event) 5 happening in relation to the licence area for the plantation 6 licence or plantation sublicence-- 7 (a) an unformed plantation forest road, taken to be part of 8 the licence area for this Act under section 61QM, stops 9 being part of the licence area on the road construction 10 date nominated for the road by the chief executive under 11 that section; 12 (b) the chief executive grants, makes or extends any of the 13 following over the licence area or part of the licence 14 area-- 15 (i) a permit under section 35(1); 16 (ii) a licence under section 55(1); 17 (iii) a permit, licence, lease, or other authority, or an 18 agreement or contract under section 56(1); 19 (iv) a permit under section 73(2); 20 (c) a term lease, as mentioned in section 35(5), is granted 21 over the licence area or part of the licence area under the 22 Land Act 1994; 23 (d) subject to section 61RF, land forming part, or all, of the 24 licence area stops being a licence area under section 25 61QA(6); 26 (e) an easement is created under an Act over land in the 27 licence area; 28 (f) a collection authority is issued under the Biodiscovery 29 Act 2004 authorising its holder to take native biological 30 material for biodiscovery from the licence area. 31 Page 64

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] `(2) Compensation is payable under subsection (1)(b), (c), (e) and 1 (f) only if the compensation event materially and adversely 2 interferes with the claimant's ability to use the licence area for 3 the purpose of plantation forestry. 4 `(3) Also, compensation is not payable for a compensation event if 5 the compensation event results from the exercise by a 6 claimant, a plantation manager appointed by the claimant or a 7 plantation officer employed by the claimant or the plantation 8 manager of power delegated to the claimant, plantation 9 manager or plantation officer under section 96B. 10 `(4) Compensation can not be claimed or paid more than once in 11 relation to the same matter. 12 Example-- 13 A plantation licensee can not claim compensation under this Act and 14 another Act or under this Act and a Commonwealth Act in relation to 15 the same matter. 16 `(5) In this section-- 17 create includes grant, take and acquire. 18 `61RI Events that are not compensation events 19 `A plantation licensee or plantation sublicensee may not claim 20 compensation under this division for any of the following 21 events happening in relation to the licence area for the 22 plantation licence or plantation sublicence-- 23 (a) land forming part, or all, of the licence area stops being 24 State plantation forest under section 32B; 25 Note-- 26 See also section 61QA(6). 27 (b) the plantation licence for the licence area or part of the 28 licence area is cancelled under section 61RA; 29 (c) land forming part, or all, of the licence area is 30 surrendered under section 61RB. 31 Page 65

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] `61RJ Chief executive to give notice of compensation 1 events to the plantation licensee 2 `As soon as practicable after becoming aware of a proposed 3 compensation event, or the happening of a compensation 4 event, mentioned in section 61RH(1), the chief executive must 5 give to the plantation licensee and any plantation sublicensee 6 affected by the compensation event written notice of-- 7 (a) the proposed compensation event or compensation 8 event; and 9 (b) details of the extent to which the compensation event 10 will affect, or affects, the licence area. 11 `61RK Compensation to be assessed under applied 12 provisions of the Acquisition of Land Act 1967 in 13 absence of agreement 14 `(1) If the chief executive and the plantation licensee and any 15 plantation sublicensee can not agree on an amount payable as 16 compensation for a compensation event, compensation is to 17 be assessed and decided under the Acquisition of Land Act 18 1967, part 4 (the compensation provisions) as applied under 19 this section. 20 `(2) The compensation provisions apply as if-- 21 (a) the State were the constructing authority; and 22 (b) a reference to land includes land in a licence area; and 23 (c) the plantation licensee and any plantation sublicensee 24 were persons who have a right to claim compensation; 25 and 26 (d) a reference to land taken were a reference to-- 27 (i) if a licence area suffers a net reduction in size 28 because of a compensation event--the land that 29 stopped being part of the licence area because of 30 the compensation event; or 31 (ii) otherwise--the land in the licence area directly 32 affected by the compensation event; and 33 Page 66

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] (e) a reference to the day the land was taken were a 1 reference to the day the compensation event had effect 2 in relation to the licence area; and 3 (f) a reference to the serving of a notice of intention to 4 resume on the claimant were a reference to the giving of 5 written notice under section 61RJ; and 6 (g) a reference to a gazette resumption notice were a 7 reference to the document under which the licence area 8 is, or is to be, reduced or affected by the compensation 9 event. 10 `(3) In applying the compensation provisions, the compensation 11 provisions must be read with any other necessary or 12 convenient changes. 13 `(4) For the compensation provisions, an extract from the register 14 is proof of the plantation licensee's or plantation sublicensee's 15 interest in the land. 16 `(5) If the compensation event is an event mentioned in section 17 61RH(1)(a), compensation must be assessed and decided 18 under the compensation provisions having regard only to the 19 market value of the natural resource product on the unformed 20 plantation forest road on the nominated road construction 21 date. 22 `Part 6E Registration of interests in 23 State plantation forests 24 `Division 1 Preliminary 25 `61RL Definitions for pt 6E 26 `In this part-- 27 Page 67

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] plantation licence sketch plan means a plan prepared in 1 accordance with directions under section 61RU(2)(b) 2 identifying a licence area or part of a licence area. 3 sketch plan means a plantation licence sketch plan. 4 `Division 2 Register 5 `61RM Register of plantation licences 6 `The chief executive (lands) must keep a register of plantation 7 licences. 8 `61RN Form of register 9 `(1) The chief executive (lands) may keep the register in the form 10 (including in digital form) the chief executive (lands) 11 considers appropriate. 12 `(2) Without limiting subsection (1), the chief executive (lands) 13 may change the form in which the register or part of the 14 register is kept. 15 `61RO Registration of documents 16 `(1) The grant of a plantation licence must be registered in-- 17 (a) the register; and 18 (b) the register of State forests kept under the Land Act 19 1994. 20 `(2) If a plantation licence is affected by any of the following 21 dealings, a document must be registered in the register to 22 record the dealing-- 23 (a) an amendment of the plantation licence; 24 (b) a sublicence of the plantation licence; 25 (c) an amendment of the plantation sublicence; 26 (d) a transfer of the plantation licence; 27 Page 68

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] (e) a transfer of a plantation sublicence; 1 (f) a transfer of a registered mortgage; 2 (g) a release of a registered mortgage; 3 (h) an amendment of a registered mortgage; 4 (i) a change in the priority of registered mortgages; 5 (j) a caveat against dealings with the plantation licence; 6 (k) a surrender of a plantation licence; 7 (l) a cancellation of a plantation licence; 8 (m) a termination of a plantation licence; 9 (n) a termination of a plantation sublicence; 10 (o) an enforcement warrant. 11 Note-- 12 A dealing may be lodged for registration under this Act at any office 13 where a dealing may be lodged for registration under the Land Title Act 14 1994 when the office is open for business. 15 `(3) Also, if a plantation licence is affected by any of the following 16 documents, the document may be registered in the register-- 17 (a) a mortgage of a plantation licence; 18 (b) a mortgage of a plantation sublicence; 19 (c) another document required under an Act. 20 `(4) A document mentioned in subsection (2)(a), (b), (c), (d), (e), 21 (f), (k), (l) or (m) or (3)(a) or (b) may be registered only if it is 22 approved, or consented to, by the Minister. 23 `(5) If a dealing mentioned in subsection (2) relates to part of a 24 licence area that is not already identified on a sketch plan, the 25 person lodging the dealing for registration must also lodge a 26 sketch plan identifying the affected part. 27 `61RP Particulars that must be recorded 28 `The chief executive (lands) must record in the register-- 29 Page 69

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] (a) the particulars of each plantation licence lodged for 1 registration; and 2 (b) the particulars necessary to identify-- 3 (i) each dealing affecting an interest in a plantation 4 licence registered and when it was lodged and 5 registered; and 6 (ii) the name of the person who holds, and the name of 7 each person who has held, an interest in a 8 plantation licence; and 9 (iii) all documents registered in the register and when 10 they were lodged and registered; and 11 (iv) anything else required or permitted to be registered 12 under this Act. 13 `61RQ Particulars that may be recorded 14 `The chief executive (lands) may record in the register 15 anything the chief executive (lands) considers should be 16 recorded to ensure the register is an accurate, comprehensive 17 and useable record of plantation licences, relevant interests 18 and dealings. 19 `61RR Procedures on lodgement and registration of 20 document 21 `(1) When a document is lodged with the chief executive (lands), 22 the chief executive (lands) must note on the document-- 23 (a) the date and time of lodgement; and 24 (b) an identifying reference. 25 `(2) When the document is registered, the chief executive (lands) 26 must record the information mentioned in subsection (1)(a) 27 and (b) in the register. 28 Page 70

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] `61RS Chief executive (lands) may correct registers 1 `(1) The chief executive (lands) must correct the register if-- 2 (a) the chief executive (lands) is satisfied-- 3 (i) the register is incorrect because the chief executive 4 (lands) has incorrectly recorded a particular or 5 registered a dealing; and 6 (ii) the correction will not prejudice the rights of the 7 holder of an interest recorded in the register; or 8 (b) a court has ordered the correction. 9 `(2) The power of the chief executive (lands) to correct the register 10 includes power to correct a particular in the register. 11 `(3) If the register is corrected, the chief executive (lands) must 12 record in the register-- 13 (a) the state of the register before the correction; and 14 (b) the time, date and circumstances of the correction. 15 `(4) The register as corrected by the chief executive (lands) under 16 this section has the same effect as if the relevant error had not 17 been made. 18 `(5) For subsection (1)(a)(ii), the rights of the holder of an interest 19 recorded in the register are not prejudiced if the holder 20 acquired or has dealt with the interest with actual or 21 constructive knowledge that the register was incorrect and 22 how it was incorrect. 23 `61RT Documents form part of the register 24 `On registration of a document in the register, the document 25 forms part of the register. 26 Page 71

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] `Division 3 General requirements for 1 documents in the register 2 `61RU Form of documents 3 `(1) A document lodged by a person must be lodged with the 4 approved form. 5 `(2) The chief executive (lands) may-- 6 (a) approve forms for use under this part; and 7 (b) give directions about particular requirements for sketch 8 plans. 9 `61RV Execution of documents 10 `(1) For a corporation, a document is validly executed if-- 11 (a) it is executed in a way permitted by law; or 12 (b) the document is sealed with the corporation's seal in 13 accordance with the Property Law Act 1974, section 46. 14 `(2) For an individual, a document is validly executed if-- 15 (a) it is executed in a way permitted by law; and 16 (b) the execution is witnessed by a person mentioned in the 17 Land Title Act 1994, schedule 1. 18 `(3) However, the chief executive (lands) may, in exceptional 19 circumstances, register a document executed by an individual 20 even though the execution was not witnessed or was not 21 witnessed by a person mentioned in the Land Title Act 1994, 22 schedule 1. 23 `(4) A document to transfer or create an interest in a plantation 24 licence or plantation sublicence must be executed by-- 25 (a) the transferor or the person creating the interest; and 26 (b) the transferee or the person in whose favour the interest 27 is to be created or a lawyer authorised by the transferee 28 or the person. 29 Page 72

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] `(5) A total or partial release of mortgage need only be signed by 1 the mortgagee. 2 `(6) The witnessing of a document may be proved in any way 3 permitted by law. 4 `(7) This section does not apply to a sketch plan. 5 `61RW Registered documents to comply with particular 6 requirements 7 `(1) A document may be registered only if-- 8 (a) the document is lodged with the approved form and 9 correctly executed; and 10 (b) the document complies with the directions of the chief 11 executive (lands) about-- 12 (i) how the approved form must be filled in; and 13 (ii) how information to be included in or given with the 14 document must be included or given; and 15 (c) if the Minister's approval or consent is needed--the 16 Minister has given approval or consent to the transaction 17 to which the document relates; and 18 (d) in relation to a plantation licence or plantation 19 sublicence the subject of a registered mortgage, the 20 mortgagee has given consent to the transaction to which 21 the document relates. 22 `(2) A document that does not comply with a direction mentioned 23 in subsection (1)(b) may be registered if the chief executive 24 (lands) is satisfied it is reasonable to not require compliance. 25 `(3) Subsection (1)(d) does not apply to a caveat, a cancellation of 26 a plantation licence, a termination of a plantation licence or 27 plantation sublicence or an enforcement warrant. 28 Page 73

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] `61RX Power of the chief executive (lands) when fraud 1 suspected 2 `The chief executive (lands) may refuse to accept for 3 lodgement, or refuse to register, a document the chief 4 executive (lands) reasonably suspects to be affected by fraud. 5 `Division 4 Registration of documents 6 `61RY Right to have interest registered 7 `(1) If a person lodges a document mentioned in section 61RO, the 8 chief executive (lands) must register the document if-- 9 (a) the document has been correctly executed; and 10 (b) the person lodges the document and all other documents 11 needed by the chief executive (lands) to effect 12 registration of the document; and 13 (c) the document appears on its face to be capable of 14 registration; and 15 (d) the document contains, or is accompanied by, any 16 written approval or consent required for its registration; 17 and 18 (e) the person has otherwise complied with this part for the 19 registration of the document; and 20 (f) the document is not inconsistent with another Act or 21 law. 22 `(2) However, subsection (1) does not prevent the person from 23 withdrawing the document before it is registered. 24 `61RZ Registered document operates as a deed 25 `A registered document operates as a deed. 26 `61S Order of registration of documents 27 `(1) Documents relating to a plantation licence must be registered 28 Page 74

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] in the order they are lodged. 1 `(2) Subsection (1) is subject to section 61TO. 2 `61SA Priority of registered documents 3 `(1) Registered documents have priority according to when each 4 of them was lodged and not according to when each of them 5 was executed. 6 `(2) A document is taken to be lodged on the day and at the time 7 endorsed on the document by the chief executive (lands) as 8 the day and time of the lodgement unless the contrary is 9 proved. 10 `(3) Subsection (1) is not affected by actual, implied or 11 constructive notice. 12 `(4) Registered documents have priority over documents that are 13 not registered and any interests claimed under documents that 14 are not registered. 15 `61SB How a document is registered 16 `The chief executive (lands) registers a document in the 17 register by recording in the register the particulars necessary 18 to identify the document. 19 `61SC When a document is registered 20 `(1) A document is registered when the particulars about the 21 document are recorded in the register. 22 `(2) This section applies subject to section 61SD. 23 `61SD No registration in absence of required approval or 24 consent of Minister 25 `(1) A document is not registered, even though the particulars 26 about the document are recorded in the register, if-- 27 Page 75

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] (a) under this Act, the Minister's approval or consent, 1 however described, is required for the document, 2 including any aspect of the document, but the approval 3 or consent has not been obtained; or 4 Example-- 5 A mortgage of a plantation licence requires the Minister's 6 consent to be registered. See section 61RO(4). 7 (b) the terms of the document are inconsistent with the 8 terms of any approval or consent, however described, 9 given by the Minister in relation to the document, 10 including any aspect of the document. 11 `(2) If under subsection (1) a document is not registered, the chief 12 executive (lands) may correct the particulars included in the 13 register in relation to the document. 14 `(3) Subsection (1) applies to an approval or consent, however 15 described, in relation to a document, whether or not the 16 approval or consent is required to be endorsed on the 17 document. 18 `(4) If the Minister is a signatory to a document, the Minister is 19 taken to have approved, or consented to, the document. 20 `Division 5 Consequences of registration 21 `61SE Benefits of registration 22 `The benefits of this division apply to a document whether or 23 not valuable consideration has been given. 24 `61SF Effect of registration on interest 25 `(1) On registration of a document expressed to transfer or create 26 an interest in a plantation licence or plantation sublicence-- 27 (a) the interest is created or transferred in accordance with 28 the document; and 29 (b) the interest is registered; and 30 Page 76

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] (c) the interest vests in the person identified in the 1 document as the person entitled to the interest. 2 `(2) A person who holds an interest in a plantation licence or 3 plantation sublicence holds the interest subject to-- 4 (a) all other interests in the plantation licence or plantation 5 sublicence previously registered; and 6 (b) all rights and interests registered in the register of State 7 forests kept under the Land Act 1994. 8 `(3) Subsection (1)(a) and (c) does not apply to a mortgage. 9 `61SG Evidentiary effect of recording particulars in the 10 register 11 `In all proceedings, the particulars of a registered document 12 recorded in the register are conclusive evidence of-- 13 (a) the registration of the document; and 14 (b) the contents of the document; and 15 (c) all things stated or implied in it by this or another Act; 16 and 17 (d) when the document was lodged and registered. 18 `Division 6 Transfers 19 `61SH Registering a transfer 20 `In order to be registered, a transfer of a plantation licence or 21 plantation sublicence must-- 22 (a) be validly executed; and 23 (b) include particulars sufficient to identify the plantation 24 licence or plantation sublicence to be transferred; and 25 (c) otherwise comply with the requirements of this Act. 26 Page 77

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] `Division 7 Mortgages 1 `61SI Registering a mortgage 2 `(1) In order to be registered, a mortgage must-- 3 (a) be validly executed; and 4 (b) include a description sufficient to identify the plantation 5 licence or plantation sublicence to be mortgaged; and 6 (c) include a description of the debt or liability secured by 7 the mortgage; and 8 (d) otherwise comply with the requirements of this Act. 9 `(2) A notice to a registered mortgagee under this Act is 10 sufficiently served if left at or sent to an address given for the 11 registered mortgagee in the mortgage. 12 `(3) If a mortgagee is registered as a trustee, a document stating 13 the details of the trust, or the document creating the trust, must 14 be deposited with the mortgage, unless-- 15 (a) a document has already been produced for the trust 16 under section 61ST(2); and 17 (b) the details of the trust have not since changed. 18 `61SJ Original mortgagee to confirm identity of mortgagor 19 `(1) This section applies in relation to the grant of a mortgage of a 20 plantation licence or plantation sublicence. 21 `(2) Before the mortgage is lodged for registration, the mortgagee 22 under the mortgage (the original mortgagee) must take 23 reasonable steps to ensure the person who executed the 24 mortgage as mortgagor is identical with the person who is, or 25 who is about to become, the plantation licensee or plantation 26 sublicensee. 27 `(3) Without limiting subsection (2), the original mortgagee takes 28 reasonable steps under the subsection if the original 29 mortgagee complies with practices included in the manual of 30 Page 78

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] land title practice under the Land Title Act 1994, section 1 9A(2)(ba) for the verification of identification of mortgagors. 2 `(4) The original mortgagee must, for 7 years after the mortgage is 3 registered, and whether or not there is registered a transfer of 4 the interest constituted by the mortgage-- 5 (a) keep, in the approved form, a written record of the steps 6 taken under subsection (2); or 7 (b) keep originals or copies of the documents and other 8 evidence provided to or otherwise obtained by the 9 original mortgagee in complying with subsection (2). 10 Maximum penalty--20 penalty units. 11 `(5) The chief executive (lands) may, whether before or after the 12 registration of the mortgage, and whether or not there has 13 been registered a transfer of the interest constituted by the 14 mortgage, ask the original mortgagee-- 15 (a) to advise the chief executive (lands) about the steps 16 taken by the original mortgagee under subsection (2); 17 and 18 (b) to produce for the inspection of the chief executive 19 (lands) the written record mentioned in subsection (4)(a) 20 or the originals or copies mentioned in subsection 21 (4)(b). 22 `(6) The original mortgagee must comply with a request under 23 subsection (5) unless the original mortgagee has a reasonable 24 excuse. 25 Maximum penalty for subsection (6)--20 penalty units. 26 `61SK Mortgagee transferee to confirm identity of 27 mortgagor 28 `(1) This section applies to the transfer of the interest constituted 29 by the mortgage of a plantation licence or plantation 30 sublicence. 31 `(2) Before the transfer is lodged for registration, the transferee 32 under the transfer (the mortgage transferee) must take 33 Page 79

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] reasonable steps to ensure the person who executed the 1 mortgage as mortgagor was identical with the person who, 2 when the mortgage was executed, was, or was about to 3 become, the plantation licensee or plantation sublicensee. 4 `(3) Without limiting subsection (2), the mortgage transferee takes 5 reasonable steps under the subsection if the mortgage 6 transferee complies with practices included in the manual of 7 land title practice under the Land Title Act 1994, section 8 9A(2)(c) for the verification of identification of mortgagors. 9 `(4) The mortgage transferee must, for 7 years after the transfer of 10 the mortgage is registered, and whether or not there is 11 registered a further transfer of the interest constituted by the 12 mortgage-- 13 (a) keep, in the approved form, a written record of the steps 14 taken under subsection (2); or 15 (b) keep originals or copies of the documents and other 16 evidence provided to or otherwise obtained by the 17 mortgage transferee in complying with subsection (2). 18 Maximum penalty--20 penalty units. 19 `(5) The chief executive (lands) may, whether before or after the 20 registration of the transfer of the mortgage, and whether or not 21 there has been registered a further transfer of the interest 22 constituted by the mortgage, ask the mortgage transferee-- 23 (a) to advise the chief executive (lands) about the steps 24 taken by the mortgage transferee under subsection (2); 25 and 26 (b) to produce for the inspection of the chief executive 27 (lands) the written record mentioned in subsection (4)(a) 28 or the originals or copies mentioned in subsection 29 (4)(b). 30 `(6) The mortgage transferee must comply with a request under 31 subsection (5) unless the mortgage transferee has a reasonable 32 excuse. 33 Maximum penalty for subsection (6)--20 penalty units. 34 Page 80

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] `61SL Releasing a mortgage 1 `(1) If a release of a registered mortgage is lodged, the chief 2 executive (lands) may register the release to the extent shown 3 in the release. 4 `(2) On registration of a release of a registered mortgage, the 5 mortgage is discharged, and the plantation licence or 6 plantation sublicence is released from the mortgage, to the 7 extent shown in the release. 8 `61SM Amending or transferring a mortgage 9 `(1) A registered mortgage may be amended only by registering an 10 amendment of the mortgage. 11 `(2) However, an amendment must not add a party to or remove a 12 party from the mortgage. 13 `(3) A mortgage may be transferred by the mortgagee only with 14 the Minister's written approval. 15 `61SN Amending priority of mortgages 16 `(1) The priority of registered mortgages may be amended by 17 registering a document amending priority. 18 `(2) The document amending priority must-- 19 (a) state the order of priority of all affected registered 20 mortgages; and 21 (b) be executed by all mortgagees affected by the 22 amendment. 23 `(3) On registration of the document amending priority, the 24 mortgages have priority in the order stated in the document. 25 `61SO Priority of advances 26 `A registered mortgage has the same priority in relation to all 27 advances (including future advances), and the performance of 28 all obligations, secured by the mortgage. 29 Page 81

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] `61SP Transfer of mortgage does not affect priority 1 `If a registered mortgage is transferred, the transferred 2 mortgage has the same priority immediately after the transfer 3 as it had immediately before the transfer. 4 `61SQ Powers of registered mortgagee 5 `(1) A registered mortgagee of a plantation licence or plantation 6 sublicence may exercise any right, power or authority validly 7 conferred on it under the mortgage if the plantation licensee or 8 plantation sublicensee defaults under the mortgage. 9 Example of powers that might be validly conferred under a mortgage-- 10 power to enter into possession, assume control of or exercise power 11 of sale of the plantation licence or plantation sublicence 12 power to appoint an enforcing party to enter into possession, 13 assume control of or exercise power of sale of the plantation licence 14 or plantation sublicence 15 power to engage, or permit the enforcing party to engage, 1 or more 16 persons to perform some or all of the plantation licensee's or 17 plantation sublicensee's obligations under the plantation licence or 18 plantation sublicence 19 `(2) If the registered mortgagee or an enforcing party enters into 20 possession or assumes control of the plantation licence or 21 plantation sublicence, the registered mortgagee or enforcing 22 party-- 23 (a) is subject to, and must perform, the obligations of the 24 plantation licensee or plantation sublicensee under this 25 Act, the plantation licence or plantation sublicence, or 26 any related agreement; and 27 (b) may enforce the rights of the plantation licensee or 28 plantation sublicensee under this Act, the plantation 29 licence or plantation sublicence, or any related 30 agreement. 31 Page 82

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] `61SR Mortgagee exercising power of sale 1 `(1) A registered mortgagee exercising power of sale over a 2 plantation licence or plantation sublicence must obtain the 3 Minister's approval to any transfer of the plantation licence or 4 plantation sublicence. 5 `(2) A registered mortgagee exercising power of sale over a 6 plantation licence or plantation sublicence with the Minister's 7 approval may also transfer a related agreement-- 8 (a) with the chief executive's approval; and 9 (b) if permitted under the plantation licence and the related 10 agreement. 11 `(3) A transfer of a related agreement in accordance with 12 subsection (1) has effect to transfer obligations of the 13 plantation licensee or plantation sublicensee under the 14 agreement to the transferee despite any rule of law to the 15 contrary. 16 `61SS Effect of transfer after sale under mortgage 17 `(1) Subsection (2) applies if a transfer of a plantation licence or 18 plantation sublicence executed by a registered mortgagee after 19 the exercise of the power of sale under a registered mortgage 20 is registered. 21 `(2) Registration of the transfer vests in the transferee the 22 mortgagor's interest that is transferred, free from liability 23 under the mortgage and any other mortgage registered after it 24 and any other mortgage not registered under this Act. 25 `Division 8 Trusts 26 `61ST Details of trust must be given 27 `(1) A corporation may be registered in the register as trustee of an 28 interest in a plantation licence or plantation sublicence. 29 Examples-- 30 Page 83

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] a mortgagee of a plantation licence may be registered as holding 1 that interest as trustee 2 a plantation licensee may be registered as holding that interest as 3 trustee 4 `(2) A certified copy of a document stating details of the trust, or a 5 certified copy of the document creating the trust, must be 6 lodged with the chief executive (lands) with the document 7 creating the corporation's interest as a trustee. 8 `(3) If the details of the trust change, the trustee must lodge a 9 certified copy of the document effecting the change with the 10 chief executive (lands). 11 `(4) A document given to the chief executive (lands) under 12 subsection (2) or (3) does not form part of the register. 13 `Division 9 Enforcement warrants 14 `61SU Definition for division 15 `In this division-- 16 enforcement warrant means an enforcement warrant under-- 17 (a) the Supreme Court Act of Queensland 1991, section 18 93A; or 19 (b) the State Penalties Enforcement Act 1999, section 63. 20 `61SV Registering an enforcement warrant 21 `The chief executive (lands) may register a request to record 22 an enforcement warrant only if an office copy of the warrant is 23 lodged with the request. 24 `61SW Effect of registering an enforcement warrant 25 `Until an enforcement warrant is registered-- 26 Page 84

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] (a) it does not bind or affect a plantation licence or 1 plantation sublicence, whether or not there is actual or 2 constructive notice of the enforcement warrant; and 3 (b) it binds or affects a plantation licence or plantation 4 sublicence only if the enforcement warrant is executed 5 and put in force within-- 6 (i) 6 months after its lodgement; or 7 (ii) the extended time allowed by the court that issued 8 the enforcement warrant, if notified to the chief 9 executive (lands). 10 `61SX Cancellation of registration of an enforcement 11 warrant 12 `Registration of an enforcement warrant may be cancelled if a 13 request to cancel it is lodged and the chief executive (lands) is 14 satisfied the time, or extended time, for executing and putting 15 the warrant into force has ended. 16 `61SY Discharging or satisfying an enforcement warrant 17 `Discharge or satisfaction of an enforcement warrant may be 18 registered if a request to register it is lodged and the chief 19 executive (lands) is satisfied the warrant has been discharged 20 or satisfied. 21 `61SZ Transfer of plantation licence or plantation 22 sublicence sold in execution 23 `(1) If a plantation licence or plantation sublicence is sold under a 24 registered enforcement warrant, the registrar of the relevant 25 court may execute a transfer to the purchaser. 26 `(2) On registration of the transfer, the transferee becomes the 27 plantation licensee or plantation sublicensee for the plantation 28 licence or plantation sublicence subject to-- 29 (a) registered mortgages and other registered interests; and 30 Page 85

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] (b) unregistered mortgages notified by caveat lodged before 1 registration of the enforcement warrant. 2 `(3) To remove any doubt, it is declared that a sale of a plantation 3 licence or plantation sublicence under a registered 4 enforcement warrant is subject to the requirements of this Act 5 relating to consent to the transfer of a plantation licence or 6 plantation sublicence. 7 `61T Effect on enforcement warrant of transfer after sale 8 by mortgagee 9 `(1) Subsection (2) applies if-- 10 (a) a mortgage is registered over a plantation licence or 11 plantation sublicence; and 12 (b) an enforcement warrant is later registered in relation to 13 the plantation licence or plantation sublicence. 14 `(2) If the mortgagee of the plantation licence or plantation 15 sublicence signs a transfer of the plantation licence or 16 plantation sublicence after exercising the power of sale under 17 the mortgage-- 18 (a) registration of the enforcement warrant does not prevent 19 registration of the transfer; and 20 (b) on registration of the transfer, the chief executive (lands) 21 must cancel registration of the enforcement warrant. 22 `(3) To remove any doubt, it is declared that a transfer of a 23 plantation licence or plantation sublicence by a mortgagee 24 exercising its power of sale is subject to the requirements of 25 this Act relating to consent to the transfer of a plantation 26 licence or plantation sublicence. 27 `Division 10 Powers of attorney 28 `61TA Power of attorney 29 `(1) A power of attorney that allows dealings with an interest in a 30 Page 86

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] plantation licence or plantation sublicence under this Act must 1 be registered in the powers of attorney register under the Land 2 Title Act 1994. 3 `(2) A power of attorney registered under the Land Title Act 4 1994-- 5 (a) is taken to be a power of attorney registered for this Act; 6 and 7 (b) authorises the donee to deal with any interest in a 8 plantation licence or plantation sublicence that may be 9 dealt with by the donor under the power of attorney and 10 this Act. 11 `Division 11 Caveats 12 `Subdivision 1 Caveats--general 13 `61TB Requirements of caveats 14 `(1) A caveat in relation to a plantation licence must be signed by 15 or for the caveator. 16 `(2) The caveat must state-- 17 (a) the name of the caveator; and 18 (b) an address where documents can be served on the 19 caveator; and 20 (c) unless the chief executive (lands) dispenses with it, the 21 name and address of-- 22 (i) the plantation licensee or plantation sublicensee 23 affected by the caveat; and 24 (ii) anyone else having the right to deal with the 25 plantation licence or plantation sublicence affected 26 by the caveat; and 27 (d) the plantation licence affected by the caveat; and 28 Page 87

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] (e) the registrable interest claimed by the caveator; and 1 (f) the grounds on which the interest is claimed. 2 `(3) This section applies to caveats under this division other than a 3 caveat prepared and registered by the chief executive (lands) 4 under section 61TL(1). 5 `61TC Lodging caveat 6 `(1) A caveat may be lodged by the following-- 7 (a) a person claiming a registrable interest in a plantation 8 licence or plantation sublicence; 9 (b) a person to whom an Australian court has ordered that 10 an interest in a plantation licence or plantation 11 sublicence be transferred; 12 (c) a person who has the benefit of a subsisting order of an 13 Australian court in restraining a plantation licensee or 14 plantation sublicensee from dealing with a plantation 15 licence or plantation sublicence. 16 `(2) However a caveat may only be lodged by a mortgagee under 17 an unregistered mortgage if it is a caveat to which section 18 61TG applies. 19 Note-- 20 The chief executive (lands) may prepare and register a caveat under 21 section 61TL(1). 22 `(3) An office copy of a court order mentioned in subsection (1)(b) 23 or (c) must be deposited when a caveat is lodged under 24 subsection (1). 25 `61TD Notifying caveat 26 `The chief executive (lands) must give written notice of 27 lodgement of a caveat under this division to each person 28 whose registered interest or whose right to registration of a 29 document is affected by the caveat. 30 Page 88

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] `61TE Effect of lodging caveat 1 `(1) A caveat lodged under this division prevents registration of a 2 document affecting the plantation licence or plantation 3 sublicence over which the caveat is lodged from the date and 4 time endorsed by the chief executive (lands) on the caveat as 5 the caveat's date and time of lodgement. 6 `(2) Subsection (1) has effect for a caveat until the caveat is 7 cancelled, rejected, removed or withdrawn. 8 `(3) However, lodgement of a caveat under this subdivision does 9 not prevent registration of the following-- 10 (a) a document stated in the caveat as a document to which 11 the caveat does not apply; 12 (b) a document if the caveator consents to its registration; 13 (c) a document executed by a mortgagee whose interest was 14 registered before lodgement of the caveat if the 15 mortgagee has power under the mortgage to execute the 16 document; 17 (d) a document of transfer of mortgage executed by a 18 mortgagee whose interest was registered before 19 lodgement of the caveat; 20 (e) another interest that, if registered, will not affect the 21 interest claimed by the caveator. 22 `(4) The exceptions mentioned in subsection (3)(c) and (d) do not 23 apply to a caveat lodged by the chief executive (lands). 24 `(5) Also, registration of a caveat under section 61TL(1) does not 25 prevent registration of the following-- 26 (a) a document stated in the caveat as a document to which 27 the caveat does not apply; 28 (b) a document if the chief executive (lands) consents to its 29 registration. 30 `(6) Lodgement of a caveat does not create in the caveator an 31 interest in the plantation licence or plantation sublicence 32 affected by the caveat. 33 Page 89

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] `61TF Withdrawing caveat 1 `A caveator may withdraw a caveat lodged under this division 2 by lodging a request to withdraw it. 3 `61TG Lapsing of caveat 4 `(1) This section does not apply to a caveat if-- 5 (a) it is lodged by the registered plantation licensee; or 6 (b) the consent of the registered plantation licensee is 7 deposited when the caveat is lodged; or 8 (c) an office copy of a court order mentioned in section 9 61TC(1)(c) or (d) is deposited when the caveat is 10 lodged; or 11 (d) it is prepared and registered by the chief executive 12 (lands) under section 61TL(1). 13 `(2) A caveatee of a caveat to which this section applies may serve 14 on the caveator a notice requiring the caveator to start a 15 proceeding in a court of competent jurisdiction to establish the 16 interest claimed under the caveat. 17 `(3) The caveatee must notify the chief executive (lands) within 14 18 days of service of the notice on the caveator. 19 `(4) If a caveator does not want a caveat to which this section 20 applies to lapse, the caveator must-- 21 (a) start a proceeding in a court of competent jurisdiction to 22 establish the interest claimed under the caveat-- 23 (i) if a notice under subsection (2) is served on the 24 caveator--within 14 days after the notice is served 25 on the caveator; or 26 (ii) if a notice under subsection (2) is not served on the 27 caveator--within 3 months after the lodgement of 28 the caveat; and 29 (b) notify the chief executive (lands) within the 14 days or 30 the 3 months that a proceeding has been started and 31 identify the proceeding. 32 Page 90

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] `(5) If the caveator does not comply with subsection (4), the 1 caveat lapses. 2 `(6) The caveator is taken to have complied with subsection (4)(a) 3 if a proceeding has been started in a court of competent 4 jurisdiction to establish the interest claimed under the caveat 5 before the caveat was lodged. 6 `(7) The chief executive (lands) may remove a caveat that has 7 lapsed from the register. 8 `61TH Removing caveat 9 `(1) A caveatee may at any time apply to the Supreme Court for an 10 order that a caveat lodged under this division be removed. 11 `(2) The Supreme Court may make the order whether or not the 12 caveator has been served with the application, and may make 13 the order on the terms it considers appropriate. 14 `61TI Cancelling caveat 15 `(1) This section does not apply to a caveat prepared and 16 registered by the chief executive (lands) under section 17 61TL(1). 18 `(2) The chief executive (lands) may cancel a caveat if a request to 19 cancel the caveat is lodged and the chief executive (lands) is 20 satisfied-- 21 (a) the interest claimed by the caveator has ceased or the 22 claim to it has been abandoned or withdrawn; or 23 (b) the claim of the caveator has been settled by agreement 24 or otherwise satisfied; or 25 (c) the nature of the interest claimed does not entitle the 26 caveator to prevent registration of a document that has 27 been lodged. 28 `(3) The chief executive (lands) must notify the caveator of his or 29 her intention to cancel the caveat at least 7 days before 30 cancelling it. 31 Page 91

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] `(4) If a document that has been lodged will, on registration, give 1 full effect to an interest claimed in a caveat, the chief 2 executive (lands) may remove the caveat immediately before 3 registering the document. 4 `61TJ Further caveat 5 `(1) This section applies if a caveat is lodged under this division 6 (the original caveat) in relation to an interest. 7 `(2) A further caveat with the same caveator can never be lodged 8 in relation to the interest on the same, or substantially the 9 same, grounds as the grounds stated in the original caveat 10 unless the leave of a court of competent jurisdiction to lodge 11 the further caveat has been granted. 12 `(3) This section does not apply to a caveat prepared and registered 13 by the chief executive (lands) under section 61TL(1). 14 `61TK Notices to the caveator 15 `(1) A notice to a caveator under this subdivision is sufficiently 16 served if left at or sent to the address mentioned in section 17 61TB(2)(b). 18 `(2) If the chief executive (lands) is satisfied a notice under this 19 subdivision will not reach the caveator if served in the way 20 mentioned in subsection (1), the notice may be served in a 21 way stated in a written direction by the chief executive 22 (lands). 23 `(3) If the chief executive (lands) is informed in writing, and is 24 satisfied, the name or address of the caveator has changed, the 25 chief executive (lands) must note on the caveat details of the 26 new name or address. 27 `(4) A new name or address noted under subsection (3) becomes 28 the name or address for service of a notice on the caveator. 29 Page 92

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] `Subdivision 2 Caveats--chief executive (lands) 1 `61TL Chief executive (lands) may prepare and register 2 caveat 3 `(1) The chief executive (lands) may prepare and register a caveat 4 over a plantation licence in favour of a person. 5 `(2) The chief executive (lands) may act under subsection (1) to 6 prevent a dealing with a plantation licence that may 7 prejudice-- 8 (a) the Commonwealth, a State or a relevant local 9 government; or 10 (b) a person because of-- 11 (i) misdescription of the plantation licence; or 12 (ii) fraud or forgery; or 13 (c) a person, other than a person mentioned in any of 14 paragraphs (a) or (b), who has an interest in the 15 plantation licence. 16 `(3) Also, the chief executive (lands) may act under subsection (1) 17 to prevent a dealing with a plantation licence-- 18 (a) if the plantation licence is to be cancelled or terminated; 19 or 20 (b) to give effect to an order of a court of competent 21 jurisdiction directed to the chief executive (lands). 22 `(4) Subsection (2)(c) applies only if the chief executive (lands) is 23 satisfied, because of the nature or urgency of particular 24 circumstances, there is no practicable alternative to registering 25 the caveat. 26 `(5) In this section-- 27 dealing, with a plantation licence, does not include registering 28 a document to cancel or terminate a plantation licence. 29 Page 93

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] relevant local government means the local government in 1 whose local government area the licence area for the 2 plantation licence or plantation sublicence is situated. 3 `Division 12 Relationship with other laws 4 `61TM Relationship with Property Law Act 1974 5 `(1) For parts 6D and 6E, the following provisions of the Property 6 Law Act 1974 do not apply to a mortgage of a plantation 7 licence or plantation sublicence-- 8 section 18 (Restrictions on operation of conditions of 9 forfeiture) 10 section 79 (Variation of mortgage) 11 section 80 (Inspection and production of instruments) 12 section 81 (Actions for possession by mortgagors) 13 section 82 (Tacking and further advances) 14 section 83 (Powers incident to estate or interest of 15 mortgagee) 16 section 85(1A) (Duty of mortgagee or receiver as to sale 17 price) 18 section 86 (Effect of conveyance on sale) 19 section 87 (Protection of purchasers) 20 section 89 (Provisions as to exercise of power of sale) 21 section 91 (Amount and application of insurance 22 money) 23 section 99 (Sale of mortgaged property in action for 24 redemption or foreclosure) 25 section 100 (Realisation of equitable charges by the 26 court) 27 section 101 (Facilitation of redemption in case of absent 28 or unknown mortgagees). 29 Page 94

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] `(2) The Property Law Act 1974, section 92(1A) applies to a 1 mortgage under this Act as if a reference in that subsection to 2 the Land Act or the Mineral Resources Act were a reference 3 to this Act. 4 `61TN Relationship with Personal Property Securities Act 5 2009 (Cwlth) 6 `(1) It is declared that the following are not personal property for 7 the purposes of the Personal Property Securities Act 2009 8 (Cwlth)-- 9 (a) a plantation licence; 10 (b) a plantation sublicence; 11 (c) a right conferred on a plantation licensee or plantation 12 sublicensee under this Act, a plantation licence or 13 plantation sublicence, including a right to natural 14 resource product or quarry material in a licence area; 15 (d) any other right, licence or authority granted under this 16 Act. 17 `(2) Subsection (1) does not limit the application of the Personal 18 Property Securities Act 2009 (Cwlth), section 8(1)(f)(i) to a 19 plantation licence or plantation sublicence. 20 `Division 13 General 21 `61TO Withdrawing lodged document before registration 22 `(1) If the chief executive (lands) is satisfied the order in which a 23 document has been lodged in relation to other documents will 24 not give effect to the intention expressed in it or a related 25 document, or is a document that should not have been lodged, 26 the chief executive (lands) may-- 27 (a) withdraw the document; or 28 (b) permit the document to be withdrawn. 29 Page 95

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] `(2) A document withdrawn by the chief executive (lands) under 1 subsection (1)(a) remains in the register, unless the document 2 is a document that should not have been lodged. 3 `(3) The chief executive (lands) may relodge a document that has 4 been withdrawn by the chief executive (lands). 5 `(4) On receiving a written application, the chief executive (lands) 6 may permit the applicant to relodge a document that the chief 7 executive (lands) has permitted to be withdrawn. 8 `(5) A document withdrawn under subsection (1) loses its priority 9 under section 61SA and is taken to have been lodged on the 10 day and at the time endorsed on it by the chief executive 11 (lands) on its relodgement. 12 `61TP Chief executive may call in document for correction 13 or cancellation 14 `The chief executive (lands), by written notice, may require a 15 person to deposit a document for correction or cancellation. 16 `61TQ Requisitions 17 `(1) The chief executive (lands), by written notice (requisition) 18 given to a person who has lodged or deposited a document, or 19 to another person who reasonably appears to the chief 20 executive (lands) to be relevantly associated with the 21 document, may require a person to-- 22 (a) re-execute, complete or correct the document if it 23 appears to the chief executive (lands) to be wrong, 24 incomplete or defective; or 25 (b) produce to the chief executive (lands) stated 26 information, or deposit a stated document, in support of 27 the application to register a document. 28 `(2) The chief executive (lands) may require the document or 29 information to be verified by statutory declaration or affidavit. 30 `(3) A requisition may state when, and the place where, it must be 31 complied with. 32 Page 96

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] `(4) The chief executive (lands) may extend the time for 1 complying with a requisition. 2 `(5) The chief executive (lands) may refuse to deal with a 3 document lodged or deposited (and any document depending 4 on it for registration) until the requisition is complied with. 5 `61TR Rejecting document for failure to comply with 6 requisition 7 `(1) If a requisition is not complied with by a person within the 8 time stated or extended by the chief executive (lands), the 9 chief executive (lands) may reject the document to which the 10 requisition relates and any document depending on it for 11 registration. 12 `(2) A rejected document loses its priority under section 61SA and 13 must be returned by the chief executive (lands) to the person 14 who lodged it. 15 `(3) A memorandum recording the rejection of a document may be 16 endorsed on the rejected document or in a separate record kept 17 in the register. 18 `(4) This section does not prevent relodgement of a rejected 19 document after the requisition has been complied with. 20 `61TS Entitlement to search the register 21 `(1) A person may, on payment of any fee prescribed under a 22 regulation-- 23 (a) search and obtain a copy of-- 24 (i) the particulars recorded about a document 25 registered in the register; or 26 (ii) a registered document; or 27 (iii) a document that has been lodged but is not 28 registered (whether or not it has been cancelled); 29 and 30 Page 97

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] (b) obtain a copy of the particulars recorded about a 1 registered document, or a registered document, certified 2 by the chief executive (lands) to be an accurate copy. 3 `(2) Subsection (1)(a)(iii) does not apply to a document destroyed 4 by the chief executive (lands). 5 `(3) A search under subsection (1) may be carried out at, or a copy 6 mentioned in subsection (1) obtained from, an office of the 7 registry during office hours on a day the registry is open for 8 business. 9 `(4) Also, a search under subsection (1) may be carried out at, or a 10 copy mentioned in subsection (1) obtained from, the website 11 of an entity engaged by the chief executive (lands) for the 12 purpose of allowing persons to search the register or obtain 13 copies of particulars, documents or other information kept in 14 the register. 15 `(5) The chief executive (lands) may allow a person to carry out a 16 search under subsection (1)(a) for-- 17 (a) only part of the particulars recorded about a document; 18 or 19 (b) only part of a document lodged or deposited with the 20 chief executive (lands); or 21 (c) only part of the information about a document lodged or 22 deposited with the chief executive (lands). 23 `(6) The chief executive (lands) may enter into an agreement with 24 another department allowing the department to carry out a 25 search, or obtain a copy, under this section without payment 26 of the fee mentioned in subsection (1). 27 `(7) However, the chief executive (lands) may enter into an 28 agreement under subsection (6) only if the chief executive 29 (lands) is reasonably satisfied the information obtained from 30 the search or the copy will not be-- 31 (a) used for a commercial purpose, including, for example, 32 the marketing or sale of the information or other 33 information; or 34 Page 98

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 45] (b) included in another database of information, in any 1 form, other than with approval from the chief executive 2 (lands). 3 `61TT Evidentiary effect of certified copies of documents 4 `(1) A document purporting to be a certified copy of the 5 particulars recorded in the register is evidence of the 6 particulars recorded. 7 `(2) A document purporting to be a certified copy of a registered 8 document obtained under section 61TS(1)(b) is evidence of 9 the registered document. 10 `61TU Service 11 `(1) A notice required or permitted to be served on a person under 12 this part (relevant notice) may be served on the person's 13 agent. 14 `(2) The Supreme Court may order that a relevant notice required 15 or permitted be served on a person under this Act be served in 16 the way directed by the Supreme Court. 17 `(3) The Supreme Court may make an order under subsection (2) 18 if, for example, the person-- 19 (a) is not known; or 20 (b) can not be found and has no known agent; or 21 (c) is dead and has no personal representative. 22 `(4) The Supreme Court may dispense with service of a relevant 23 notice if it is satisfied that it is appropriate to dispense with 24 service of the notice. 25 `61TV Protection from liability 26 `(1) This section applies to the chief executive (lands) and a 27 person performing functions of the chief executive (lands) 28 under a delegation. 29 Page 99

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 46] `(2) A person to whom this section applies is not civilly liable for 1 an act or omission done honestly and without negligence 2 under this Act. 3 `(3) If subsection (2) prevents civil liability attaching to a person, 4 the liability attaches instead to the State. 5 `(4) In this section-- 6 function includes power.'. 7 Clause 46 Replacement of pt 7, hdg (Control and prohibition of fires 8 on State forests, timber reserves and forest entitlement 9 areas) 10 Part 7, heading-- 11 omit, insert-- 12 `Part 7 Fires on State forests, timber 13 reserves and forest entitlement 14 areas'. 15 Clause 47 Renumbering of s 61Q (Application of pt 7 to a State 16 plantation forest) 17 Section 61Q-- 18 renumber as section 61TW. 19 Clause 48 Amendment of s 62 (Control of fires on State forests etc.) 20 (1) Section 62(1)-- 21 insert-- 22 `Note-- 23 A plantation operator or plantation officer is not a person performing 24 duties under this Act for this section. See section 18C. See also the Fire 25 and Rescue Service Act 1990, sections 65 and 66 for provisions about 26 the giving of permits to light fires on any land including in a licence 27 area.'. 28 (2) Section 62(2), after `chief executive'-- 29 Page 100

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 49] insert-- 1 `, a plantation licensee or plantation sublicensee'. 2 (3) Section 62(2), after `forest officer'-- 3 insert-- 4 `or plantation officer'. 5 Clause 49 Amendment of s 63 (Duty of lessee of State forest etc.) 6 (1) Section 63-- 7 insert-- 8 `(1B) A forest officer or person performing duties under this Act 9 who is notified of a fire under subsection (1) must 10 immediately notify a plantation licensee or plantation 11 sublicensee for a licence area of the fire if the fire is likely to 12 spread to the licence area. 13 Note-- 14 A plantation operator or plantation officer is not a person performing 15 duties under this Act for this section. See section 18C.'. 16 (2) Section 63(2), `a forest offence'-- 17 omit, insert-- 18 `an offence'. 19 (3) Section 63-- 20 insert-- 21 `(5) This section does not apply to a plantation licensee or 22 plantation sublicensee or any manager, supervisor or other 23 person acting in the general management or control of the 24 business of the plantation licensee or plantation sublicensee 25 carried on in or on a licence area.'. 26 Clause 50 Insertion of new s 63A 27 After section 63-- 28 insert-- 29 Page 101

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 51] `63A Duty of plantation licensee etc. 1 `(1) A plantation licensee must at the person's own expense, make 2 all reasonable provision for preventing, detecting, controlling 3 and extinguishing bush, grass, or other rural fires on the 4 licence area. 5 Maximum penalty--100 penalty units. 6 `(2) A plantation licensee or plantation manager must, on 7 becoming aware of a fire burning on the licence area that the 8 plantation licensee or plantation manager reasonably believes 9 to have been unlawfully lit or is out of control, immediately 10 do everything reasonably within its power to extinguish the 11 fire. 12 Maximum penalty--100 penalty units. 13 `(3) On becoming aware of a fire, a plantation licensee or 14 plantation manager must immediately notify a forest officer of 15 the fire-- 16 (a) if it is burning on State forest outside the licence area if 17 the plantation licensee or plantation manager reasonably 18 believes it to have been unlawfully lit or to be out of 19 control; or 20 (b) if it is burning outside State forest and the plantation 21 licensee or plantation manager reasonably believes it is 22 likely to spread to the State forest; or 23 (c) if it is burning on the licence area, if the plantation 24 licensee or plantation manager reasonably believes it is 25 likely to spread beyond the licence area to the State 26 forest outside the licence area. 27 Maximum penalty--100 penalty units. 28 `(4) In this section-- 29 plantation licensee includes plantation sublicensee. 30 Clause 51 Amendment of s 64 (Certain person to be incapable of 31 holding permits etc.) 32 Section 64-- 33 Page 102

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 52] insert-- 1 `(4) This section does not apply to-- 2 (a) a plantation licensee or plantation sublicensee; or 3 (b) a plantation licence or plantation sublicence.'. 4 Clause 52 Amendment of s 65 (Control of fires on lands adjoining 5 State forest etc.) 6 (1) Section 65(1)-- 7 insert-- 8 `Note-- 9 A plantation operator or plantation officer is not a person performing 10 duties under this Act for the purpose of this section. See section 18C.'. 11 (2) Section 65(2) and (4), headings-- 12 omit. 13 (3) Section 65(3) and (3A)-- 14 omit. 15 (4) Section 65(2A) -- 16 renumber as section 65(3). 17 (5) Section 65(4), `bush fire brigade'-- 18 omit, insert-- 19 `rural fire brigade'. 20 Clause 53 Insertion of new ss 65A and 65B 21 After section 65-- 22 insert-- 23 `65A Recovery of expenses incurred in extinguishing 24 fires on State forests 25 `(1) Subsection (2) applies if-- 26 (a) a person performing duties under this Act has, within 27 the boundaries of a State forest, timber reserve or forest 28 Page 103

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 53] entitlement area (the relevant area) extinguished or 1 caused to be extinguished a fire burning within the 2 relevant area; and 3 (b) it is established that-- 4 (i) the fire originated on land other than the relevant 5 area; and 6 (ii) the owner or occupier of the land on which the fire 7 originated, or his or her agent or employee, was 8 responsible for the lighting of the fire; and 9 (iii) the lighting of the fire was not authorised under the 10 Fire and Rescue Service Act 1990, part 7. 11 Note-- 12 A plantation operator or plantation officer is not a person performing 13 duties under this Act for the purpose of this section. See section 18C. 14 `(2) The State may recover from the owner or occupier of the land 15 on which the fire originated, in any court of competent 16 jurisdiction, all reasonable expenses incurred by a person 17 performing duties under this Act in controlling and 18 extinguishing the fire, including, for example-- 19 (a) salaries and wages of officers and employees; and 20 (b) compensation for the use of plant, vehicles and 21 equipment. 22 `(3) Subsection (2) does not limit the rights of the State, a 23 plantation licensee or plantation sublicensee under any other 24 provision of this Act or at law. 25 `65B Recovery of expenses incurred in extinguishing 26 fires on State forests within licence areas 27 `(1) Subsection (2) applies if-- 28 (a) a plantation licensee has, within a licence area, 29 extinguished or caused to be extinguished a fire burning 30 within the licence area; and 31 (b) it is established that-- 32 Page 104

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 54] (i) the fire originated on land, other than a State forest, 1 timber reserve or forest entitlement area, outside 2 the licence area; and 3 (ii) the owner or occupier of the land on which the fire 4 originated, or his or her agent or employee, was 5 responsible for the lighting of the fire; and 6 (iii) the lighting of the fire was not authorised under the 7 Fire and Rescue Service Act 1990, part 7. 8 `(2) The plantation licensee may recover from the owner or 9 occupier of the land on which the fire originated, in any court 10 of competent jurisdiction, all reasonable expenses incurred by 11 the plantation licensee in controlling and extinguishing the 12 fire, including, for example-- 13 (a) salaries and wages of officers and employees; and 14 (b) compensation for the use of plant, vehicles and 15 equipment. 16 `(3) Subsection (2) does not limit the rights of the State or 17 plantation licensee under any other provision of this Act or at 18 law. 19 `(4) In this section-- 20 owner or occupier does not include the State. 21 plantation licensee includes plantation sublicensee.'. 22 Clause 54 Amendment of s 69 (Forfeiture of leases and the like and 23 cancellation of agreements) 24 Section 69-- 25 insert-- 26 `(6) In this section-- 27 authority does not include plantation licence or plantation 28 sublicence.'. 29 Page 105

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 55] Clause 55 Replacement of s 69E (Application of pt 8 to a State 1 plantation forest) 2 Section 69E-- 3 omit, insert-- 4 `69E Chief executive must consult with plantation 5 licensee or plantation sublicensee if considering 6 exercising power in relation to a licence area 7 `(1) This section applies if the chief executive is considering 8 granting or making a permit, licence, lease or other authority, 9 or an agreement or contract, under this Act that is over a 10 licence area (the relevant authorisation). 11 `(2) This section does not apply if a person exercising delegated 12 power under section 96B is considering the granting or 13 making of the relevant authorisation. 14 `(3) Before granting or making the relevant authorisation, the chief 15 executive must-- 16 (a) consult with the plantation licensee and any plantation 17 sublicensee for the licence area; and 18 (b) consider any written representations made by the 19 plantation licensee and any plantation sublicensee about 20 the impact of the relevant authorisation on its operations 21 under the plantation licence or plantation sublicence. 22 `(4) If activities under a relevant authorisation may result in 23 damage being caused to the licence area, the chief executive 24 must also take into account the ability of the applicant for the 25 relevant authorisation to repair or pay for the damage. 26 `(5) A person to whom a relevant authorisation is granted or made 27 who causes damage to the licence area is liable in damages to 28 the plantation licensee or plantation sublicensee for the 29 damage to the licence area. 30 `(6) The plantation licensee or plantation sublicensee may bring an 31 action against a person mentioned in subsection (5) who 32 causes damage to the licence area.'. 33 Page 106

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 56] Clause 56 Amendment of s 72 (Wild stock) 1 Section 72, after `forest officer'-- 2 insert-- 3 `or plantation officer'. 4 Clause 57 Amendment of s 73 (Unlawfully using State forests etc.) 5 Section 73-- 6 insert-- 7 `(3) If a plantation licensee, plantation sublicensee, plantation 8 manager or plantation officer (the decision maker) exercising 9 delegated power makes a decision under this section, the 10 decision maker must advise the applicant for the permit of the 11 following-- 12 (a) that the applicant may apply for a review of the decision 13 under section 83A within 28 days if the applicant is 14 dissatisfied with the decision; 15 (b) the name and business address of the plantation licensee 16 or plantation sublicensee to whom an application for 17 review may be made.'. 18 `57A Amendment of s 74 (Unauthorised building etc. 19 within State forest etc.) 20 Sections 74(1) and (3), after `forest officer'-- 21 insert-- 22 `or plantation officer'. 23 Clause 58 Amendment of s 75 (Removal of trespassers) 24 Section 75-- 25 insert-- 26 `(2) In subsection (1)-- 27 Page 107

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 59] forest officer includes, in relation to a licence area, a 1 plantation officer for the licence area.'. 2 Clause 59 Amendment of s 76 (Entry on to reserves may be 3 prohibited) 4 (1) Section 76(1A)-- 5 omit, insert-- 6 `(1A) However, the Minister can not, by notification under 7 subsection (1), exclude the plantation licensee or plantation 8 sublicensee for a licence area from, or limit the plantation 9 licensee's or plantation sublicensee's access to, the licence 10 area.'. 11 (2) Section 76-- 12 insert-- 13 `(5) In subsection (1A)-- 14 plantation licensee includes the plantation licensee's 15 employees, agents, contractors, customers and invitees. 16 plantation sublicensee includes the plantation sublicensee's 17 employees, agents, contractors, customers and invitees.'. 18 `59A Amendment of s 79 (Subpurchase) 19 Section 79-- 20 insert-- 21 `(2) This section does not apply to a purchaser of natural resource 22 product from a plantation licensee or plantation sublicensee.'. 23 Clause 60 Amendment of s 80 (Accounts of forest products) 24 Section 80-- 25 insert-- 26 Page 108

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 61] `(3) This section does not apply to a plantation licensee or 1 plantation sublicensee or a purchaser of natural resource 2 product from a plantation licensee or plantation sublicensee.'. 3 Clause 61 Insertion of new s 83A 4 After section 83-- 5 insert-- 6 `83A Particular decisions subject to review 7 `(1) A person who is dissatisfied with a reviewable decision made 8 by a delegate of the chief executive exercising a delegated 9 function of the chief executive under section 96B (the 10 original decision maker) may ask the chief executive to 11 review the decision within 28 days after the person is notified 12 of the decision. 13 `(2) The person reviewing the decision (the reviewer) must be 14 more senior than the person who made the decision. 15 `(3) The reviewer-- 16 (a) may-- 17 (i) confirm the original decision; or 18 (ii) make another decision and, for that purpose, has 19 the same powers as the original decision maker; 20 and 21 (b) must give the applicant a statement of reasons for his or 22 her decision. 23 `(4) In this section-- 24 reviewable decision means-- 25 (a) a decision in relation to a permit under section 35; 26 (b) a decision in relation to a licence under section 55; 27 (c) a decision in relation to a permit, licence, lease, or other 28 authority, or an agreement or contract, under section 56; 29 (d) a decision in relation to a permit under section 73(2). 30 Page 109

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 62] Clause 62 Amendment of s 84 (Matters may be completed by 1 different officers) 2 Section 84-- 3 insert-- 4 `(5) In subsection (1)-- 5 officer includes plantation officer.'. 6 Clause 63 Amendment of s 88 (Offences generally) 7 (1) Section 88(2A), after `the Crown'-- 8 insert-- 9 `or a plantation licensee or plantation sublicensee'. 10 (2) Section 88(2C), after `the State'-- 11 insert-- 12 `or, to the extent the loss or damage related to a licence area or 13 natural resource product and quarry material in which the 14 plantation licensee or a plantation sublicensee has an interest, 15 the plantation licensee or plantation sublicensee'. 16 (3) Section 88(3), from `by any forest officer'-- 17 omit, insert-- 18 `by-- 19 (a) if the offence happened in, or related to, a licence 20 area--a plantation officer; or 21 (b) generally--any forest officer or any other person 22 authorised for the purpose either generally, or in the 23 particular case, by the chief executive.'. 24 Clause 64 Insertion of new s 88A 25 After section 88-- 26 insert-- 27 Page 110

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 65] `88A Recovery of moneys by plantation licensee or 1 plantation sublicensee 2 `(1) This section applies if a fee or amount owing to the State-- 3 (a) may be recovered by a plantation licensee or plantation 4 sublicensee; and 5 (b) is unpaid. 6 `(2) The plantation licensee or plantation sublicensee may recover 7 the fee or amount in any court of competent jurisdiction by 8 action as for a debt 9 `(3) The plantation licensee or plantation sublicensee may bring 10 the action in its own name.'. 11 Clause 65 Amendment of s 91 (Power to waive proceedings) 12 Section 91, before subsection (1)-- 13 insert-- 14 `(1AA) This section does not apply to natural resource product in a 15 licence area.'. 16 Clause 66 Amendment of s 95 (Facilitation of proof) 17 (1) Section 95(e) and (f), `or, in relation to a State plantation 18 forest, by FPQ or the head of FPQO, `-- 19 omit. 20 (2) Section 95(k) and (l), `, FPQ or the head of FPQO'-- 21 omit. 22 Clause 67 Insertion of new s 96AA 23 After section 96-- 24 insert-- 25 `96AA Delegation by Minister 26 `The Minister may delegate the Minister's functions and 27 powers under parts 6D and 6E to the chief executive.'. 28 Page 111

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 68] Clause 68 Amendment of s 96A (Delegation by chief executive) 1 Section 96A, heading, after `executive'-- 2 insert-- 3 `--general'. 4 Clause 69 Insertion of new ss 96B-96E 5 After section 96A-- 6 insert-- 7 `96B Delegation by chief executive--State plantation 8 forests 9 `(1) Without limiting section 96A, the chief executive may 10 delegate the chief executive's functions under sections 21(2), 11 34AA, 34AB, 34G, 35(1)(a), (c) or (d) and (2), 55 (other than 12 section 55(1)(g) or (h)), 56 (other than the function of 13 granting sales permits for the sale of natural resource product 14 from its licence area), 58, 59, 72, 73(2) and section 84(3) (to 15 the extent it applies to plantation officers) to-- 16 (a) a plantation licensee; or 17 (b) a plantation sublicensee; or 18 (c) a plantation manager; or 19 (d) a plantation officer; or 20 (e) a registered mortgagee or an enforcing party exercising 21 power under section 61SQ. 22 Note-- 23 A plantation licensee may not exercise power under section 56 to grant 24 sales permits for the sale of natural resource product from its licence 25 area but it can contract with other persons to sell natural resource 26 product on its licence area under section 61QD. See also section 61QP 27 for plantation sublicensees. 28 `(2) The chief executive may also delegate the chief executive's 29 functions under section 17 to appoint plantation officers to-- 30 (a) a plantation licensee; or 31 Page 112

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 69] (b) a plantation sublicensee; or 1 (c) a plantation manager; or 2 (d) a registered mortgagee or an enforcing party exercising 3 power under section 61SQ. 4 `(3) Further, the chief executive may delegate a function under 5 section 83A(1) about reviewable decisions under section 35 or 6 55 to a person having management responsibility for a 7 plantation licensee or plantation sublicensee. 8 `(4) A function delegated under subsection (1)-- 9 (a) is limited in its application to the relevant licence area; 10 and 11 (b) if the delegated function authorises the erection or 12 display of regulatory notices under section 34AA or 13 34AB or a notice under section 34G, may be exercised 14 only for the following purposes-- 15 (i) the protection of the health and safety of persons; 16 Example-- 17 prohibiting or limiting access to an area when tree 18 felling is happening 19 (ii) the protection of a plantation licensee's interests; 20 Example-- 21 prohibiting or limiting access to an area of young 22 trees at risk of damage because of careless behaviour 23 (iii) the proper maintenance of roads and tracks. 24 Example-- 25 prohibiting or limiting use of an unformed road after 26 heavy rain to avoid damage to the road 27 `(5) Subsection (6) applies if, when performing a function of the 28 chief executive delegated under this section, a plantation 29 licensee or plantation sublicensee, or an appointed person, 30 receives a fee prescribed under a regulation or another amount 31 under this Act in connection with the performance of the 32 function. 33 Page 113

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 69] `(6) The fee or amount-- 1 (a) may be retained by the plantation licensee or plantation 2 sublicensee who performed the function or appointed 3 the appointed person who performed the function; and 4 (b) does not form part of the consolidated fund. 5 `(7) Subsection (6) does not apply to the performance of a 6 function, or a fee received, under section 72. 7 `(8) In this section-- 8 appointed person means a plantation officer or plantation 9 manager. 10 function includes power. 11 relevant licence area means-- 12 (a) for a plantation licensee--the licence area for the 13 plantation licensee's plantation licence; or 14 (b) for a plantation manager--the licence area or part of the 15 licence area for which the plantation manager is 16 appointed; or 17 (c) for a plantation officer--the licence area for which the 18 plantation officer is appointed. 19 `96C Delegation by chief executive (lands) 20 `(1) The chief executive (lands) may delegate his or her functions 21 under this Act to an appropriately qualified public service 22 officer. 23 `(2) In subsection (1)-- 24 appropriately qualified includes having the qualifications, 25 experience or standing appropriate to exercise the power. 26 Example of standing-- 27 a person's classification level in the public service 28 function includes power. 29 Page 114

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 70] `96D Delegation by FPQ and head of FPQO 1 `(1) Without limiting any other power of delegation under another 2 Act, FPQ and the head of FPQO may delegate its or his or her 3 functions under this or another Act to-- 4 (a) a declared entity within the meaning of the 5 Infrastructure Investment (Asset Restructuring and 6 Disposal) Act 2009; or 7 (b) an appropriately qualified person who is an employee of 8 an entity mentioned in paragraph (a). 9 `(2) In this section-- 10 appropriately qualified, for the performance of a function, 11 includes having the qualifications, experience or standing 12 appropriate to perform the function. 13 function includes power. 14 `96E Protection from liability 15 `(1) This section applies to a person appointed as a plantation 16 officer by a plantation licensee or plantation manager under a 17 delegated function as mentioned in section 96B(2). 18 `(2) The person does not incur civil liability for an act done, or an 19 omission made, honestly and without negligence under this 20 Act. 21 `(3) If subsection (2) prevents a civil liability attaching to the 22 person, the liability attaches instead to the plantation licensee 23 or plantation manager.'. 24 Clause 70 Amendment of s 97 (Regulation-making power) 25 Section 97(4)-- 26 omit. 27 Clause 71 Replacement of pt 10 heading 28 Part 10, heading-- 29 Page 115

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 72] omit, insert-- 1 `Part 10 Other transitional provisions 2 `Division 1 Forestry Plantations Queensland 3 Act 2006'. 4 Clause 72 Insertion of new pt 10, div 2 5 Part 10-- 6 insert-- 7 `Division 2 Natural Resources and Other 8 Legislation Amendment Act 2010 9 `118 Definitions for subdiv 1 10 `In this division-- 11 2010 Amendment Act means the Natural Resources and 12 Other Legislation Amendment Act 2010. 13 administering entity has the meaning given by repealed 14 section 61L. 15 administering party, in relation to an FPQ sales permit, 16 means-- 17 (a) if there is a plantation sublicensee for the licence area in 18 relation to which the FPQ sales permit is operative--the 19 plantation sublicensee; or 20 (b) otherwise--the plantation licensee for the licence area 21 in relation to which the FPQ sales permit is operative. 22 commencement means the day this section commences. 23 FPQ sales permit means a permit, licence, lease or another 24 authority, or an agreement or contract, under section 56 25 granted or made by an administering entity, including by 26 acting under section 61M, under which its holder is entitled to 27 Page 116

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 72] take natural resource product in the form of plantation timber 1 from a future licence area. 2 future licence area means an area that, immediately before 3 the commencement, is in a State plantation forest, and that, 4 after the commencement, becomes a licence area. 5 Infrastructure Act means the Infrastructure Investment (Asset 6 Restructuring and Disposal) Act 2009. 7 old, in relation to a provision of this Act, means the provision 8 as in force immediately before its amendment by the 2010 9 Amendment Act. 10 `119 Provision for s 17 (Appointment of officers) 11 `(1) This section applies to a person who, before the 12 commencement, is an employee of FPQO and appointed by 13 FPQO as a forest officer if-- 14 (a) the person is transferred or seconded to a declared entity 15 under the Infrastructure Act, section 9(1)(k); and 16 (b) the declared entity-- 17 (i) enters into an agreement with the Minister under 18 section 61QA(1); or 19 Note-- 20 An agreement under section 61QA(1) is a plantation 21 licence. 22 (ii) is, or becomes, a plantation sublicensee; or 23 (iii) is appointed, with the Minister's approval, under 24 section 61QG as a plantation manager for a licence 25 area or part of a licence area. 26 `(2) The person's appointment as a forest officer ends and the 27 person is taken to have been appointed as a plantation officer 28 for the licence area or part-- 29 (a) if subsection (1)(b)(i) applies--on the entry into the 30 agreement mentioned in the provision; or 31 Page 117

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 72] (b) if subsection (1)(b)(ii) applies--on the day on which the 1 declared entity becomes a plantation sublicensee; or 2 (c) if subsection (1)(b)(iii) applies--on the appointment of 3 the declared entity as a plantation manager for a licence 4 area or part of a licence area. 5 `120 Provision for s 34AA or 34AB 6 `A notice mentioned in section 34AA(1) or (2) or 34AB(1) 7 erected or displayed by an administering entity, including by 8 acting under section 61M, and having effect immediately 9 before the commencement is taken, immediately after the 10 commencement, to have been authorised by the chief 11 executive under section 34AA(1) or (2) or 34AB(1) as 12 appropriate and continues to have effect accordingly. 13 `121 Provision for s 34A (Specialised management within 14 State forests) 15 `(1) This section applies if-- 16 (a) immediately before the commencement, the whole or a 17 part of a State forest was declared to be a feature 18 protection area or scientific area under old section 34A 19 (declared land); and 20 (b) immediately after the commencement, the declared land 21 is also State plantation forest. 22 `(2) Despite the amendment of old section 34A by the 2010 23 Amendment Act, declared land continues after the 24 commencement to be a feature protection area or scientific 25 area. 26 `(3) After the commencement, the Governor in Council may, by 27 regulation and despite the amendment of old section 34A, 28 continue to exercise power under old section 34A to revoke or 29 amend a declaration in relation to declared land. 30 Page 118

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 72] `122 Provision for s 34G (Regulating movement of 1 vehicles on feature protection areas etc.) 2 `A notice mentioned in section 34G(1) erected by the chief 3 executive or an administering entity, including by acting under 4 section 61M, and having effect immediately before the 5 commencement is taken, after the commencement, to have 6 been erected by the chief executive under section 34G(1) and 7 continues to have effect accordingly. 8 `123 Provision for s 34H (Self-registration camping areas) 9 `(1) A notice mentioned in section 34H(1) erected by the chief 10 executive or an administering entity, including by acting under 11 section 61M, and having effect immediately before the 12 commencement is taken, after the commencement, to have 13 been erected by the chief executive under section 34H(1) and 14 continues to have effect. 15 `(2) Subsection (1) does not prevent the chief executive from 16 exercising power to remove the notice after the 17 commencement. 18 `(3) A form approved for use in relation to self-registration 19 camping areas by an administering entity or the chief 20 executive immediately before the commencement may 21 continue to be used after the commencement until another 22 form is approved for use by the chief executive. 23 `124 Provision for s 35 (Granting of permit for land within 24 State forest) 25 `(1) This section applies to a permit or the extension of a permit 26 under section 35 granted or made by an administering entity, 27 including by acting under section 61M, that is in force or of 28 effect immediately before the commencement. 29 `(2) After the commencement, the permit-- 30 (a) continues in force or effect; and 31 (b) is taken to have been granted or made by the chief 32 executive. 33 Page 119

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 72] `125 Provision for s 55 (Licences to get forest 1 products etc.) 2 `(1) This section applies to a licence under section 55 granted by 3 an administering entity, including by acting under section 4 61M, that is in force immediately before the commencement. 5 `(2) After the commencement, the licence-- 6 (a) continues in force; and 7 (b) is taken to have been granted by the chief executive. 8 `126 Provision for s 56 (Permits etc.)--general 9 `(1) This section applies to an existing authority, other than an 10 FPQ sales permit, granted or made by an administering entity, 11 including by acting under section 61M, and in force 12 immediately before the commencement. 13 `(2) After the commencement, the existing authority-- 14 (a) continues in force; and 15 (b) is taken to have been granted or made by the chief 16 executive. 17 `(3) In this section-- 18 existing authority means a permit, licence, lease or another 19 authority, or an agreement or contract, under section 56. 20 `127 Provision for s 56 (Permits etc.)--administering 21 party for FPQ sales permits 22 `After the commencement, an FPQ sales permit-- 23 (a) continues in force; and 24 (b) is taken to have been granted or made by the 25 administering party. 26 Page 120

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 72] `128 Provision for s 56 (Permits etc.)--application of 1 relevant provisions for FPQ sales permits 2 `(1) In relation to an FPQ sales permit, a function conferred on the 3 chief executive under a relevant provision must be performed 4 by the administering party. 5 `(2) Power to cancel or suspend an FPQ sales permit under section 6 58(1) or (1B) may be exercised by the administering party 7 only in relation to an act, omission or event that, under the 8 express terms and conditions of the FPQ sales permit or any 9 contract (related contract) between the administering party 10 and the permittee in relation to the same subject matter, 11 enables the administering party to terminate the FPQ sales 12 permit. 13 `(3) Subsection (2) does not apply to an FPQ sales permit if 14 neither the FPQ sales permit nor any related contract contains 15 any express term or condition dealing with its termination. 16 `(4) A person dissatisfied with a decision of the administering 17 party to cancel or suspend an FPQ sales permit as provided 18 under subsection (3) may ask the chief executive to review the 19 decision within 28 days after receiving written notice of the 20 decision. 21 `(5) The chief executive-- 22 (a) may-- 23 (i) reinstate the FPQ sales permit; or 24 (ii) confirm the administering party's decision; or 25 (iii) make another decision that the chief executive 26 considers appropriate; and 27 (b) must give the person and the administering party a 28 statement of reasons for his or her decision. 29 `(6) For this section-- 30 (a) in a relevant provision-- 31 (i) a reference to the chief executive, the State or the 32 Crown is taken to be a reference to the 33 administering party; and 34 Page 121

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 72] (ii) a reference to a forest officer is taken to be a 1 reference to a plantation officer employed by the 2 administering party; and 3 (b) in section 88(2C), to the extent it applies to an offence 4 relating to a contravention of an FPQ sales permit, a 5 reference to the State is taken to be a reference to the 6 administering party; and 7 (c) in section 89, to the extent it applies to moneys due in 8 relation to natural resource product under an FPQ sales 9 permit, royalty or stumpage on natural resource product 10 got under an FPQ sales permit or loss or damage to 11 natural resource product (including loss or damage 12 occasioned by an employee, contractor, agent or invitee 13 of the holder), or any other matter or thing relating to an 14 FPQ sales permit, a reference to the Crown or the State 15 is taken to be a reference to the administering party. 16 `(7) In this section-- 17 function includes power. 18 relevant provision means each of the following-- 19 (a) section 5, to the extent it is relevant to another relevant 20 provision; 21 (b) section 56(1), to the extent it relates to an extension of 22 an FPQ sales permit; 23 (c) part 4; 24 (d) sections 58, 59, 61(1A) and 80; 25 (e) sections 88(3), 89, 91 and 92. 26 `129 Provision for s 73 (Unlawfully using State forests etc.) 27 `A permit granted for the purposes of section 73(1)(e) by an 28 administering entity, including by acting under section 61M, 29 and in force immediately before the commencement is taken, 30 after the commencement-- 31 Page 122

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 73] (a) to have been granted by the chief executive; and 1 (b) continues in force according to its terms. 2 `130 References to FPQ 3 `In an Act or document, a reference to any of the following in 4 relation to a State plantation forest or part of a State plantation 5 forest may, if the context permits, be taken as a reference to 6 the plantation licensee or a plantation sublicensee for the 7 relevant licence area in the State plantation forest or part-- 8 (a) FPQ; 9 (b) the chief executive of FPQ; 10 (c) the head of FPQO. 11 `131 Dissolution of corporation sole under the Forestry 12 Plantations Queensland Act 2006 13 The corporation sole constituted by the chief plantation 14 forestry officer under the Forestry Plantations Queensland 15 Act 2006 is dissolved. 16 `132 Amendment of regulations by the 2010 Amendment 17 Act does not affect powers of Governor in Council 18 `The amendment of the Forestry Regulation 1998 and the 19 Forestry (State Forests) Regulation 1987 by the 2010 20 Amendment Act does not affect the power of the Governor in 21 Council to further amend the regulations or to repeal them.'. 22 Clause 73 Omission of sch 1 (Administering entity for State 23 plantation forests) 24 Schedule 1-- 25 omit. 26 Page 123

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 74] Clause 74 Amendment of sch 3 (Dictionary) 1 (1) Schedule 3, definitions administering entity, relevant natural 2 resource product and relevant provisions-- 3 omit. 4 (2) Schedule 3, definitions forest officer and State plantation 5 forest-- 6 omit. 7 (3) Schedule 3-- 8 insert-- 9 `accepted representations, for part 6D, division 6, see section 10 61QZ(2). 11 application for division see section 61 RC 12 approved form means a form approved by the chief executive 13 (lands) under section 61RU. 14 chief executive (fire) means the chief executive of the 15 department in which the Fire and Rescue Service Act 1990 is 16 administered. 17 compensation event, for part 6D, see section 61Q. 18 enforcement warrant, for part 6E, division 9, see section 19 61SU. 20 enforcing party means a person appointed by a mortgagee 21 under a registered mortgage. 22 fire commissioner means the commissioner of the 23 Queensland Fire and Rescue Service. 24 forest officer means a person appointed as a forest officer 25 under section 17. 26 licence means a licence under this Act, but does not include a 27 plantation licence. 28 licence area means the area of State plantation forest 29 specified in a plantation licence or plantation sublicence as the 30 licence area for the plantation licence or plantation 31 sublicence. 32 Page 124

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 7 Amendment of Forestry Act 1959 [s 74] mortgage, in relation to a plantation licence or plantation 1 sublicence, means a mortgage, charge or other security 2 interest granted by-- 3 (a) a plantation licensee over its rights under a plantation 4 licence; or 5 (b) a plantation sublicensee over its rights under a 6 plantation sublicence. 7 mortgagee means the person entitled to the benefit of a 8 mortgage. 9 original plantation licence, for part 6D, division 7, see 10 section 61RC(1)(a). 11 plantation forestry, for part 6D, see section 61Q. 12 plantation licence see section 61QA(1). 13 plantation licence sketch plan, for part 6E, see section 61RL. 14 plantation licensee see section 61QA(1). 15 plantation manager means a person appointed as a plantation 16 manager under section 61QG or 61QQ. 17 plantation officer means a person appointed as a plantation 18 officer under section 17. 19 plantation operator means any of the following persons-- 20 (a) a plantation licensee; 21 (b) a plantation sublicensee; 22 (c) a plantation manager; 23 (d) a registered mortgagee or an enforcing party exercising 24 power under section 61SQ. 25 plantation sublicence see section 61QO(1). 26 plantation sublicensee see section 61QO(1). 27 reasonably believes means believes on grounds that are 28 reasonable in the circumstances. 29 reasonably suspects means suspects on grounds that are 30 reasonable in the circumstances. 31 Page 125

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 8 Amendment of Forestry Regulation 1998 [s 75] register means the register of plantation licences. 1 registered means registered in the register. 2 register of plantation licences means the register kept by the 3 chief executive (lands) under section 61RM. 4 registry means the land registry under the Land Act 1994, 5 section 275. 6 related agreement means an agreement under section 7 61QB(1). 8 relevant State land, for part 6D, see section 61Q. 9 requisition see section 61TQ(1). 10 show cause notice, for part 6D, division 6, see section 11 61QY(2). 12 show cause period, for part 6D, division 6, see section 13 61QY(2)(d). 14 sketch plan, for part 6E, see section 61RL. 15 State plantation forest means an area of land declared to be a 16 State plantation forest under section 32A. 17 unformed plantation forest road see section 61QM(7).'. 18 Part 8 Amendment of Forestry 19 Regulation 1998 20 Clause 75 Regulation amended 21 This part amends the Forestry Regulation 1998. 22 Clause 76 Amendment of s 3 (Powers of forest officers in recreation 23 areas) 24 (1) Section 3, heading, after `officers'-- 25 insert-- 26 Page 126

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 8 Amendment of Forestry Regulation 1998 [s 77] `and plantation officers'. 1 (2) Section 3(1) and (3), after `forest officer'-- 2 insert-- 3 `or plantation officer'. 4 Clause 77 Amendment of s 7 (Fire control in recreation areas) 5 Section 7(2)(b), after `forest officer'-- 6 insert-- 7 `or plantation officer'. 8 Clause 78 Amendment of s 23 (Operation of vehicles in State 9 forests) 10 Section 23(1), after `forest officer'-- 11 insert-- 12 `or plantation officer'. 13 Clause 79 Amendment of s 24 (Operation of vessels in State 14 forests) 15 Section 24(2), after `forest officer'-- 16 insert-- 17 `or plantation officer'. 18 Clause 80 Insertion of new s 32A 19 After section 32-- 20 insert-- 21 `32A State plantation forests 22 `Each stated area of State forest in a lot or a plan specified in 23 schedule 4A is declared to be a State plantation forest.'. 24 Page 127

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 8 Amendment of Forestry Regulation 1998 [s 81] Clause 81 Omission of s 33 (Forest drives) 1 Section 33-- 2 omit. 3 Clause 82 Amendment of s 34 (Plan references) 4 Section 34(a), `FTY or FSM'-- 5 omit, insert-- 6 `FTY, FSM or PLP'. 7 Clause 83 Replacement of sch 4 (State forest parks) 8 Schedule 4-- 9 omit, insert-- 10 `Schedule 4 State forests parks 11 section 32 12 SFP 1 on plan FSM5 13 SFP 2 on plan FSM29 14 SFP 3 on plan FSM31 15 SFP 5 on plan FSM33 16 SFP 6 on plan FSM34 17 SFP 10 on plan FSM38 18 SFP 13 on plan FSM49 19 SFP 16 on plan FSM56 20 SFP 19 on plan FSM62 21 SFP 22 on plan FSM77 22 SFP 24 on plan FSM32 23 SFP 25 on plan FSM80'. 24 Page 128

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 8 Amendment of Forestry Regulation 1998 [s 84] Clause 84 Insertion of new sch 4A 1 After schedule 4-- 2 insert-- 3 `Schedule 4A State plantation forests 4 section 32A 5 Lot A on PLP0012 6 Lot A on PLP0034 7 Lots A, B and C on PLP0082 8 Lot A on PLP0117 9 Lots A, B, C, D, E and F on PLP0124 10 Lots A, B, C, D, E, F, G, H, I, J, K, L and M on PLP0135 11 Lot A on PLP0138 12 Lots A, B, C, D, E, F, G, H, I, J, K, L and M on PLP0185 13 Lots A, B, C, D, E, F, G, H, I and J on PLP0207 14 Lots A, B and C on PLP0220 15 Lots A and B on PLP0242 16 Lots A and B on PLP0256 17 Lots A, B, C, D, E, F, G and H on PLP0257 18 Lots A, B, C and D on PLP0258 19 Lots A, B, C, D, E, F, G, H, I, J, K, L, M, N, O, P and Q on 20 PLP0263 21 Lots A, B, C, D and E on PLP0283 22 Lots A, B, C and D on PLP0287 23 Lots A, B, C, D, E, F, G and H on PLP0289 24 Lots A, B, C, D and E on PLP0298 25 Lot A on PLP0313 26 Page 129

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 8 Amendment of Forestry Regulation 1998 [s 84] Lots A, B, C, D and E on PLP0316 1 Lot A on PLP0329 2 Lots A, B and C on PLP0379 3 Lot A on PLP0391 4 Lots A, B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, R, S, T, U, V, 5 W and X on PLP0435 6 Lots A, B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, R, S, T, U and 7 V on PLP0461 8 Lots A, B, C, D and E on PLP0546 9 Lots A, B, C, D, E, F, G, H, I, J, K, L, M, N, O and P on PLP0561 10 Lot A on PLP0575 11 Lots A, B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, R, S, T, U, V, 12 W, X and Y on PLP0589 13 Lots A, B, C, D, E, F, G, H, I, J, K and L on PLP0591 14 Lots A, AA, AB, AC, AD, AE, AF, AG, AH, AI, AJ, AK, AL, AM, 15 B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, R, S, T, U, V, W, X, Y 16 and Z on PLP0611 17 Lot A on PLP0618 18 Lot A on PLP0637 19 Lot A on PLP0639 20 Lots A, B, C and D on PLP0652 21 Lot A on PLP0658 22 Lots A, B and C on PLP0673 23 Lots A, B and C on PLP0695 24 Lots A, B and C on PLP0700 25 Lots A, B and C on PLP0766 26 Lots A, B and C on PLP0792 27 Lots A, B, C, D, E, F, G, H, I, J, K, L and M on PLP0809 28 Lots A, B, C, D, E, F and G on PLP0840 29 Page 130

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 8 Amendment of Forestry Regulation 1998 [s 84] Lots A, B and C on PLP0861 1 Lots A, B, C, D, E, F, G, H, I, J, K and L on PLP0865 2 Lots A, B, C, D, E, F, G, H, I, and J on PLP0893 3 Lot A on PLP0898 4 Lots A, B, C, D, E and F on PLP0915 5 Lot A on PLP0918 6 Lots A, B, C, D, E, F, G, H and I on PLP0952 7 Lots A, B, C and D on PLP0957 8 Lots A, B, C, D and E on PLP0958 9 Lots A and B on PLP0986 10 Lots A, B, C and D on PLP0997 11 Lots A, B, C, D, E, F, G, H and I on PLP1004 12 Lots A, B, C, D, E, F, G, H, I, J, K, L, M, N, O, P and Q on 13 PLP1229 14 Lots A, B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q and R on 15 PLP1294 16 Lots A, B, C, D, E, F, G and H on PLP1419 17 Lots A, B, C, D, E, F, G and H on PLP0169 18 Lot A on PLP0179 19 Lots A, B, C and D on PLP0191 20 Lots A and B on PLP0193 21 Lots A, B, C, D and E on PLP0200 22 Lots A and B on PLP0274 23 Lot A on PLP0310 24 Lot A on PLP0321 25 Lots A and B on PLP0355 26 Lots A and B on PLP0359 27 Lots A, B and C on PLP0466 together with Lot 1 on AP4678 28 Page 131

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 9 Amendment of Forestry Plantations Queensland Act 2006 [s 85] Lot A on PLP0531 1 Lot A on PLP0593 2 Lot A on PLP0612 3 Lots A, B, C and D on PLP0661 4 Lots A and B on PLP0753 5 Lot A on PLP0868 6 Lots A, B, C and D on PLP0909 7 Lots A and B on PLP0944 8 Lots A, B, C, D, E and F on PLP1142 9 Lots A, B and C on PLP0067'. 10 Clause 85 Omission of sch 5 (Forest drives) 11 Schedule 5-- 12 omit. 13 Part 9 Amendment of Forestry 14 Plantations Queensland Act 15 2006 16 Clause 86 Act amended 17 This part amends the Forestry Plantations Queensland Act 18 2006. 19 Clause 87 Omission of s 4 (Declaration of land as State plantation 20 forest) 21 Section 4-- 22 omit. 23 Page 132

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 9 Amendment of Forestry Plantations Queensland Act 2006 [s 88] Clause 88 Omission of s 9 (Limitation on FPQ's powers in relation to 1 State plantation forests) 2 Section 9-- 3 omit. 4 Clause 89 Amendment of s 12 (Functions of FPQ) 5 (1) Section 12(1)(a), (b), (c), (d), (e) and (g)-- 6 omit. 7 (2) Section 12(1)(j), `(a) to (i)'-- 8 omit, insert-- 9 `(f), (h) and (i)'. 10 (3) Section 12(2)(a)-- 11 omit. 12 (4) Section 12(3)-- 13 omit. 14 Clause 90 Omission of ss 35 and 36 15 Sections 35 and 36-- 16 omit. 17 Clause 91 Omission of s 39 (Application of mineral resources 18 legislation) 19 Section 39-- 20 omit. 21 Clause 92 Insertion of new pt 5, div 1 hdg 22 Part 5, before section 58-- 23 insert-- 24 Page 133

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 9 Amendment of Forestry Plantations Queensland Act 2006 [s 93] `Division 1 Transitional provisions for Act No. 1 16 of 2006'. 2 Clause 93 Omission of s 61 (Relevant proceedings) 3 Section 61-- 4 omit. 5 Clause 94 Insertion of new pt 5, div 2 6 After section 63-- 7 insert-- 8 `Division 2 Transitional provisions for Natural 9 Resources and Other Legislation 10 Amendment Act 2010 11 `64 Particular improvements on State plantation forest 12 taken to personal property of FPQ 13 `(1) This section applies to a building, structure or other 14 improvement (the improvement) on a State plantation forest 15 that-- 16 (a) was-- 17 (i) transferred to FPQ under section 60(1)(a); or 18 (ii) constructed, built, erected or placed on the State 19 plantation forest by FPQ; and 20 (b) is situated on land which forms part of the State 21 plantation forest after the day the Natural Resources and 22 Other Legislation Amendment Act 2010 receives assent. 23 `(2) The improvement is taken to be the personal property of FPQ 24 from the later of 1 May 2006 and the date on which the 25 improvement was constructed, built, erected or placed on the 26 State plantation forest by FPQ. 27 Page 134

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 10 Amendment of Forestry (State Forests) Regulation 1987 [s 95] `(3) Subsection (2) has effect according to its terms despite any 1 rule of law to the contrary.'. 2 Clause 95 Amendment of sch 2 (Dictionary) 3 Schedule 2, definitions community service obligation, natural 4 resource product, State forest and State plantation forest-- 5 omit. 6 Part 10 Amendment of Forestry (State 7 Forests) Regulation 1987 8 Clause 96 Regulation amended 9 This part amends the Forestry (State Forests) Regulation 10 1987. 11 Clause 97 Amendment of schedule (State forests) 12 Schedule, entry for SF466 on plan FTY576-- 13 omit, insert-- 14 `SF466 on plan FTY576 together with lot 1 on AP4678'. 15 Part 11 Amendments of Land Act 1994 16 commencing on assent 17 Clause 98 Act amended 18 This part amends the Land Act 1994. 19 Page 135

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 11 Amendments of Land Act 1994 commencing on assent [s 99] Clause 99 Amendment of s 15 (Leasing land) 1 Section 15(6)-- 2 omit. 3 Clause 100 Amendment of s 18 (Exchanging land) 4 Section 18-- 5 insert-- 6 `(5) If a registered owner or lessee asks for an agreement to be 7 made under this section, the request must be accompanied by 8 the fee prescribed under a regulation.'. 9 Clause 101 Amendment of s 48 (Trustees to give information and 10 allow inspection of records) 11 Section 48-- 12 insert-- 13 `(2) If a management plan mentioned in subsection (1)(a) is 14 approved, the plan may be registered in the appropriate 15 register.'. 16 Clause 102 Amendment of s 61 (Conditions on trustee leases and 17 trustee permits) 18 (1) Section 61(2) to (4)-- 19 renumber as section 61(3) to (5). 20 (2) Section 61-- 21 insert-- 22 `(2) However, a trustee lease or sublease may be for up 100 years 23 if-- 24 (a) the lease or sublease is for land the subject of an 25 operational deed of grant in trust; and 26 (b) the purpose of the lease or sublease is development that, 27 in the opinion of the Minister-- 28 Page 136

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 11 Amendments of Land Act 1994 commencing on assent [s 103] (i) will have a significant impact on the economic and 1 social development of a locality or region; and 2 (ii) is necessary to support existing or proposed 3 infrastructure that provides, or will provide, 4 services to the community. 5 Example of a purpose for paragraph (b)-- 6 construction of buildings at, or an upgrade of, an airport in a 7 regional area 8 `(6) In this section-- 9 operational deed of grant in trust means a deed of grant in 10 trust that was granted under the repealed Act for a public 11 purpose that is not a community purpose under this Act.'. 12 (3) Section 61(5), as renumbered, `subsection (3)'-- 13 omit, insert-- 14 `subsection (4)'. 15 Clause 103 Insertion of new ch 4, pt 1, div 2A, hdg 16 After section 127-- 17 insert-- 18 `Division 2A Leases for significant development' 19 Clause 104 Replacement of s 129 (Lease for significant development) 20 Section 129-- 21 omit, insert-- 22 `129 Lease for significant development 23 `(1) This section applies if-- 24 (a) an interest in a lease for a significant development is 25 made available to a person under division 1; or 26 (b) under division 2, a person applies for a lease for a 27 significant development. 28 Page 137

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 11 Amendments of Land Act 1994 commencing on assent [s 104] `(2) Before the lease is granted, the chief executive must obtain an 1 independent assessment of the person's financial and 2 managerial capabilities. 3 `(3) The person must pay the cost of the assessment. 4 `(4) The cost is not refundable. 5 `(5) The lease must not be granted to the person unless the chief 6 executive is satisfied, having regard to the independent 7 assessment, about the person's financial and managerial 8 capabilities. 9 `129A Further dealings with lease land on completion of 10 significant development 11 `(1) The Minister may include the following in a lease for 12 significant development-- 13 (a) a purchase price, or formula for calculating the purchase 14 price, if the land is converted to freehold land; 15 (b) the term of a new lease for operating and maintaining 16 the significant development, if a new lease is granted. 17 `(2) If a price, formula or term mentioned in subsection (1) is 18 included in the lease, the lessee may, after the significant 19 development is substantially complete, apply to the Minister 20 to purchase the lease land or enter a new lease to operate and 21 maintain the significant development. 22 `(3) If the Minister is satisfied the lessee has complied with the 23 terms of the lease, the Minister must-- 24 (a) for an application to purchase the land--ask the 25 Governor in Council to grant the land in fee simple to 26 the lessee; or 27 (b) for an application for a new lease--grant the 28 application. 29 `(4) If a deed of grant or new lease is issued over part of the land 30 the subject of a significant development lease, the rest of the 31 land must be dedicated as a reserve or road.'. 32 Page 138

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 11 Amendments of Land Act 1994 commencing on assent [s 105] Clause 105 Relocation and renumbering of s 131 (Amalgamation may 1 be a condition) 2 Section 131-- 3 relocate and renumber, in chapter 4, part 1, division 2, as 4 section 127A. 5 Clause 106 Insertion of new ch 4, pt 3, div 1A, hdg 6 After section 154-- 7 insert-- 8 `Division 1A Length of term on issue of term 9 lease'. 10 Clause 107 Amendment of s 155 (Length of term leases) 11 (1) Section 155(2)(a), after `development'-- 12 insert-- 13 `or the operation and maintenance of a significant 14 development'. 15 (2) Section 155(4) to (7)-- 16 omit, insert-- 17 `(4) However, a term lease for rural leasehold land may be issued 18 for a term of no more than 40 years, if-- 19 (a) the lease land is 100ha or more; and 20 (b) the Minister is satisfied the lease land is in good 21 condition. 22 `(5) Also, a term lease for rural leasehold land may be issued for a 23 term of no more than 50 years, if-- 24 (a) the lease land is 100ha or more; and 25 (b) the Minister is satisfied the lease land is in good 26 condition; and 27 (c) either or both of the following apply-- 28 Page 139

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 11 Amendments of Land Act 1994 commencing on assent [s 107] (i) if the Minister considers land (the relevant land) 1 that is all or part of the lease land should be the 2 subject of a conservation agreement or 3 conservation covenant--a conservation agreement 4 has been entered into, or a conservation covenant 5 exists, for the relevant land; 6 (ii) if the Minister considers it is appropriate for there 7 to be an indigenous access and use agreement for 8 land that is all or part of the lease land (the 9 relevant land)--an indigenous access and use 10 agreement for the relevant land has been entered 11 into; and 12 (d) the Minister considers the term appropriate, having 13 regard to either or both of the following for the lease 14 land-- 15 (i) the terms of any conservation agreement or 16 conservation covenant; 17 (ii) the terms of any indigenous access and use 18 agreement. 19 `(6) In addition, a term lease for rural leasehold land may be 20 issued for a term of no more than 75 years if all of the 21 following apply-- 22 (a) the lease land is 100ha or more; 23 (b) the Minister is satisfied the lease land is in good 24 condition; 25 (c) all or part of the lease land (the declared land) is an area 26 of international conservation significance under the 27 Cape York Peninsula Heritage Act 2007; 28 (d) if the Minister considers land (the relevant land) that is 29 all or part of the lease land should be the subject of a 30 conservation agreement or conservation covenant--a 31 conservation agreement has been entered into, or a 32 conservation covenant exists, for the relevant land; 33 (e) an indigenous land use agreement relating to the lease 34 land has been entered into; 35 Page 140

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 11 Amendments of Land Act 1994 commencing on assent [s 108] (f) the Minister considers the term is appropriate, having 1 regard to any or all of the following for the lease land-- 2 (i) the terms of any conservation agreement or 3 conservation covenant; 4 (ii) the terms of the indigenous land use agreement; 5 (iii) the size of the declared land. 6 `(7) This section is subject to sections 155A, 155B and 155BA.'. 7 Clause 108 Replacement of ss 155A and 155B 8 Sections 155A and 155B-- 9 omit, insert-- 10 `Division 1B Extension of particular term leases 11 `155AA Application of division 1B 12 `(1) This division applies to a term lease if-- 13 (a) the lease is for rural leasehold land; and 14 (b) the lease land is 100ha or more; and 15 (c) the term is 20 years or more; and 16 (d) there is a land management agreement for the lease; and 17 (e) more than 5 years have passed since the lease was 18 entered into or the land management agreement was first 19 registered, whichever is the later, unless the Minister is 20 satisfied that special circumstances exist; and 21 (f) no more than 80% of the existing term of the lease has 22 expired. 23 `(2) In this section-- 24 existing term, of the lease, does not include any extension of 25 the lease granted under section 155A, 155B or 155BA. 26 Page 141

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 11 Amendments of Land Act 1994 commencing on assent [s 108] `155A Extensions for a term of up to 40 years 1 `(1) This section applies to a lease if-- 2 (a) the term of the lease is less than 40 years; and 3 (b) the land management agreement for the lease contains a 4 commitment by the Minister to extend the lease under 5 this section; and 6 (c) the lease has not already been extended under this 7 section. 8 `(2) The lessee may apply to extend the lease. 9 `(3) The Minister may grant the application and extend the lease if 10 the Minister is satisfied-- 11 (a) the lease land is in good condition; and 12 (b) the lessee has complied with the land management 13 agreement and any requirements under it for the 14 granting of the extension. 15 `(4) However, the term of the extension-- 16 (a) can not be for more than 10 years; and 17 (b) must not extend the term of the lease beyond 40 years. 18 `155B Extensions for a term of up to 50 years 19 `(1) This section applies to a lease if-- 20 (a) the term of the lease is less than 50 years, including any 21 extension of the term under section 155A; and 22 (b) the land management agreement for the lease contains a 23 commitment by the Minister to extend the lease if either 24 or both of the following circumstances apply-- 25 (i) if the Minister considers land (the relevant land) 26 that is all or part of the lease should be the subject 27 of a conservation agreement or conservation 28 covenant--a conservation agreement has been 29 entered into, or a conservation covenant exists, for 30 the relevant land; 31 Page 142

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 11 Amendments of Land Act 1994 commencing on assent [s 108] (ii) if the Minister considers it is appropriate for there 1 to be an indigenous access and use agreement for 2 land that is all or part of the lease land (the 3 relevant land)--an indigenous access and use 4 agreement for the relevant land has been entered 5 into; and 6 (c) the lease has not already been extended under this 7 section. 8 `(2) The lessee may apply to extend the lease. 9 `(3) The Minister may grant the application and extend the lease if 10 the Minister is satisfied-- 11 (a) the lease land is in good condition; and 12 (b) the lessee has complied with any land management 13 agreement and any requirements under it for the 14 granting of the extension; and 15 (c) the lessee has complied with any conservation 16 agreement, conservation covenant or indigenous access 17 and use agreement applying to all or part of the lease 18 land; and 19 (d) the extension is appropriate, having regard to either or 20 both of the following for the lease land-- 21 (i) the terms of any conservation agreement or 22 conservation covenant; 23 (ii) the terms of any indigenous access and use 24 agreement. 25 `(4) However, the extension-- 26 (a) can not be for more than 10 years; and 27 (b) must not extend the term of the lease beyond 50 years. 28 `(5) If an extension is granted for a lease under this section at the 29 same time as an extension for the lease is granted under 30 section 155A-- 31 (a) for subsection (4)(b), the term of the lease includes the 32 extension granted under section 155A; and 33 Page 143

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 11 Amendments of Land Act 1994 commencing on assent [s 108] (b) the extension granted under this section starts on the day 1 after the day the extension granted under section 155A 2 ends. 3 `155BA Extensions for a term of up to 75 years 4 `(1) This section applies to a lease if-- 5 (a) the term of the lease is less than 75 years, including any 6 extension of the term under section 155A or 155B; and 7 (b) the land management agreement for the lease contains a 8 commitment by the Minister to extend the lease if the 9 following circumstances apply-- 10 (i) if the Minister considers land (the relevant land) 11 that is all or part of the lease should be the subject 12 of a conservation agreement or conservation 13 covenant--a conservation agreement has been 14 entered into, or a conservation covenant exists, for 15 the relevant land; 16 (ii) there is an indigenous land use agreement for the 17 lease land; and 18 (c) all or part of the lease land (the declared land) is an area 19 of international conservation significance under the 20 Cape York Peninsula Heritage Act 2007; and 21 (d) the lease has not already been extended under this 22 section. 23 `(2) The lessee may apply to extend the lease. 24 `(3) The Minister may grant the application and extend the lease if 25 the Minister is satisfied-- 26 (a) the lease land is in good condition; and 27 (b) the lessee has complied with the land management 28 agreement and any requirements under it for the 29 granting of the extension; and 30 Page 144

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 11 Amendments of Land Act 1994 commencing on assent [s 109] (c) the lessee has complied with any conservation 1 agreement or conservation covenant applying to all or 2 part of the lease land; and 3 (d) the lessee has complied with the indigenous land use 4 agreement relating to the lease land; and 5 (e) the extension is appropriate, having regard to any or all 6 of the following for the lease land-- 7 (i) the terms of any conservation agreement or 8 conservation covenant; 9 (ii) the terms of the indigenous land use agreement; 10 (iii) the size of the declared land. 11 `(4) However, the term of the extension-- 12 (a) can not be for more than 25 years; and 13 (b) must not extend the term of the lease beyond 75 years. 14 `(5) If an extension is granted for a lease under this section at the 15 same time as an extension is granted for the lease under 16 section 155A or 155B-- 17 (a) for subsection (4)(b), the term of the lease includes the 18 extension granted under sections 155A or 155B; and 19 (b) the extension granted under this section starts on the day 20 after the day all extensions granted under sections 155A 21 and 155B end.'. 22 Clause 109 Amendment of s 155C (Registering and taking of effect of 23 extension) 24 Section 155C(1), `section 155A or 155B'-- 25 omit, insert-- 26 `section 155A, 155B or 155BA'. 27 Clause 110 Replacement of s 155D (Power to reduce term of 28 extended lease) 29 Section 155D-- 30 Page 145

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 11 Amendments of Land Act 1994 commencing on assent [s 110] omit, insert-- 1 `Division 1C Reduction of particular term leases 2 `155D When Minister may reduce 3 `(1) This section applies to a term lease for rural leasehold land 4 granted for a term mentioned in section 155(3) to (6) or 5 extended under section 155A, 155B or 155BA, if any of the 6 following happens (each a relevant circumstance)-- 7 (a) if, when the lease was granted or extended, the Minister 8 was satisfied the land was in good condition--the 9 Minister considers the land is no longer in good 10 condition; 11 (b) if a conservation covenant existed or a conservation 12 agreement had been entered into for the land when the 13 lease was granted or extended-- 14 (i) the covenant or agreement ceases to be in effect for 15 the land; or 16 (ii) the Minister considers the lessee has not complied 17 with the terms of the covenant or agreement; 18 (c) if an indigenous access and use agreement had been 19 entered into for the land when the lease was granted or 20 extended-- 21 (i) the agreement ceases to be in effect for the land; or 22 (ii) the Minister considers the lessee has not complied 23 with the terms of the agreement; 24 (d) for a lease granted for a term of up to 75 years under 25 section 155(6) or extended under section 155BA--all or 26 any part of the land ceases being an area of international 27 significance under the Cape York Peninsula Heritage 28 Act 2007. 29 `(2) Subject to sections 155DA and 155E, the Minister may reduce 30 the term of the lease by the number of years the Minister 31 considers appropriate, having regard to the maximum term for 32 which the lease would have been granted or extended if the 33 Page 146

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 11 Amendments of Land Act 1994 commencing on assent [s 110] relevant circumstance had existed at the time of the grant or 1 extension. 2 `(3) However, the Minister can not reduce the term by an amount 3 that results in the lease no longer having an unexpired term. 4 `(4) In this section-- 5 term, of a lease, includes any extension of the term of the 6 lease under section 155A, 155B or 155BA, whether or not the 7 extended term has commenced. 8 `155DA Notice of intention to reduce term 9 `(1) This section applies if the Minister proposes to reduce the 10 term of a lease under section 155D. 11 `(2) However, this section does not apply to a lease if-- 12 (a) the lease has been extended under section 155A, 155B 13 or 155BA; and 14 (b) the Minister proposes to reduce the term of the lease by 15 an amount that is no more than the period for which it 16 was extended. 17 `(3) Before reducing the term, the Minister must give the lessee a 18 notice stating each of the following-- 19 (a) that the Minister proposes to reduce the term of the 20 lease; 21 (b) the number of years by which the Minister proposes to 22 reduce the term; 23 (c) the reasons for the Minister's proposal to reduce the 24 term; 25 (d) that the lessee may, within the reasonable period stated 26 in the notice, make written submissions to show why the 27 term should not be reduced. 28 `(4) In deciding whether to reduce the term, the Minister must 29 consider any written submissions made by the lessee within 30 the period stated in the notice.'. 31 Page 147

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 11 Amendments of Land Act 1994 commencing on assent [s 111] Clause 111 Amendment of s 155E (Provisions about reduction) 1 (1) Section 155E(1)-- 2 omit, insert-- 3 `(1) This section applies if-- 4 (a) the Minister decides under section 155D to reduce the 5 term of a term lease; and 6 (b) for a reduction to which section 155DA applies--the 7 Minister has complied with that section.'. 8 (2) Section 155E(2), after `must'-- 9 insert-- 10 `be'. 11 Clause 112 Insertion of new ch 4, pt 3, div 1D 12 After section 155E-- 13 insert-- 14 `Division 1D Relationship with Dividing Fences 15 Act 1953'. 16 Clause 113 Amendment of s 158 (Application for new lease) 17 Section 158(5), definition existing term, `section 155A or 18 155B'-- 19 omit, insert-- 20 `division 1B'. 21 Clause 114 Amendment of s 159A (Provisions for decision about 22 most appropriate form of tenure) 23 Section 159A-- 24 insert-- 25 `(5) Subsections (3) and (4) apply despite any provision contained 26 in the lease.'. 27 Page 148

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 11 Amendments of Land Act 1994 commencing on assent [s 115] Clause 115 Amendment of s 162 (Issuing of new lease) 1 (1) Section 162(3) to (6)-- 2 renumber as section 162(4) to (7). 3 (2) Section 162-- 4 insert-- 5 `(3) For working out the purpose of the old lease, the Minister may 6 have regard to its category and conditions.'. 7 Clause 116 Amendment of s 166 (Application to convert lease) 8 Section 166(6), definition existing term, `section 155A or 9 155B'-- 10 omit, insert-- 11 `section 155A, 155B or 155BA'. 12 Clause 117 Amendment of s 169 (Conditions of freehold offer) 13 (1) Section 169, `1 or both' 14 omit, insert-- 15 `1 or more'. 16 (2) Section 169-- 17 insert-- 18 `(c) that the purchase price for the conversion be paid in 19 full.'. 20 Clause 118 Amendment of s 176A (General provisions for deciding 21 application) 22 Section 176A(5)-- 23 omit, insert-- 24 `(5) However, the subdivision offer must be subject to the 25 condition that a land management agreement must be entered 26 into for-- 27 Page 149

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 11 Amendments of Land Act 1994 commencing on assent [s 119] (a) if there is a land management agreement for the existing 1 lease--each new lease the subject of the offer; or 2 (b) any lease the subject of the offer to which the following 3 applies-- 4 (i) the lease is for rural leasehold land; 5 (ii) the lease land is 100ha or more; 6 (iii) the term of the lease is 20 years or more.'. 7 Clause 119 Amendment of s 176L (General provisions for deciding 8 application) 9 Section 176L(5)-- 10 omit, insert-- 11 `(5) However, the amalgamation offer must be subject to the 12 condition that a land management agreement must be entered 13 into for the amalgamated lease if-- 14 (a) there is a land management agreement for any of the 15 existing leases; or 16 (b) all of the following apply-- 17 (i) the lease is for rural leasehold land; 18 (ii) the lease land is 100ha or more; 19 (iii) the term of the lease is 20 years or more.'. 20 Clause 120 Amendment of s 176W (Content of land management 21 agreement) 22 Section 176W(1)(a), `section 155A(1)(e) or 155B(1)(f)'-- 23 omit, insert-- 24 `section 155A(1)(b), 155B(1)(b) or 155BA(1)(b)'. 25 Clause 121 Amendment of s 183 (Rent payable generally) 26 (1) Section 183(1)-- 27 Page 150

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 11 Amendments of Land Act 1994 commencing on assent [s 122] omit, insert-- 1 `(1) The rent for a lease, licence or permit is-- 2 (a) if a regulation prescribes an amount for all leases in a 3 category of lease (a prescribed category)--the amount 4 prescribed; or 5 (b) otherwise--the amount calculated by multiplying the 6 valuation for rental purposes prescribed under a 7 regulation by the rate prescribed under a regulation'. 8 (2) Section 183(4)(a), `the regulations'-- 9 omit, insert-- 10 `a regulation, unless the lease is of a prescribed category.'. 11 Clause 122 Amendment of s 183A (Set rents) 12 Section 183A-- 13 insert-- 14 `(2) Also, a regulation may prescribe the rent for a particular lease 15 (also a set rent).'. 16 Clause 123 Insertion of new s 201A 17 After section 201-- 18 insert-- 19 `201A Land management agreement condition 20 `A term lease is subject to the condition that a land 21 management agreement must be entered into for the lease 22 land, if all of the following apply-- 23 (a) the lease-- 24 (i) is for rural leasehold land; 25 (ii) is for a term of 20 years of more; 26 (b) the lease land is 100ha or more.'. 27 Page 151

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 11 Amendments of Land Act 1994 commencing on assent [s 124] Clause 124 Amendment of s 214E (Power to reduce term of lease or 1 impose additional conditions) 2 Section 214E(2)-- 3 insert-- 4 `(c) require a land management agreement to be entered into 5 for the lease land.'. 6 Clause 125 Amendment of s 234 (When lease may be forfeited) 7 Section 234(d)-- 8 omit, insert-- 9 `(d) if the lessee is found by a court of competent jurisdiction 10 to have acquired the lease by fraud; or'. 11 Clause 126 Amendment of ch 5, pt 4, div 2A, hdg (Forfeiture of leases 12 by referral to court) 13 Chapter 5, part 4, division 2A, heading, after `court'-- 14 insert-- 15 `or for fraud'. 16 Clause 127 Amendment of s 238 (Application to the court for 17 forfeiture) 18 (1) Section 238(1) to (4)-- 19 renumber as section 238(2) to (5). 20 (2) Section 238-- 21 insert-- 22 `(1) This section does not apply to the forfeiture of a lease under 23 section 234(d).'. 24 Clause 128 Amendment of s 239 (Designated person's options if 25 court decides on forfeiture) 26 (1) Section 239, heading, `if court decides on forfeiture'-- 27 Page 152

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 11 Amendments of Land Act 1994 commencing on assent [s 129] omit. 1 (2) Section 239(1), `If the court' to `forfeited, the'-- 2 omit, insert-- 3 `The'. 4 (3) Section 239(1) to (3)-- 5 renumber as section 239(2) to (4). 6 (4) Section 239-- 7 insert-- 8 `(1) This section applies-- 9 (a) if the court decides the lease may be forfeited under 10 section 238; or 11 (b) for a lease that may be forfeited under section 234(d).'. 12 (5) Section 239(3) and (4) as renumbered, `subsection 13 (1)(b)(iv)'-- 14 omit, insert-- 15 `subsection (2)(b)(iv)'. 16 Clause 129 Amendment of s 240E (Sale by lessee) 17 Section 240E(1), `238(2)'-- 18 omit, insert-- 19 `238(3)'. 20 Clause 130 Amendment of s 240F (Sale by mortgagee instead of 21 forfeiture) 22 Section 240F(1), `238(2)'-- 23 omit, insert-- 24 `238(3)'. 25 Page 153

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 11 Amendments of Land Act 1994 commencing on assent [s 131] Clause 131 Amendment of s 240G (Application) 1 Section 240G(1), `238(2)'-- 2 omit, insert-- 3 `238(3)'. 4 Clause 132 Amendment of s 240J (Application of sdiv 4) 5 Section 240J, `239(1)(b)(iv)'-- 6 omit, insert-- 7 `239(2)(b)(iv)'. 8 Clause 133 Amendment of s 240N (Advice about entering transition 9 to sale agreement) 10 Section 240N(5), `239(1)(b)(iv)'-- 11 omit, insert-- 12 `239(2)(b)(iv)'. 13 Clause 134 Amendment of s 240P (Auction or sale of lease) 14 Section 240P(9)(b), `239(1)(b)(iv)'-- 15 omit, insert-- 16 `239(2)(b)(iv)'. 17 Clause 135 Amendment of s 275 (Registers comprising land registry) 18 Section 275-- 19 insert-- 20 `(ba) a register of State forests;'. 21 Clause 136 Amendment of s 276 (Registers to be kept by chief 22 executive) 23 Section 276-- 24 Page 154

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 11 Amendments of Land Act 1994 commencing on assent [s 137] insert-- 1 `(ba) a register of State forests;'. 2 Clause 137 Amendment of s 288A (Original mortgagee to confirm 3 identity of mortgagor) 4 (1) Section 288A(1)-- 5 omit, insert-- 6 `(1) This section applies to-- 7 (a) the mortgaging of a lease or sublease; and 8 (b) an amendment of a mortgage mentioned in paragraph 9 (a).'. 10 (2) Section 288A(2), from `Before the mortgage' to `executed the 11 mortgage'-- 12 omit, insert-- 13 `Before the mortgage or amendment is lodged for registration, 14 the mortgagee under the mortgage (the original mortgagee) 15 must take reasonable steps to ensure the person who executed 16 the mortgage or amendment'. 17 (3) Section 288A(4), `mortgage is registered'-- 18 omit, insert-- 19 `mortgage or amendment is registered'. 20 (4) Section 288A(5), `registration of the mortgage'-- 21 omit, insert-- 22 `registration of the mortgage or amendment'. 23 Clause 138 Amendment of s 288C (Effect of registration of mortgage 24 under Land Title Act 1994) 25 Section 288C(4)(a), after `instrument of mortgage'-- 26 insert-- 27 `or amendment of mortgage'. 28 Page 155

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 11 Amendments of Land Act 1994 commencing on assent [s 139] Clause 139 Amendment of s 290I (Division of lot on standard format 1 plan of subdivision) 2 Section 290I(2), `standard lot'-- 3 omit, insert-- 4 `standard format lot'. 5 Clause 140 Amendment of s 294I (Extinguishing a building 6 management statement) 7 Section 294I(4)-- 8 omit, insert-- 9 `(4) However, a building management statement may be 10 extinguished or partially extinguished only if-- 11 (a) for a partial extinguishment--all registered mortgagees 12 of a lot to be removed consent to the partial 13 extinguishment; or 14 (b) otherwise--all registered mortgagees of lots to which 15 the building management statement applies consent to 16 the extinguishment.'. 17 Clause 141 Amendment of s 327 (Absolute surrender of deed of 18 grant) 19 (1) Section 327, heading, `deed of grant'-- 20 omit, insert-- 21 `freehold land'. 22 (2) Section 327, `a deed of grant'-- 23 omit, insert-- 24 `freehold land'. 25 Clause 142 Amendment of s 327B (Applying to surrender) 26 Section 327B(1), `a deed of grant'-- 27 Page 156

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 11 Amendments of Land Act 1994 commencing on assent [s 143] omit, insert-- 1 `freehold land'. 2 Clause 143 Amendment of s 331 (Effect of surrender on existing 3 interests) 4 Section 331(2), `deed of grant'-- 5 omit, insert-- 6 `freehold land'. 7 Clause 144 Amendment of s 373A (Covenant by registration) 8 (1) Section 373A-- 9 insert-- 10 `(2A) A document creating the covenant may be registered even if 11 the covenantor under the instrument is the same entity as the 12 covenantee.'. 13 (2) Section 373A(9)(a)-- 14 omit, insert-- 15 `(a) an architectural, construction or landscaping standard 16 for the land or building; or'. 17 Clause 145 Amendment of s 373E (Application of div 8B) 18 Section 373E, after `natural resource'-- 19 insert-- 20 `product'. 21 Clause 146 Amendment of s 373F (Definitions for div 8B) 22 (1) Section 373F, definition natural resource-- 23 omit. 24 (2) Section 373F-- 25 Page 157

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 11 Amendments of Land Act 1994 commencing on assent [s 147] insert-- 1 `carbon sequestration, for a tree or vegetation, includes the 2 process by which the tree or vegetation absorbs carbon 3 dioxide from the atmosphere. 4 natural resource product-- 5 1 Natural resource product includes the following-- 6 (i) all parts of a tree or vegetation, whether alive or 7 dead, including parts below the ground; 8 (ii) carbon stored in a tree or vegetation; 9 (iii) carbon sequestration by a tree or vegetation. 10 2 However, natural resource product does not include a 11 tree planted to comply with a compliance notice'. 12 Clause 147 Amendment of s 374 (Details of trust must be given) 13 (1) Section 374(1)(b), from `a document stating' to `creating the 14 trust,'-- 15 omit, insert-- 16 `a certified copy of a document stating details of the trust, or 17 creating the trust,'. 18 (2) Section 374(2), `The document'-- 19 omit, insert-- 20 `A copy of the document'. 21 (3) Section 374(4)-- 22 omit. 23 (4) Section 374(5)-- 24 renumber as section 374(4). 25 Clause 148 Amendment of s 374A (Interests held in trust must be 26 registered) 27 Section 374A(a), after `interest to'-- 28 Page 158

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 11 Amendments of Land Act 1994 commencing on assent [s 149] insert-- 1 `, or a document creating the interest in favour of,'. 2 Clause 149 Amendment of s 375 (Document of transfer to trustee) 3 (1) Section 375(1)(b)-- 4 omit, insert-- 5 `(b) a certified copy of either of the following is deposited 6 with the transfer-- 7 (i) a document stating details of the trust; 8 (ii) the document creating the trust.'. 9 (2) Section 375(3)-- 10 omit. 11 Clause 150 Amendment of s 389J (Further caveat) 12 Section 389J-- 13 insert-- 14 `(3) However, subsection (2) does not apply if the original caveat 15 is a caveat prepared and registered by the chief executive 16 under section 389L.'. 17 Clause 151 Amendment of s 392 (Delegation by Minister) 18 (1) Section 392(4)(d)-- 19 omit, insert-- 20 `(d) granting an extension of a term of a lease under chapter 21 4, part 3, division 1B;'. 22 (2) Section 392-- 23 insert-- 24 `(4A) To remove any doubt, it is declared that other than the power 25 to grant an extension of a lease, the Minister may delegate any 26 of the Minister's other functions under chapter 4, part 3, 27 Page 159

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 11 Amendments of Land Act 1994 commencing on assent [s 152] division 1B to the chief executive or an officer or employee of 1 the department.'. 2 Clause 152 Insertion of new ch 9, pt 1H 3 Chapter 9-- 4 insert-- 5 `Part 1H Transitional provisions for 6 Natural Resources and Other 7 Legislation Amendment Act 8 2010 9 `521U Definitions for pt 1H 10 `In this part-- 11 commencement means the day this section commences. 12 previous, for a stated provision that includes a number, means 13 the provision that included that number as in force 14 immediately before the commencement. 15 `521V Existing term lease applications 16 `Section 155 applies to an application for a term lease that has 17 been made but not decided before the commencement. 18 `521W Existing extension applications 19 `(1) Section 155A applies to an application for an extension of a 20 term lease made under previous section 155A, but not decided 21 before the commencement. 22 `(2) Section 155B applies to an application for an extension of a 23 term lease made under previous section 155B, but not decided 24 before the commencement. 25 Page 160

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 11 Amendments of Land Act 1994 commencing on assent [s 153] `521X Application of s 155D to existing leases 1 `From the commencement, section 155D applies to leases 2 granted under previous section 155 or extended under 3 previous section 155A or 155B. 4 `521Y Application of s 201A to existing leases 5 `Section 201A does not apply to leases entered into before the 6 commencement.'. 7 Clause 153 Amendment of sch 2 (Original decisions) 8 Schedule 2, `239(1)'-- 9 omit, insert-- 10 `239(2)'. 11 Clause 154 Amendment of sch 6 (Dictionary) 12 (1) Schedule 6, definition natural resource-- 13 omit. 14 Schedule 6-- 15 insert-- 16 `carbon sequestration, for chapter 6, part 4, division 8B, see 17 section 373F. 18 natural resource product, for chapter 6, part 4, division 8B, 19 see section 373F. 20 profit a prendre includes a profit a prendre under the Forestry 21 Act 1959, section 61J.'. 22 Page 161

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 12 Amendments of Land Act 1994 commencing by proclamation [s 155] Part 12 Amendments of Land Act 1994 1 commencing by proclamation 2 Clause 155 Act amended 3 This part amends the Land Act 1994. 4 Clause 156 Replacement of s 5 (Land to which Act applies) 5 Section 5-- 6 omit, insert-- 7 `5 Land to which Act applies 8 `(1) This Act applies to all land, including land that is, whether 9 permanently or from time to time, covered by water subject to 10 tidal influence. 11 Note-- 12 Although this Act generally applies to non-freehold land, most freehold 13 land contains a reservation to the State for minerals. To that extent, this 14 Act applies to all land. 15 `(2) Layers and strata above and below the surface of land may be 16 dealt with under this Act. 17 Note-- 18 However, see section 14(3).'. 19 Clause 157 Replacement of ch 1, pt 4 hdg (Land near high-water 20 mark) 21 Chapter 1, part 4, heading-- 22 omit, insert-- 23 `Part 4 Tidal and non-tidal boundaries 24 and associated matters 25 `Division 1 Preliminary'. 26 Page 162

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 12 Amendments of Land Act 1994 commencing by proclamation [s 158] Clause 158 Amendment of s 8 (Definitions for pt 4) 1 (1) Section 8, definitions navigable river, ship and tidal navigable 2 river-- 3 omit. 4 (2) Section 8-- 5 insert-- 6 `ambulatory boundary principles has the same meaning as in 7 the Survey and Mapping Infrastructure Act 2003, part 7. 8 lake has the same meaning as in the Survey and Mapping 9 Infrastructure Act 2003, part 7. 10 non-tidal boundary (lake) has the same meaning as in the 11 Survey and Mapping Infrastructure Act 2003, part 7. 12 non-tidal boundary (watercourse) has the same meaning as 13 in the Survey and Mapping Infrastructure Act 2003, part 7. 14 right line boundary has the same meaning as in the Survey 15 and Mapping Infrastructure Act 2003, part 7. 16 right line tidal boundary, of land, means a right line boundary 17 of the land that is located approximately where a tidal 18 boundary might otherwise be located. 19 Example-- 20 The boundaries of a lot include a tidal boundary. Because of difficulties 21 arising in relation to the location at law of the tidal boundary, or for 22 some other reason, the registered owner of the lot agrees to surrender the 23 lot to the State. The lot is resurveyed, and a new deed of grant is issued 24 for the lot, but without the tidal boundary. The deed of grant and 25 associated plan of survey now provide for a right line boundary in a 26 location that is the approximate location of the previous tidal boundary. 27 tidal boundary has the same meaning as in the Survey and 28 Mapping Infrastructure Act 2003, part 7. 29 watercourse has the same meaning as in the Survey and 30 Mapping Infrastructure Act 2003, part 7.'. 31 (3) Section 8, definition tidal water, `(including any tidal 32 navigable river)'-- 33 omit, insert-- 34 Page 163

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 12 Amendments of Land Act 1994 commencing by proclamation [s 159] `, or of a watercourse, lagoon, swamp or other place where 1 water may be found,'. 2 Clause 159 Replacement of ss 9 and 10 3 Sections 9 and 10-- 4 omit, insert-- 5 `Division 2 The tidal environment 6 `9 Land adjacent to tidal boundary or right line tidal 7 boundary owned by State 8 `(1) If land has a boundary that is a tidal boundary or right line 9 tidal boundary, other land that is on the same side of the 10 boundary as the water subject to tidal influence-- 11 (a) is the property of the State; and 12 (b) may be dealt with as unallocated State land. 13 `(2) Subsection (1) does not apply to land if it is inundated land or 14 a registered interest in the land is held by someone else. 15 `(3) Subsections (1) and (2) apply even if a person owns land 16 having tidal boundaries or right line tidal boundaries on both 17 sides of water subject to tidal influence. 18 Example-- 19 A person owns land that has as its northern boundary a tidal boundary 20 that is located on the southern edge of a river. The same person also 21 owns land in the same locality that has as its southern boundary a tidal 22 boundary located on the northern edge of the same river. The ownership 23 of land on both sides of the river does not in these circumstances confer 24 on the person ownership of the river itself. 25 `(4) To remove any doubt, it is declared that, before the 26 commencement of this section, if a boundary of land (the 27 relevant land) was formed by high-water mark-- 28 (a) other land that adjoined the boundary and was below 29 high-water mark was, and always was, the property of 30 the State, unless it was inundated land or a registered 31 interest in the land was held by someone else; and 32 Page 164

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 12 Amendments of Land Act 1994 commencing by proclamation [s 160] (b) if the line of the high-water mark shifted over time by 1 gradual and imperceptible degrees, the shift was a shift 2 in the boundary of the relevant land. 3 `(5) An act before the commencement of this section to occupy, 4 use, build works or remove material or product, with or 5 without lawful authority, could never divest the State of its 6 ownership of land below high-water mark. 7 `(6) An act after the commencement of this section to occupy, use, 8 build works or remove material or product, with or without 9 lawful authority, can not divest the State of its ownership of 10 land that is on the same side of a boundary that is a tidal 11 boundary or right line tidal boundary as the water subject to 12 tidal influence. 13 `10 Land raised above high-water mark by works 14 `(1) Land in the ownership of the State that becomes raised above 15 high-water mark as a result of the carrying out of works on or 16 in proximity to the land remains owned by the State and may 17 be dealt with as unallocated State land. 18 `(2) This section does not apply to land the subject of reclamation 19 mentioned in section 127.'. 20 Clause 160 Amendment of s 13 (Power to deal with land below 21 high-water mark) 22 (1) Section 13, heading, `below high-water mark'-- 23 omit, insert-- 24 `seaward of tidal boundary or right line tidal boundary'. 25 (2) Section 13, `Land below high-water mark'-- 26 omit, insert-- 27 `Land that is on the seaward side of a tidal boundary or right 28 line tidal boundary'. 29 (3) Section 13-- 30 insert-- 31 Page 165

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 12 Amendments of Land Act 1994 commencing by proclamation [s 161] `(2) Subsection (1) does not stop land that is on the seaward side 1 of a tidal boundary or right line tidal boundary from being 2 granted in fee simple if it is the subject of reclamation 3 mentioned in section 127.'. 4 Clause 161 Insertion of new ch 1, pt 4, div 3 5 After section 13-- 6 insert-- 7 `Division 3 The non-tidal environment 8 `13A Land adjacent to non-tidal boundary (watercourse) 9 or non-tidal boundary (lake) owned by State 10 `(1) If land has a non-tidal boundary (watercourse), other land that 11 adjoins the boundary and is on the watercourse side of the 12 boundary is the property of the State. 13 `(2) If land has a non-tidal boundary (lake), other land that adjoins 14 the boundary and is on the lake side of the boundary is the 15 property of the State. 16 `(3) Subsections (1) and (2) apply despite the alienation of land by 17 the State. 18 `(4) A person (the owner) who may take water under the Water Act 19 2000, section 20(3)-- 20 (a) may exercise a right of access for the owner, the owner's 21 family, executive officers, employees, agents and stock 22 over the part (the adjacent area) of the watercourse or 23 lake that is the property of the State and that adjoins the 24 owner's land; and 25 (b) may exercise a right of grazing for the person's stock 26 over the adjacent area; and 27 (c) may bring action against a person who trespasses on the 28 adjacent area as if the owner were the registered owner 29 of the adjacent area. 30 Page 166

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 12 Amendments of Land Act 1994 commencing by proclamation [s 161] `(5) If the adjacent area is being used by the State for a purpose 1 under the Water Act 2000-- 2 (a) subsection (4)(a) and (b) applies only to the extent 3 exercising the right does not interfere with the State's 4 use of the adjacent area; and 5 (b) subsection (4)(c) does not allow the owner to bring an 6 action against a person acting on behalf of the State. 7 Note-- 8 This section effectively replaces the Water Act 2000, section 21 (Beds 9 and banks forming boundaries of land are State property), which was 10 repealed by the Natural Resources and Other Legislation Amendment 11 Act 2010. However, that Act inserted a transitional provision into the 12 Water Act 2000 to provide that the repealed section 21 continues to 13 apply for all matters arising before its repeal. 14 `13B Power to declare and deal with former watercourse 15 land 16 `(1) A person (the applicant) who is the owner of land (the 17 relevant land) having a non-tidal boundary (watercourse) 18 may apply to the chief executive (water) to have land (the 19 watercourse land) adjoining the relevant land's non-tidal 20 boundary (watercourse) declared to be former watercourse 21 land if-- 22 (a) no person holds a registered interest in the watercourse 23 land; and 24 (b) the physical location of the boundary's associated 25 watercourse has been the subject of change, whether 26 before or after the commencement of this section; and 27 (c) on an application of the ambulatory boundary 28 principles, the location at law of the non-tidal boundary 29 (watercourse) has not changed correspondingly; and 30 (d) the watercourse land has effectively ceased to be part of 31 a functioning watercourse. 32 `(2) The application must be accompanied by the prescribed fee. 33 Page 167

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 12 Amendments of Land Act 1994 commencing by proclamation [s 161] `(3) The chief executive (water) may by gazette notice declare the 1 watercourse land to be former watercourse land. 2 `(4) The chief executive (water) may make the former watercourse 3 land declaration only if-- 4 (a) the chief executive (water) has, to the extent it is 5 reasonably practicable to do so, consulted with, and 6 taken into account the views of, the owners of any land 7 that adjoins the watercourse land; and 8 (b) the chief executive (water) is satisfied that-- 9 (i) the matters stated in subsection (1)(a) to (d) are 10 true; and 11 (ii) taking a long term perspective, there is negligible 12 likelihood that the watercourse land will again 13 become part of a functioning watercourse. 14 `(5) In making the application, the applicant must give the chief 15 executive (water) enough evidence to satisfy the chief 16 executive (water) that the watercourse land has effectively 17 ceased to be part of a functioning watercourse. 18 Examples of evidence-- 19 photographs, survey material identifying topographical changes and 20 authoritative information about flow history 21 `(6) The applicant may appeal against the refusal of the 22 application, and a person entitled to be consulted under 23 subsection (4)(a) may appeal against the granting of the 24 application. 25 `(7) When the watercourse land becomes former watercourse land, 26 it does not become unallocated State land, but it may be dealt 27 with under this Act as if it were unallocated State land. 28 `(8) Despite subsection (7), the granting of an estate in fee simple, 29 a lease or a permit to occupy for the purpose of dealing with 30 the former watercourse land under that subsection is not 31 subject to any public auction, tender or ballot requirements 32 under chapter 4, part 1, division 1. 33 `(9) To remove any doubt, it is declared that the former 34 watercourse land declaration may incorporate by reference a 35 Page 168

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 12 Amendments of Land Act 1994 commencing by proclamation [s 162] map or plan held by the chief executive under this Act for 1 identifying the boundaries of the former watercourse land. 2 `(10) The chief executive (water) may delegate his or her powers 3 under this section to an appropriately qualified public service 4 officer or employee. 5 `(11) In this section-- 6 ambulatory boundary principles has the same meaning as in 7 the Survey and Mapping Infrastructure Act 2003, part 7. 8 appropriately qualified, for a person to whom a power may be 9 delegated, includes having the qualifications, experience or 10 standing appropriate to exercise the power. 11 associated watercourse, of a non-tidal boundary 12 (watercourse), means the watercourse on which the boundary 13 is based. 14 chief executive (water) means the chief executive under the 15 Water Act 2000. 16 former watercourse land means the land the subject of a 17 former watercourse land declaration. 18 former watercourse land declaration means a declaration 19 under subsection (3). 20 owner, of land, means-- 21 (a) if the land is freehold land--the registered owner of the 22 land; or 23 (b) if the land is the subject of a lease--the lessee of the 24 land; or 25 (c) if the land is a reserve--the trustee of the reserve; or 26 (d) if a person has occupation rights in relation to the land 27 under a licence or permit--the licensee or permittee.'. 28 Clause 162 Amendment of s 14 (Governor in Council may grant land) 29 (1) Section 14(3), `land below high-water mark'-- 30 omit, insert-- 31 Page 169

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 12 Amendments of Land Act 1994 commencing by proclamation [s 163] `land that adjoins a tidal boundary or right line tidal boundary 1 of other land'. 2 (2) Section 14-- 3 insert-- 4 `(5) Subsection (3) does not stop land that is on the seaward side 5 of a tidal boundary or right line tidal boundary from being 6 granted in fee simple if it is the subject of a reclamation 7 mentioned in section 127.'. 8 Clause 163 Amendment of s 15 (Leasing land) 9 (1) Section 15(4), `A lease below high-water mark'-- 10 omit, insert-- 11 `A lease for land that is on the same side of a boundary that is 12 a tidal boundary or right line tidal boundary as the water 13 subject to tidal influence'. 14 (2) Section 15(5)-- 15 omit, insert-- 16 `(5) A lease for land that is on the same side of a boundary that is a 17 tidal boundary or right line tidal boundary as the water subject 18 to tidal influence is not an approval to reclaim the lease land.'. 19 Clause 164 Amendment of s 86 (Public notice of proposed surrender) 20 Section 86(c), from `a newspaper' to `appropriate and'-- 21 omit. 22 Clause 165 Amendment of s 113 (Public notice of availability to be 23 given) 24 Section 113(2)(b), from `and in' to `appropriate'-- 25 omit. 26 Page 170

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 12 Amendments of Land Act 1994 commencing by proclamation [s 166] Clause 166 Amendment of s 116 (Interests in land may be sold after 1 auction) 2 (1) Section 116(1)(b), from `in the newspaper' to `advertised'-- 3 omit. 4 (2) Section 116-- 5 insert-- 6 `(3) The advertisement may be made in the same way as the 7 advertisement for the auction.'. 8 Clause 167 Amendment of s 126 (Strategic port land) 9 (1) Section 126(1), `If land above high-water mark'-- 10 omit, insert-- 11 `If land having a tidal boundary or right line tidal boundary'. 12 (2) Section 126(2), `if land below high-water mark'-- 13 omit, insert-- 14 `if land that is on the same side of a boundary that is a tidal 15 boundary or right line tidal boundary as the water subject to 16 tidal influence'. 17 Clause 168 Amendment s 178 (Permits below high-water mark) 18 (1) Section 178, heading, `below high-water mark'-- 19 omit, insert-- 20 `for land in area of tidal influence'. 21 (2) Section 178, `permit below high-water mark'-- 22 omit, insert-- 23 `permit for land that is on the same side of a boundary that is a 24 tidal boundary or right line tidal boundary as the water subject 25 to tidal influence'. 26 Page 171

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 12 Amendments of Land Act 1994 commencing by proclamation [s 169] Clause 169 Amendment of s 240P (Auction or sale of lease) 1 Section 240P(5), from `in a newspaper' to `is for sale'-- 2 omit. 3 Clause 170 Amendment of s 358 (Changing deeds of grant--change 4 in description or boundary of land) 5 Section 358(2)-- 6 omit, insert-- 7 `(2) A registered owner or trustee, with the Minister's written 8 approval, may surrender the land contained in the registered 9 owner's deed of grant or trustee's deed of grant in trust if, on 10 resurvey of the land, the boundaries of the land do not agree 11 with the boundaries described in the existing deed or 12 appropriate plan, and no doubt exists about the boundaries of 13 the land.'. 14 Clause 171 Amendment of s 359 (Correcting or cancelling deeds of 15 grant) 16 Section 359(1) from `and in a newspaper' to `appropriate,'-- 17 omit. 18 Clause 172 Amendment of s 360 (Governor in Council may change 19 freeholding leases) 20 Section 360(1)(c)-- 21 omit. 22 Clause 173 Amendment of s 360C (Applying to amend description of 23 lease) 24 Section 360C(1), `360(1)(a), (c) or (d)'-- 25 omit, insert-- 26 `360(1)(a) or (d)'. 27 Page 172

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 12 Amendments of Land Act 1994 commencing by proclamation [s 174] Clause 174 Amendment of s 393 (Delegation by chief executive) 1 (1) Section 393(4)(a), `below high-water mark'-- 2 omit, insert-- 3 `that is on the same side of a boundary that is a tidal boundary 4 or right line tidal boundary as the water subject to tidal 5 influence and that is'. 6 (2) Section 393(4)(b), `above high-water mark'-- 7 omit, insert-- 8 `having a tidal boundary or right line tidal boundary'. 9 Clause 175 Insertion of new ch 7, pt 1, div 6 10 Chapter 7, part 1-- 11 insert-- 12 `Division 6 Public notices other than gazette 13 notices 14 `403C Publication of particular public notices on 15 department's website 16 `(1) This section applies if an official is required under this Act to 17 give a public notice, unless the notice is a gazette notice. 18 `(2) This section applies even if this Act provides for a particular 19 way in which the notice must be given. 20 `(3) The official must publish the notice on the department's 21 website for a total of at least 10 business days. 22 `(4) The 10 business days may be, but need not necessarily be, 23 consecutive. 24 `(5) Subsection (3) does not prevent the official from also giving 25 the notice in another way the official considers appropriate. 26 `(6) In deciding to give the notice in another way, the official must 27 consider the intended audience for the notice. 28 `(7) In this section-- 29 Page 173

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 12 Amendments of Land Act 1994 commencing by proclamation [s 176] give, for a notice, includes advertising it. 1 notice includes an advertisement. 2 official means-- 3 (a) the Minister; or 4 (b) the chief executive; or 5 (c) a person performing functions or exercising powers 6 under this Act for the Minister or the chief executive. 7 public notice means a notice of a public nature that is not 8 required only to be given, or only intended for, a particular 9 person or group of persons.'. 10 Clause 176 Amendment of s 431C (Further evidentiary aids) 11 Section 431C-- 12 insert-- 13 `(e) that on a stated day, or during a stated period, a stated 14 notice was published on the department's website.'. 15 Clause 177 Omission of ch 7, pt 3B (Tidal boundary plans of 16 subdivision) 17 Chapter 7, part 3B-- 18 omit. 19 Clause 178 Insertion of new ss 521Z and 521ZA 20 Chapter 9, part 1H-- 21 insert-- 22 `521Z Continuing application of no compensation provision 23 `(1) The repealed section 431NG continues to apply after the 24 repeal of chapter 7, part 3B in relation to the operation of that 25 part. 26 Page 174

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 12 Amendments of Land Act 1994 commencing by proclamation [s 179] `(2) In this section-- 1 repealed section 431NG means section 431NG as in force 2 immediately before the commencement of this section. 3 `521ZA Lease or permit 4 `(1) This section applies if-- 5 (a) immediately before the commencement of this section, a 6 person (the relevant person) is the lessee of, or is the 7 holder of a permit to occupy, land (the relevant land) 8 that adjoins a tidal boundary of other land (the primary 9 land); and 10 (b) the relevant person is also the registered owner or lessee 11 of the primary land; and 12 (c) after the commencement of this section, because of the 13 operation of the Survey and Mapping Infrastructure Act 14 2003, part 7, division 2, subdivision 2 or 3, there 15 effectively occurs a relocation of the tidal boundary of 16 the primary land. 17 Editor's note-- 18 Survey and Mapping Infrastructure Act 2003, part 7 (Tidal and 19 non-tidal boundaries and associated matters), division 2 (Tidal 20 boundaries), subdivision 2 (Locating tidal boundaries at law 21 until registration of first new plan of survey) or 3 (Locating tidal 22 boundaries at law from registration of first new plan of survey) 23 `(2) There is taken to be a corresponding alteration of the area of 24 the permit or lease for the relevant land to ensure it continues 25 to adjoin the primary land.'. 26 Clause 179 Amendment of sch 2 (Original decisions) 27 Schedule 2-- 28 insert-- 29 `13B about the granting of an application to have land declared as former watercourse land'. Page 175

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 12 Amendments of Land Act 1994 commencing by proclamation [s 180] Clause 180 Amendment of sch 6 (Dictionary) 1 (1) Schedule 6, definitions earlier plan of subdivision, navigable 2 river, new plan of subdivision, relevant section, ship, tidal 3 boundary, tidal boundary plan of subdivision and tidal 4 navigable river-- 5 omit. 6 (2) Schedule 6-- 7 insert-- 8 `lake, for chapter 1, part 4, see section 8. 9 non-tidal boundary (lake), for chapter 1, part 4, see section 8. 10 non-tidal boundary (watercourse), for chapter 1, part 4, see 11 section 8. 12 right line boundary, for chapter 1, part 4, see section 8. 13 right line tidal boundary see section 8. 14 seaward side, of a tidal boundary or right line tidal boundary, 15 means on the same side of the boundary as the water subject 16 to tidal influence that is relevant to the identification of the 17 boundary as a tidal boundary or right line tidal boundary. 18 tidal boundary see section 8. 19 watercourse, for chapter 1, part 4, see section 8. 20 water subject to tidal influence, in relation to a boundary that 21 is a tidal boundary or right line tidal boundary, means the 22 water that is relevant to the identification of the boundary as a 23 tidal boundary or right line tidal boundary.'. 24 Page 176

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 13 Amendment of Land Title Act 1994 [s 181] Part 13 Amendment of Land Title Act 1 1994 2 Clause 181 Act amended 3 This part amends the Land Title Act 1994. 4 Clause 182 Amendment of s 9A (Land title practice manual) 5 Section 9A(2)-- 6 insert-- 7 `(ba) directions given by the chief executive under the 8 Forestry Act 1959, section 61RW; and'. 9 Clause 183 Amendment of s 11A (Original mortgagee to confirm 10 identity of mortgagor) 11 (1) Section 11A(1)-- 12 omit, insert-- 13 `(1) This section applies to-- 14 (a) the mortgaging of a lot or an interest in a lot; and 15 (b) an amendment of a mortgage mentioned in paragraph 16 (a).'. 17 (2) Section 11A(2), after `instrument of mortgage'-- 18 insert-- 19 `or amendment of mortgage'. 20 (3) Section 11A(4), `of mortgage'-- 21 omit. 22 (4) Section 11A(5), `registration of the mortgage'-- 23 omit, insert-- 24 `registration of the instrument'. 25 Page 177

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 13 Amendment of Land Title Act 1994 [s 184] Clause 184 Amendment of s 18A (Pre-examination of plans) 1 Section 18A(1)(a), `sealed'-- 2 omit, insert-- 3 `approved'. 4 Clause 185 Replacement of s 49DA (Creation of common property) 5 Section 49DA-- 6 omit, insert-- 7 `49DA Creation of common property 8 `(1) This section applies if-- 9 (a) the community management statement for a community 10 titles scheme provides for the progressive subdivision of 11 scheme land; and 12 (b) under the scheme, the scheme land is to be subdivided 13 by a plan of subdivision to create common property 14 under sections 49B to 49D. 15 `(2) The registration of the plan and recording of the new 16 community management statement for the scheme operate, 17 without anything further, to create the common property.'. 18 Clause 186 Amendment of s 49E (Division of lot on standard format 19 plan of subdivision) 20 Section 49E(2), `standard lot'-- 21 omit, insert-- 22 `standard format lot'. 23 Clause 187 Amendment of s 54B (Circumstances under which 24 building management statement may be registered) 25 Section 54B-- 26 insert-- 27 Page 178

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 13 Amendment of Land Title Act 1994 [s 188] `(3) In this section, a reference to standard format lot or volumetric 1 format lot is taken to include a reference to common property, 2 if the common property is created on registration of-- 3 (a) a building format plan of subdivision; or 4 (b) a volumetric format plan of subdivision.'. 5 Clause 188 Amendment of s 54H (Extinguishing a building 6 management statement) 7 Section 54H(4)-- 8 omit, insert-- 9 `(4) However, a building management statement may be 10 extinguished or partially extinguished only if-- 11 (a) for a partial extinguishment--all registered mortgagees 12 of a lot to be removed consent to the partial 13 extinguishment; or 14 (b) otherwise--all registered mortgagees of lots to which 15 the building management statement applies consent to 16 the extinguishment.'. 17 Clause 189 Amendment of s 97A (Covenant by registration) 18 (1) Section 97A-- 19 insert-- 20 `(2A) An instrument of covenant may be registered even if the 21 covenantor under the instrument is the same entity as the 22 covenantee.'. 23 (2) Section 97A(3)(c)-- 24 insert-- 25 `(iv) a registered lease for another lot or part of a lot.'. 26 (3) Section 97A(8)(a)-- 27 omit, insert-- 28 Page 179

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 13 Amendment of Land Title Act 1994 [s 190] `(a) an architectural, construction or landscaping standard 1 for the lot or building; or'. 2 Clause 190 Amendment of s 109 (How trusts may be registered) 3 (1) Section 109, heading, `trusts'-- 4 omit, insert-- 5 `interest as trustee'. 6 (2) Section 109(a)-- 7 omit, insert-- 8 `(a) an instrument transferring the interest to, or creating the 9 interest in favour of, the person as trustee; or'. 10 Clause 191 Amendment of s 110 (Instrument of transfer to trustee) 11 (1) Section 110(3)-- 12 omit, insert-- 13 `(3) A certified copy of a document stating details of the trust, or 14 creating the trust, must be deposited with the instrument of 15 transfer.'. 16 (2) Section 110(5)-- 17 omit. 18 Clause 192 Amendment of s 129 (Further caveat) 19 Section 129-- 20 insert-- 21 `(3) However, subsection (2) does not apply if the original caveat 22 is a caveat prepared and registered by the registrar under 23 section 17.'. 24 Clause 193 Amendment of s 130 (Compensation for improper caveat) 25 Section 130-- 26 Page 180

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 13 Amendment of Land Title Act 1994 [s 194] insert-- 1 `(4) Subsection (1) does not apply to the registrar in relation to a 2 caveat prepared and registered under section 17.'. 3 Clause 194 Amendment of s 154 (Lodging certificate of title) 4 Section 154(2)(a), `of transfer of'-- 5 omit, insert-- 6 `transferring or otherwise dealing with the interest of a lessee 7 under'. 8 Clause 195 Amendment of s 162 (Obligations of witness for 9 individual) 10 Section 162(b), `document'-- 11 omit, insert-- 12 `instrument'. 13 Clause 196 Amendment of s 185 (Exceptions to s 184) 14 (1) Section 185(1A)(a)(i), after `mortgage'-- 15 insert-- 16 `or amendment of mortgage'. 17 (2) Section 185(1A)(b), after `mortgage'-- 18 insert-- 19 `or amendment of mortgage'. 20 Clause 197 Amendment of s 189 (Matters for which there is no 21 entitlement to compensation) 22 Section 189(1)(i), `lodgment of a caveat'-- 23 omit, insert-- 24 `lodgement or continuation of a caveat prepared and 25 registered'. 26 Page 181

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 13 Amendment of Land Title Act 1994 [s 198] Clause 198 Amendment of s 189A (Limit on amounts recoverable by 1 mortgagee) 2 (1) Section 189A(1)(c)-- 3 omit, insert-- 4 `(c) the mortgagee is entitled to-- 5 (i) if the lot or interest is sold--any proceeds of the 6 sale; or 7 (ii) payment of an amount under the mortgage, if the 8 mortgage is otherwise discharged; and'. 9 (2) Section 189A(2), from `If' to `subsections'-- 10 omit, insert-- 11 `Subsections'. 12 (3) Section 189A(2)(a)-- 13 omit, insert-- 14 `(a) apply to limit the interest and costs components of the 15 proceeds of sale or an amount that the mortgagee is 16 entitled to under the mortgage; and'. 17 Clause 199 Insertion of new s 196A 18 After section 196-- 19 insert-- 20 `196A Publication of particular public notices on 21 department's website 22 `(1) This section applies if an official is required under this Act to 23 give a public notice, unless the notice is a gazette notice. 24 `(2) This section applies even if this Act provides for a particular 25 way in which the notice must be given. 26 `(3) The official must publish the notice on the department's 27 website for a total of at least 10 business days. 28 `(4) The 10 business days may be, but need not necessarily be, 29 consecutive. 30 Page 182

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 13 Amendment of Land Title Act 1994 [s 200] `(5) Subsection (3) does not prevent the official from also giving 1 the notice in another way the official considers appropriate. 2 `(6) In deciding to give the notice in another way, the official must 3 consider the intended audience for the notice. 4 `(7) In this section-- 5 give, for a notice, includes advertising it. 6 notice includes an advertisement. 7 official means-- 8 (a) the chief executive; or 9 (b) the registrar; or 10 (c) a person performing functions or exercising powers 11 under this Act for the chief executive or the registrar. 12 public notice means a notice of a public nature that is not 13 required only to be given, or only intended for, a particular 14 person or group of persons.'. 15 Clause 200 Omission of pt 10A (Tidal boundary plans of subdivision) 16 Part 10A-- 17 omit. 18 Clause 201 Insertion of new pt 12, div 5 19 Part 12-- 20 insert-- 21 `Division 5 Transitional provision for Natural 22 Resources and Other Legislation 23 Amendment Act 2010 24 `211 Continuing application of no compensation provision 25 `(1) The repealed section 191F continues to apply after the repeal 26 of part 10A in relation to the operation of that part. 27 Page 183

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 14 Amendment of Mineral Resources Act 1989 [s 202] `(2) In this section-- 1 repealed section 191F means section 191F as in force 2 immediately before the commencement of this section.'. 3 Clause 202 Amendment of sch 2 (Dictionary) 4 Schedule 2, definitions earlier plan of subdivision, public 5 interest, relevant section, tidal boundary and tidal boundary 6 plan of subdivision-- 7 omit. 8 Part 14 Amendment of Mineral 9 Resources Act 1989 10 Clause 203 Act amended 11 This part amends the Mineral Resources Act 1989. 12 Clause 204 Amendment of schedule (Dictionary) 13 Schedule, definition owner-- 14 insert-- 15 `(ha) for a licence area under the Forestry Act 1959--the 16 plantation licensee for the licence area under that Act; 17 and'. 18 Page 184

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 15 Amendment of State Development and Public Works Organisation Act 1971 [s 205] Part 15 Amendment of State 1 Development and Public Works 2 Organisation Act 1971 3 Clause 205 Act amended 4 This part amends the State Development and Public Works 5 Organisation Act 1971. 6 Clause 206 Amendment of sch 2 (Dictionary) 7 (1) Schedule 2-- 8 insert-- 9 `right line tidal boundary has the same meaning as in the 10 Land Act 1994. 11 tidal boundary has the same meaning as in the Survey and 12 Mapping Infrastructure Act 2003, part 7. 13 water subject to tidal influence, in relation to a boundary, 14 means the water that is relevant to the identification of the 15 boundary as a tidal boundary or right line tidal boundary.'. 16 (2) Schedule 2, definition foreshore, `at spring tides'-- 17 omit, insert-- 18 `at spring tides, and includes land that adjoins land with a tidal 19 boundary or right line tidal boundary and is on the same side 20 of the boundary as the water subject to tidal influence and is 21 not ordinarily covered and uncovered by the flow and ebb of 22 the tide at spring tides'. 23 Page 185

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 207] Part 16 Amendment of Survey and 1 Mapping Infrastructure Act 2 2003 3 Clause 207 Act amended 4 This part amends the Survey and Mapping Infrastructure Act 5 2003. 6 Clause 208 Amendment of s 6 (Survey standards) 7 (1) Section 6(3)(d), (e) and (f)-- 8 renumber as section 6(3)(e), (f), and (h) respectively. 9 (2) Section 6(3)-- 10 insert-- 11 `(d) how the information and plan of survey may be given to 12 the chief executive under this Act, including, for 13 example, by electronic communication; 14 `(g) particular requirements for-- 15 (i) the surveying of any tidal or non-tidal boundary; 16 and 17 (ii) making use of searchable registered, or otherwise 18 authoritative, information held by the chief 19 executive (land) or the registrar of titles for the 20 plan of survey if it is a compiled plan of survey in 21 relation to a tidal or non-tidal boundary; and 22 (iii) the type and extent of information to be supplied 23 for demonstrating consistency with the public 24 interest under part 7;'. 25 (3) Section 6-- 26 insert-- 27 `(6) In this section-- 28 Page 186

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 209] electronic communication see the Electronic Transactions 1 (Queensland) Act 2001, schedule 2.'. 2 Clause 209 Amendment of s 9 (When survey standards and survey 3 guidelines have effect) 4 Section 9(5)-- 5 omit, insert-- 6 `(5) A survey guideline takes effect-- 7 (a) on the day it is published on the department's website 8 under section 10(1); or 9 (b) if a later day is stated in the survey guideline for that 10 purpose--on the later day.'. 11 Clause 210 Insertion of new s 25A 12 Part 3, division 3-- 13 insert-- 14 `25A Special provision for taking of soil samples for 15 multiple lot declarations 16 `(1) The chief executive may direct a surveyor to take soil samples 17 from land of a type mentioned in section 21 for the purposes 18 of collecting relevant evidence under the multiple lot 19 declaration (tidal) provision or the multiple lot declaration 20 (non-tidal) provision. 21 `(2) Subject to the direction, the surveyor-- 22 (a) may enter the land and take soil samples; and 23 (b) in entering the land and taking soil samples is subject to 24 the same requirements as would apply under sections 21 25 to 24 in relation to the placing of a permanent survey 26 mark on the land. 27 `(3) The surveyor-- 28 (a) must cause as little damage as possible in taking the soil 29 samples; and 30 Page 187

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 211] (b) must not cause any permanent damage to any property 1 on the land.'. 2 Clause 211 Amendment of s 32 (Authority for cadastral surveyor to 3 act for another in particular circumstances) 4 Section 32(1), `A'-- 5 omit, insert-- 6 `A person who is or was a'. 7 Clause 212 Amendment of s 51 (Survey control register) 8 Section 51(2)(b), `section 69'-- 9 omit, insert-- 10 `section 139'. 11 Clause 213 Amendment of s 59 (Meaning of particular words used in 12 describing an administrative area boundary) 13 Section 59-- 14 insert-- 15 `(2) To remove any doubt, it is declared that definitions in this 16 section apply only in the context of administrative area 17 boundaries, and do not affect the meaning of words used in 18 this Act other than in this part.'. 19 Clause 214 Renumbering of pts 7 and 8 20 (1) Parts 7 and 8-- 21 renumber as parts 8 and 9. 22 (2) Sections 62 to 64-- 23 renumber as sections 131 to 133. 24 (3) Sections 65 to 72-- 25 renumber as sections 135 to 142. 26 Page 188

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] Clause 215 Insertion of new pt 7 1 After section 61-- 2 insert-- 3 `Part 7 Tidal and non-tidal boundaries 4 and associated matters 5 `Division 1 Preliminary 6 `62 Definitions for pt 7 7 `In this part-- 8 `ambulatory boundary principles means the principles 9 applying under, and the operation generally of, the general 10 law relating to boundaries of land bounded by water, whether 11 tidal or non-tidal, and in particular the general law relating 12 to-- 13 (a) the change to the location at law of a boundary, having 14 regard to any shift or modification over time of the 15 feature constituting the boundary, by gradual and 16 imperceptible degrees; and 17 (b) the absence of change to the location at law of a 18 boundary, having regard to any shift or modification of 19 the feature constituting the boundary that is not gradual 20 and imperceptible, including, for example, a shift or 21 modification caused by a flood or storm or another 22 rapidly occurring natural process, or by substantial 23 modification of land through human activity. 24 associated material, for a plan of survey, means anything that 25 records, whether on the plan of survey, in field notes 26 accompanying the plan of survey or anywhere else, any aspect 27 of the survey the subject of the plan of survey, including any 28 of the following-- 29 Page 189

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] (a) a measurement or analysis, including an electronically 1 produced measurement or analysis, made for, or in 2 relation to, the survey; 3 (b) information about survey marks for the survey. 4 bar, in a watercourse, means a temporary accumulation of 5 sediment-- 6 (a) that is within the bed of the watercourse; and 7 (b) to which the following characteristics can generally be 8 expected to apply-- 9 (i) it is formed during the recession of flows in the 10 watercourse when sediment is deposited in the bed 11 of the watercourse; 12 (ii) it is a dynamic feature, being changed by flow 13 events in the watercourse; 14 (iii) because of its dynamic nature as mentioned in 15 subparagraph (ii), its covering vegetation is 16 immature, and not woody; 17 (iv) it is made up of coarse materials, in particular, sand 18 and gravel. 19 bed and banks, of a lake, means the land that is normally 20 covered by the water of the lake, whether permanently or 21 intermittently, regardless of frequency, but does not include 22 adjoining land from time to time covered in flood events. 23 bench, in a watercourse, means a storage of sediment-- 24 (a) that is within the channel of the watercourse; and 25 (b) to which the following characteristics can generally be 26 expected to apply-- 27 (i) it is higher than the bed of the watercourse and bars 28 in the watercourse, but lower than the level of 29 either outer bank of the watercourse; 30 (ii) it is formed through sediment deposition during 31 flow events in the watercourse that are at or near 32 the level of either outer bank; 33 Page 190

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] (iii) it is a reasonably flat sediment deposit, reasonably 1 straight or gently curved as viewed from above, 2 and at least partly consolidated by riparian 3 vegetation; 4 (iv) it may be distinguished from a floodplain because 5 the deposits making up a floodplain are finer and 6 more layered. 7 boundary location criteria rule (non-tidal) provision means 8 section 109. 9 compiled plan of survey, in relation to any length (the 10 relevant length) of a tidal or non-tidal boundary of land, 11 means a plan of survey for the land that-- 12 (a) does not involve a resurveying of the relevant length; 13 and 14 (b) represents the relevant length using searchable 15 registered, or otherwise authoritative, information held 16 by the chief executive (land) or the registrar of titles. 17 court means the Land Court. 18 current adopted natural feature rule (non-tidal) exception 19 provision means section 104. 20 current adopted natural feature rule (non-tidal) provision 21 means section 103. 22 current adopted natural feature rule (tidal) provision means 23 section 76. 24 declaration decision means a decision mentioned in section 25 83(9)(b), 93(9)(b), 109(9)(b) or 120(9)(b). 26 deposit, in relation to a plan of survey, means deposit under a 27 registration Act. 28 depositional feature, in relation to a watercourse, means a 29 deposit of clay, sand or silt that is carried during flows of 30 water in the watercourse. 31 Examples-- 32 mud deposited in cracks in rocks 33 Page 191

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] sand deposits behind rocks 1 drainage feature means a natural landscape feature, including 2 a gully, drain, drainage depression or other erosion feature 3 that-- 4 (a) is formed by the concentration of, or operates to confine 5 or concentrate, overland flow water during and 6 immediately after rainfall events; and 7 (b) flows for only a short duration after a rainfall event, 8 regardless of the frequency of flow events; and 9 (c) commonly, does not have enough continuing flow to 10 create a riverine environment. 11 Example for paragraph (c)-- 12 There is commonly an absence of water favouring riparian 13 vegetation. 14 floodplain means an area of reasonably flat land adjacent to a 15 watercourse that-- 16 (a) is covered from time to time by floodwater overflowing 17 from the watercourse; and 18 (b) does not, other than in an upper valley reach of the 19 watercourse, confine floodwater to generally follow the 20 path of the watercourse; and 21 (c) has finer sediment deposits than the sediment deposits 22 of any bench, bar or in-stream island in the watercourse. 23 floodwater, in relation to a watercourse, means water that has 24 overflowed the outer banks of the watercourse because of a 25 flood event affecting the watercourse, and is on land near the 26 watercourse. 27 gradual change, of a natural feature, means any shift or 28 modification over time of the natural feature, by gradual and 29 imperceptible degrees. 30 indigenous land means-- 31 (a) Aboriginal land under the Aboriginal Land Act 1991 or 32 Torres Strait Islander land under the Torres Strait 33 Islander Land Act 1991; or 34 Page 192

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] (b) land that is the subject of-- 1 (i) a deed of grant in trust under the Land Act 1994, 2 granted for the benefit of Aboriginal or Torres 3 Strait Islander inhabitants or for Aboriginal or 4 Torres Strait Islander purposes; or 5 (ii) a lease granted under the Local Government 6 (Aboriginal Lands) Act 1978, section 3; or 7 (c) any of the following land in the county of Torres, parish 8 of Umaga-- 9 (i) lot 48 on crown plan TS207; 10 (ii) lot 1 on crown plan 846896; 11 (iii) lot 55 on crown plan 846896. 12 in-stream island, in a watercourse, means a storage of 13 sediment-- 14 (a) that is within the channel of the watercourse; and 15 (b) to which the following characteristics can generally be 16 expected to apply-- 17 (i) it is formed by processes within the watercourse; 18 (ii) its crest is not higher than either outer bank of the 19 watercourse; 20 (iii) it is a dynamic feature, being changed by flow 21 events in the watercourse; 22 (iv) it is made up of coarse materials, in particular, sand 23 and gravel. 24 intermittent, in relation to the flow of water in a watercourse 25 or the collection of water in a lake, includes variable, having 26 regard to seasonal variations, and to year by year variability of 27 seasons. 28 lake includes-- 29 (a) a lagoon, swamp or other natural collection of water, 30 whether permanent or intermittent; and 31 Page 193

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] (b) the bed and banks of the lake, and any other element of 1 the lake confining or containing the water of the lake. 2 Land Title Act compensation provisions means the Land Title 3 Act 1994, sections 188 and 188A. 4 lessee means a person who is registered in the land registry as 5 the holder of a lease from the State. 6 lodge means lodge under a registration Act. 7 multiple lot declaration (non-tidal) see section 120(1). 8 multiple lot declaration (non-tidal) provision means section 9 120. 10 multiple lot declaration (tidal) see section 93(1). 11 multiple lot declaration (tidal) provision means section 93. 12 new plan of survey means a plan of survey registered after the 13 commencement of this definition. 14 new source material means source material that comes into 15 force after the commencement of this definition. 16 non-tidal boundary means-- 17 (a) a non-tidal boundary (lake); or 18 (b) a non-tidal boundary (watercourse). 19 non-tidal boundary (lake) see section 99(1). 20 non-tidal boundary (watercourse) see section 99(2). 21 non-tidal boundary (watercourse) location criteria means 22 the criteria stated in section 100. 23 old plan of survey means a plan of survey registered, or 24 otherwise recorded or recognised by the State as an 25 authoritative instrument relating to land boundaries, before 26 the commencement of this definition. 27 original adopted natural feature rule (tidal) provision means 28 section 80. 29 outer bank, of a watercourse, means a line or feature that is an 30 outer bank of the watercourse under the Water Act 2000. 31 Page 194

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] overland flow water see the Water Act 2000, schedule 4. 1 plan of survey includes a plan of subdivision under a 2 registration Act. 3 Property Law Act relief provisions means the Property Law 4 Act 1974, part 11. 5 public interest includes the cultural, environmental, heritage, 6 land protection, planning, recreational, social and strategic 7 interests of the public. 8 register means register under a registration Act. 9 registered owner, in relation to land that is freehold land, 10 means the person recorded in the freehold land register as the 11 person entitled to the fee simple interest in the land. 12 registration Act means the Land Act 1994 or the Land Title 13 Act 1994, and if the context permits, includes an Act directly 14 or indirectly superseded by the Land Act 1994 or the Land 15 Title Act 1994. 16 review decision see section 125(1). 17 review notice day see section 125(3)(a). 18 right line boundary, of land, means a boundary of the land to 19 which all of the following apply-- 20 (a) the boundary is represented, or, having regard to the 21 source material for the land, would be represented, on a 22 plan of survey for the land as a straight line or series of 23 straight lines; 24 (b) the boundary's location is fixed; 25 (c) the boundary's location is marked on the ground, or, 26 having regard to the source material for the land, would 27 be marked on the ground, by the placement of survey 28 marks that-- 29 (i) delineate the boundary; or 30 (ii) allow the location of the boundary to be worked 31 out by reference to them; or 32 (iii) are a combination of subparagraphs (i) and (ii). 33 Page 195

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] scour mark, in relation to a watercourse, means-- 1 (a) a mark made by the sweeping action of suspended 2 sediments in water during flows in the watercourse; or 3 (b) a mark that can be identified by weathering stains, or the 4 absence of lichens, on erosion-resistant surfaces of a 5 bank of the watercourse. 6 Example of an erosion-resistant surface-- 7 rock 8 second exception for the original adopted natural feature 9 rule (tidal) provision (applied criteria exception) means 10 section 82. 11 single lot declaration (non-tidal) see section 109(1). 12 single lot declaration (tidal) see section 83(1). 13 source material, for land, means any instrument forming the 14 origin of the land's identity for the system of land titling or 15 land administration in place in the State under the registration 16 Acts. 17 Examples of what is and what is not source material-- 18 1 For freehold land, the most significant source material would 19 ordinarily be the most recently issued deed of grant that granted the 20 land in fee simple. A subsequently issued certificate of title under 21 the Land Title Act 1994 following a subdivision or resurvey of all or 22 part of the freehold land would not ordinarily be source material for 23 the land or a part of the land. 24 2 A map, plan of survey or other instrument that is contemporaneous 25 with the deed of grant mentioned in example 1 could also be source 26 material if, for example, it is at law justifiable to have recourse to it 27 to better interpret the deed of grant. A subsequent plan of 28 subdivision following a subdivision or resurvey of all or part of the 29 freehold land would not ordinarily be source material for the land 30 or a part of the land. 31 3 For a road or reserve under the Land Act 1994, the most significant 32 source material would ordinarily be the instrument under which the 33 road or reserve is dedicated. Source material could also include a 34 map or a plan of survey that is contemporaneous with the 35 dedication of the road or reserve. 36 Page 196

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] 4 For land that is the subject of a lease, licence or permit under the 1 Land Act 1994, the most significant source material would 2 ordinarily be the instrument of lease, licence or permit. Source 3 material could also include an entry in a register relating to the 4 identity of the land before the grant of the lease, licence or permit, 5 and a map or a plan of survey that is contemporaneous with the 6 grant of the lease, licence or permit or the making of the entry in the 7 register. 8 specified tidal boundary see section 71. 9 subsequent new plan of survey, for land having a tidal or 10 non-tidal boundary, means a new plan of survey for the land, 11 other than the first new plan of survey for the land. 12 sudden change, of a natural feature, means any shift or 13 modification of the natural feature that is not gradual change 14 of the natural feature, whether by a natural process or by 15 human activity. 16 tidal boundary see section 70. 17 tidal boundary location criteria means the criteria stated in 18 section 72. 19 watercourse see section 63. 20 `63 Meaning of watercourse for pt 7 21 `(1) In this part, a watercourse is a river, creek or other stream, 22 including a stream in the form of an anabranch or a tributary, 23 in which water flows permanently or intermittently, regardless 24 of the frequency of flow events-- 25 (a) in a natural channel, whether artificially modified or not; 26 or 27 (b) in an artificial channel that has changed the course of the 28 stream. 29 `(2) A watercourse includes any of the following located in it-- 30 (a) in-stream islands; 31 (b) benches; 32 Page 197

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] (c) bars. 1 `(3) However, a watercourse does not include a drainage feature. 2 `64 Application of ambulatory boundary principles in pt 7 3 `(1) It is the intention of this part that the ambulatory boundary 4 principles are taken to have always applied, and that the 5 principles continue to apply, unless their operation is excluded 6 by contrary intention. 7 `(2) Subsection (1) applies to a tidal boundary or non-tidal 8 boundary even if the application to the boundary of division 2, 9 subdivisions 2 to 4, or division 4, subdivisions 2 to 4, is 10 excluded. 11 `(3) Subsection (4) applies if-- 12 (a) a provision of this part provides for the application of 13 the ambulatory boundary principles to a natural feature; 14 and 15 (b) the natural feature is other than, strictly, the boundary 16 between land and water. 17 Examples of natural features for paragraph (b)-- 18 the top of a bank 19 the toe of a dune 20 a depositional feature 21 `(4) The ambulatory boundary principles are taken to apply, and if 22 the case requires, are taken to have applied, to the natural 23 feature, to the greatest practicable extent, in the same way and 24 to the same extent as they apply, or would have applied, to the 25 boundary, between the land and the water, of land bounded by 26 water. 27 `65 Special provision for reserved plans of survey 28 `(1) This section applies if, after the commencement of this 29 section, a reserved plan of survey is registered for land having 30 Page 198

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] a tidal boundary or non-tidal boundary (watercourse) before 1 any other plan of survey is registered for the land. 2 `(2) The reserved plan of survey-- 3 (a) is taken to be, for division 2, subdivision 2, or division 4, 4 subdivision 2, the old plan of survey that is the most 5 recently registered or that is otherwise currently 6 authoritative in relation to the land; and 7 (b) takes the place of any other old plan of survey for the 8 land that, immediately before the registration of the 9 reserved plan of survey, was the most recently registered 10 or otherwise currently authoritative old plan of survey in 11 relation to the land. 12 `(3) For the application of division 2, subdivision 3, or division 4, 13 subdivision 3 to the land, the reserved plan of survey is taken 14 not to be the first new plan of survey for the land. 15 `(4) For this section, a plan of survey is a reserved plan of survey 16 if-- 17 (a) either-- 18 (i) it was prepared and registered only for the purpose 19 of a disposal of, or other dealing with, part of the 20 land under the Land Act 1994 for a public purpose 21 under that Act; or 22 (ii) it was prepared and registered for the purposes of a 23 development approval under the Sustainable 24 Planning Act 2009 in force at the commencement 25 of this section, other than for the purposes of an 26 amendment of the development approval made 27 after the commencement of this section; or 28 (iii) it was prepared on the basis of a survey performed 29 before the commencement of this section for the 30 purposes of works directed or authorised under a 31 regulation under the State Development and Public 32 Works Organisation Act 1971 to be undertaken or 33 completed by an entity; and 34 Page 199

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] Example for subparagraph (iii)-- 1 Under the State Development and Public Works 2 Organisation Act 1971, section 140 (Powers in respect of 3 particular works on foreshore and under waters), a 4 regulation may authorise the coordinator-general to 5 undertake works in, on, over, through or across a 6 foreshore. 7 (b) the chief executive or the registrar of titles is satisfied 8 that paragraph (a)(i), (ii) or (iii) applies, and has 9 certified the plan of survey as being a reserved plan of 10 survey for this section. 11 `Division 2 Tidal boundaries 12 `Subdivision 1 Preliminary 13 `66 Non-application of sdivs 2 to 4 to particular land 14 `(1) Subdivisions 2 to 4 do not apply to the location at law of a 15 tidal boundary of land if-- 16 (a) the tidal boundary is a specified tidal boundary; or 17 (b) the land is indigenous land; or 18 (c) the land is strategic port land under the Transport 19 Infrastructure Act 1994; or 20 (d) the land is, or is a part of, a forest reserve or protected 21 area under the Nature Conservation Act 1992; or 22 (e) the land is comprised in a State forest under the Forestry 23 Act 1959. 24 `(2) If land ceases to be strategic port land under the Transport 25 Infrastructure Act 1994, subdivisions 2 to 4 commence to 26 apply to the location at law of the tidal boundary of the land as 27 if, for that land, the subdivisions commenced to apply when 28 the land ceased to be strategic port land. 29 Page 200

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] `(3) If the status of land as a protected area under the Nature 1 Conservation Act 1992 is revoked and the land is not 2 immediately again dedicated as a protected area under that 3 Act, subdivisions 2 to 4 commence to apply to the location at 4 law of the tidal boundary of the land as if, for that land, the 5 subdivisions commenced to apply on the revocation. 6 `(4) If the status of land as a forest reserve under the Nature 7 Conservation Act 1992 is revoked and the land is not 8 immediately again dedicated as a forest reserve under that Act 9 or immediately dedicated as a protected area under that Act, 10 subdivisions 2 to 4 commence to apply to the location at law 11 of the tidal boundary of the land as if, for that land, the 12 subdivisions commenced to apply on the revocation. 13 `(5) If the status of land as being comprised in a State forest under 14 the Forestry Act 1959 is revoked and the land is not 15 immediately again declared as a State forest under that Act or 16 immediately dedicated as a forest reserve or protected area 17 under the Nature Conservation Act 1992, subdivisions 2 to 4 18 commence to apply to the location at law of the tidal boundary 19 of the land as if, for that land, the subdivisions commenced to 20 apply on the revocation. 21 `(6) In this section-- 22 protected area, under the Nature Conservation Act 1992, does 23 not include any of the following under that Act-- 24 (a) a coordinated conservation area; 25 (b) a wilderness area; 26 (c) a World Heritage management area; 27 (d) an international agreement area. 28 `67 Overview of sdivs 2 to 6 29 `(1) Subdivision 2 provides for the location at law of a tidal 30 boundary of land for the period starting when this division 31 commences and ending on the registration of the first new 32 plan of survey to be registered for the land after this division 33 commences. 34 Page 201

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] `(2) Generally, subdivision 2 provides for the location at law of the 1 tidal boundary to be the current location of the natural feature 2 adopted in the currently applicable plan of survey. 3 `(3) Subdivision 3 provides for the location at law of a tidal 4 boundary of land from the registration of the first new plan of 5 survey for the land. 6 `(4) Generally, subdivision 3 provides for the location at law of the 7 tidal boundary to be the current location of the natural feature 8 adopted in the first old plan of survey that adopted a natural 9 feature, whether or not it is the most recently registered plan 10 of survey for the land. 11 `(5) Exceptions to the general rules under subdivisions 2 and 3 12 include providing for the location of tidal boundaries in a way 13 that involves the application of some or all of the tidal 14 boundary location criteria. 15 `(6) Subdivision 4 provides for the location at law of a tidal 16 boundary of land from the registration of any subsequent new 17 plan of survey for the land, and relies on the feature identified 18 under subdivision 3. 19 `(7) Subdivision 5 provides for the location at law of a tidal 20 boundary of land, and for the non-application of subdivisions 21 2 to 4, if the land's source material is new source material. 22 `(8) Subdivision 6 provides for particular matters relating to the 23 location at law of boundaries of esplanades not otherwise 24 provided for in subdivisions 2 to 5. 25 `68 Operation of sdivs 2 to 4 26 `The provisions of subdivisions 2 to 4 about the location at 27 law of a tidal boundary of land prevail even if their operation 28 is inconsistent with-- 29 (a) the representation of the tidal boundary on a plan of 30 survey; or 31 (b) the location at law of the tidal boundary under any 32 source material for the land immediately before the 33 commencement of this division. 34 Page 202

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] `69 Noting of advice about operation of sdiv 3 or div 3 1 `(1) The chief executive (land) or the registrar of titles may keep 2 records in a way that a search of the appropriate register kept 3 by the chief executive (land) or the registrar of titles will show 4 any case where-- 5 (a) subdivision 3 would, or is likely to, have the effect of 6 locating a tidal boundary in a different place, or in a 7 different form, from its location or form as provided for 8 under subdivision 2; or 9 Example of possible record for paragraph (a)-- 10 Land could be the subject of a record for paragraph (a) if its old 11 plan of survey adopts the line of intersection of a tidal plane with 12 land (for example, the line of mean high water springs) but, on 13 the registration of its first new plan of survey, its tidal boundary 14 will be a different feature (for example the top of a bank). 15 (b) a multiple lot declaration (tidal) has been made and the 16 declaration would, or is likely to, have the effect of 17 locating a tidal boundary in a different place, or in a 18 different form, from its location or form as provided for 19 under this division. 20 Example of possible record for paragraph (b)-- 21 Land could be the subject of a record for paragraph (b) if it and 22 other land are the subject of a multiple lot declaration (tidal), so 23 that on the registration of the next new plan of survey for the 24 land, the tidal boundary will be in accordance with the boundary 25 provided for in the declaration. 26 `(2) Neither the chief executive (land), the registrar of titles nor 27 anyone else, including the State, has an obligation of any type, 28 arising under this Act or otherwise, to take any action 29 subsection (1) allows. 30 `(3) No fee is payable for the recording of anything under 31 subsection (1). 32 `70 Meaning of tidal boundary of land 33 `(1) A boundary of land is a tidal boundary if-- 34 Page 203

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] (a) under the source material for the land, the boundary is 1 identified, either expressly or by necessary 2 implication-- 3 (i) with reference to water, however described, that is 4 subject to tidal influence; or 5 Examples of tidal boundary identifiers for subparagraph 6 (i)-- 7 `by the right bank of the Maroochy River' 8 `high-water mark' 9 `by the high-water mark of Moreton Bay' 10 `mean high water springs' 11 other similar language relating to a bay, ocean or sea 12 other similar language relating to a watercourse at a 13 place where the waters of the watercourse are subject 14 to tidal influence 15 (ii) with reference to a natural feature or other thing 16 whose existence and location are dependent on, or 17 otherwise linked to the existence and location of, 18 water that is subject to tidal influence; and 19 Example of tidal boundary identifier for subparagraph (ii)-- 20 the top of a bank running in proximity to the water's edge 21 at spring tide 22 (b) having regard to how the boundary is identified, it can 23 not appropriately be represented on a plan of survey as a 24 right line boundary. 25 `(2) For subsection (1), a boundary that would otherwise be a tidal 26 boundary under subsection (1) is taken not to be a tidal 27 boundary to the extent it is located upstream of a downstream 28 limit declared under the Water Act 2000, section 1006(1). 29 `71 Meaning of specified tidal boundary 30 `(1) A tidal boundary of land is a specified tidal boundary if, 31 under the source material for the land, the identification of the 32 tidal boundary is specific rather than general in relation to the 33 Page 204

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] element of tidal influence, including for example, a 1 description of the tidal boundary that-- 2 (a) uses the expression `mean high water springs' or 3 `ordinary high-water mark at spring tides'; or 4 (b) uses some other form of words to describe the tidal 5 boundary that indicates a clear intention to locate the 6 boundary at a specific tidal plane. 7 `(2) Also, a tidal boundary of land is a specified tidal boundary 8 if-- 9 (a) under the source material for the land, the identification 10 of the tidal boundary is general rather than specific in 11 relation to the element of tidal influence; and 12 (b) the source material was in force for the land on the 13 commencement of this division and is, or includes, a 14 deed of grant issued under-- 15 (i) the Land Act 1994, section 358(3)(b) following a 16 surrender under section 358(2)(b) of that Act; or 17 (ii) provisions of the repealed Land Act 1962, or an 18 earlier Act relating to the creation of freehold land, 19 corresponding to the provisions mentioned in 20 subparagraph (i). 21 `(3) Without limiting what may be an identification of a tidal 22 boundary that is general rather than specific, the identification 23 of a tidal boundary is taken to be general rather than specific if 24 it does not use a form of words to describe the tidal boundary 25 that indicates a clear intention to locate the boundary at a 26 specific tidal plane. 27 Examples of forms of words achieving a general rather than specific 28 identification of a tidal boundary-- 29 `by the left bank of the Endeavour River' 30 `high-water mark' 31 `by the high-water mark of Moreton Bay' 32 Page 205

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] `72 Tidal boundary location criteria 1 `(1) The first criterion is that the tidal boundary must not be 2 subject to tidal inundation under any combination of 3 astronomical conditions and average meteorological 4 conditions. 5 `(2) The second criterion is that the tidal boundary must be on the 6 landward side of any sandy beaches, foredunes, mangroves, 7 sea grasses, salt grasses, salt marshes, saltpans, intertidal flats, 8 tidal sand banks and other similar features. 9 `(3) The third criterion is that the location of the tidal boundary 10 must be consistent with the public interest. 11 `(4) The fourth criterion is that the tidal boundary-- 12 (a) must be in a stable location that has been shown to have 13 long term sustainability under normal seasonal events; 14 and 15 (b) must not require any construction to keep it free from 16 complete or partial inundation or obliteration. 17 `(5) The fifth criterion is that a natural feature must be adopted as 18 the tidal boundary unless there is no natural feature in 19 reasonable proximity to where the tidal boundary must be 20 located, having regard to the description of the boundary in 21 the source material for the land. 22 Examples of natural features-- 23 the top or bottom of a bank, a natural geomorphic form, a change in 24 grade of the natural landform, a change in type of native vegetation 25 `(6) The sixth criterion is that if the fourth criterion can not be 26 complied with, and no natural feature can be adopted under 27 the fifth criterion, the tidal boundary chosen must nevertheless 28 be on the landward side of any sandy beaches or sandy dunes 29 and of any active erosion areas that have no natural 30 vegetation. 31 Example for subsection (6)-- 32 The edge of vegetation that is above the highest astronomical tide could 33 be adopted as the tidal boundary. 34 Page 206

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] `73 Special regulation-making power to support tidal 1 boundary location 2 `(1) Regulations made under this Act may include a regulation 3 supporting the application of the provisions of this division 4 relating to tidal boundaries. 5 `(2) Without limiting subsection (1), a regulation may, by words 6 and diagrams, indicate how the provisions of this division 7 must be applied in varying tidal environments. 8 `(3) A regulation under this section is not invalid only because it 9 supplements the provisions of this Act by providing greater 10 certainty than would otherwise be the case in relation to the 11 location at law of tidal boundaries in particular circumstances 12 or types of circumstances. 13 `74 Special provision for plans of survey approved 14 under stay provisions 15 `(1) This section applies if-- 16 (a) the registration of a plan of survey of land (the relevant 17 plan of survey) was approved under the Land Act 1994, 18 section 431ND or 431NE or the Land Title Act 1994, 19 section 191D or 191E before the repeal of those 20 provisions; and 21 (b) the relevant plan of survey-- 22 (i) was registered before the commencement of this 23 section; or 24 (ii) is registered after the commencement of this 25 section. 26 `(2) Subsections (3) to (5) apply to the land-- 27 (a) if subsection (1)(b)(i) applies--from the 28 commencement of this section; or 29 (b) if subsection (1)(b)(ii) applies--from the registration of 30 the relevant plan of survey. 31 `(3) The tidal boundary of the land is, at law, the natural feature or 32 anything else represented on the plan of survey. 33 Page 207

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] `(4) To decide where the tidal boundary is located at any time after 1 the commencement of this section or the registration of the 2 relevant plan of survey, there must be taken into account the 3 application of the ambulatory boundary principles to a natural 4 feature represented on the relevant plan of survey. 5 `(5) Subdivisions 2 and 3 do not apply to the location at law of the 6 tidal boundary of the land, but subdivision 4 applies as if the 7 relevant plan of survey were the first new plan of survey for 8 the land. 9 `Subdivision 2 Locating tidal boundaries at law 10 until registration of first new plan of 11 survey 12 `75 Application of sdiv 2 13 `This subdivision provides for the location at law of a tidal 14 boundary of land at any time in the period starting when this 15 division commences and ending on the registration of the first 16 new plan of survey for the land. 17 `76 Current adopted natural feature rule (tidal) 18 provision 19 `(1) This section applies if an old plan of survey that is the most 20 recently registered or that is otherwise currently authoritative 21 in relation to the land, together with any associated material 22 for the plan, clearly adopted a natural feature for representing 23 the tidal boundary. 24 Examples of natural features-- 25 landward edge of mangroves, seaward edge of grassy dune, stable toe of 26 dune 27 `(2) For subsection (1), the adoption of the line of intersection of a 28 tidal plane with land is sufficient to have achieved the 29 adoption of a natural feature. 30 Page 208

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] `(3) The tidal boundary is, at law, the adopted natural feature, 1 taking into account the application of the ambulatory 2 boundary principles to the adopted natural feature both before 3 and after the commencement of this division. 4 Example for subsection (3)-- 5 Immediately before the commencement of this division, the tidal 6 boundary may have been located, at law, having regard strictly to the 7 terms of a deed of grant, at the current line of mean high water springs. 8 Further, the most recently registered plan of survey for the land adopted 9 the line of mean high water springs, rather than a natural feature such as 10 the top of a bank, to represent the tidal boundary. On the 11 commencement of this division, the tidal boundary remains as mean 12 high water springs until a new plan of survey is registered. 13 `(4) Subsection (3) has effect even if, immediately before the 14 commencement of this division, the tidal boundary was at law 15 located in a different place. 16 Example for subsection (4)-- 17 Immediately before the commencement of this division, the tidal 18 boundary may have been located at law, having regard strictly to the 19 terms of a deed of grant, at the current line of mean high water springs. 20 However, the most recently registered plan of survey for the land 21 adopted an adjacent top of a bank to represent the boundary. On the 22 commencement of this division, the tidal boundary changes to the 23 current location of the top of the bank. 24 `77 Current adopted natural feature rule (tidal) 25 exception provision 26 `(1) This section provides for the location at law of the tidal 27 boundary if the current adopted natural feature rule (tidal) 28 provision does not apply or can not practicably be applied to 29 establish the location. 30 `(2) The tidal boundary is, at law, located where it could most 31 reasonably be expected to be located, under subdivision 3, if 32 the first new plan of survey were to be registered for the land. 33 `(3) To decide where the tidal boundary is located at any time, 34 there must be taken into account the application of the 35 ambulatory boundary principles to any natural feature that 36 locates the tidal boundary under subsection (2). 37 Page 209

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] `(4) Without limiting subsection (1), the current adopted natural 1 feature rule (tidal) provision can not practicably be applied if 2 all of the following apply-- 3 (a) there is an old plan of survey that is the most recently 4 registered or that is otherwise currently authoritative in 5 relation to the land; 6 (b) the plan, together with any associated material for the 7 plan, adopted a natural feature for representing the tidal 8 boundary; 9 (c) either-- 10 (i) it is not possible to make a meaningful 11 correspondence between the evidence on the plan 12 of the adopted natural feature and evidence on the 13 ground of any natural feature; or 14 (ii) the adopted natural feature is currently located in a 15 substantially different location than it would have 16 been if it had been the subject of only gradual 17 change since it was adopted in the old plan of 18 survey. 19 `Subdivision 3 Locating tidal boundaries at law 20 from registration of first new plan of 21 survey 22 `78 Application of sdiv 3 23 `This subdivision provides for the location at law of a tidal 24 boundary of land on and from the registration of the first new 25 plan of survey for the land. 26 Note-- 27 The operation of this subdivision could be displaced by a multiple lot 28 declaration (tidal) under division 3. 29 Page 210

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] `79 Special requirement to support the operation of 1 sdiv 3 2 `(1) The representation of the tidal boundary on the first new plan 3 of survey for the land together with associated material, 4 including a plan of survey lodged but not registered before the 5 commencement of this division, must, to the greatest 6 practicable extent, be consistent with the location at law of the 7 boundary as provided for in this subdivision. 8 `(2) Subject to subsection (3), the first new plan of survey must not 9 be a compiled plan of survey in relation to any length of the 10 tidal boundary. 11 `(3) The first new plan of survey may be a compiled plan of survey 12 in relation to any length (the relevant length) of the tidal 13 boundary if-- 14 (a) on the registration of the new plan of survey, the original 15 adopted natural feature rule (tidal) provision applies to 16 locate, at law, the tidal boundary as a natural feature 17 adopted in an old plan of survey (the original plan of 18 survey) to represent the tidal boundary; and 19 (b) the searchable registered, or otherwise authoritative, 20 information held by the chief executive (land) or the 21 registrar of titles obtained for the purposes of the first 22 new plan of survey, to the extent it is a compiled plan of 23 survey in relation to the relevant length-- 24 (i) is information included in the original plan of 25 survey and associated material for the original plan 26 of survey; or 27 (ii) is information that allows the tidal boundary to be 28 represented substantially as required under 29 subsection (1), even though no resurvey of the 30 boundary has occurred. 31 Note-- 32 This subsection will allow for some or all of the tidal boundary to be 33 represented on the first new plan of survey without a resurvey, but will 34 not affect the actual location at law of the tidal boundary under this 35 subdivision. 36 Page 211

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] `(4) Subsection (3) applies even if a later old plan of survey 1 represented the tidal boundary generally closer to the water 2 subject to tidal influence than the natural feature mentioned in 3 subsection (3)(a). 4 Example-- 5 A later old plan of survey represented the tidal boundary at mean high 6 water springs. 7 `(5) In this section-- 8 water subject to tidal influence, in relation to a tidal 9 boundary, means the water that is relevant to the identification 10 of the boundary as a tidal boundary. 11 `80 Original adopted natural feature rule (tidal) provision 12 `(1) This section applies if-- 13 (a) an old plan of survey, whether or not it is the most 14 recently registered or is otherwise currently authoritative 15 in relation to the land, together with any associated 16 material for the plan, clearly adopted a natural feature 17 for representing the tidal boundary; and 18 (b) the old plan of survey was the first plan of survey to be 19 registered or otherwise become authoritative in relation 20 to the land that adopted a natural feature for 21 representing the tidal boundary. 22 `(2) For subsection (1)(a), the adoption of the line of intersection 23 of a tidal plane with land is not sufficient to have achieved the 24 adoption of a natural feature. 25 `(3) The tidal boundary is, at law, the adopted natural feature, 26 taking into account the application of the ambulatory 27 boundary principles to the adopted natural feature, both 28 before and after the registration of the first new plan of survey. 29 `(4) Subsection (3) has effect even if, immediately before the 30 registration of the first new plan of survey, the tidal boundary 31 was, at law, having regard to the provisions of subdivision 2, 32 located in a different place. 33 Page 212

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] Example for subsection (4)-- 1 Immediately before the registration of the first new plan of survey, the 2 tidal boundary may have been located at law, having regard to 3 subdivision 2, at the current line of mean high water springs. However, 4 the first old plan of survey for the land to adopt a natural feature (other 5 than the line of intersection of a tidal plane with land) to represent the 6 tidal boundary adopted an adjacent top of a bank to represent the 7 boundary. On the registration of the first new plan of survey, the location 8 at law of the tidal boundary changes to the current location of the top of 9 the bank. 10 `81 First exception for the original adopted natural 11 feature rule (tidal) provision (alternative natural 12 feature exception) 13 `(1) This section provides for an alternative for the location at law 14 of the tidal boundary, but applies only if the land was freehold 15 land when this section commenced. 16 `(2) This alternative applies if, although the original adopted 17 natural feature rule (tidal) provision can be applied to 18 establish the location (the location under the rule), there 19 exists, on the same side of the location under the rule as the 20 water subject to tidal influence, a natural feature (the 21 alternative natural feature) that complies with the 22 requirements of the first, second, third and fourth of the tidal 23 boundary location criteria. 24 `(3) The cadastral surveyor may adopt the alternative natural 25 feature for representation on the first new plan of survey. 26 `(4) The surveyor must consult with the registered owner of the 27 land before acting under subsection (3). 28 `(5) If the alternative natural feature is adopted, the tidal boundary 29 is, at law, the alternative natural feature, taking into account 30 the application of the ambulatory boundary principles to the 31 adopted natural feature after the registration of the first new 32 plan of survey. 33 `(6) In this section-- 34 Page 213

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] water subject to tidal influence, in relation to the location 1 under the rule, means the water that is relevant to the 2 identification of the tidal boundary as a tidal boundary. 3 `82 Second exception for the original adopted natural 4 feature rule (tidal) provision (applied criteria 5 exception) 6 `(1) This section provides for the location at law of the tidal 7 boundary if the original adopted natural feature rule (tidal) 8 provision can not be applied because there is no old plan of 9 survey that, together with any associated material for the plan, 10 clearly adopted a natural feature (other than the line of 11 intersection of a tidal plane with land) for representing the 12 tidal boundary. 13 `(2) The tidal boundary is, at law, the natural feature or anything 14 else that to the greatest practicable extent complies with the 15 requirements of all the tidal boundary location criteria and is 16 represented on the first new plan of survey. 17 `(3) To decide where the tidal boundary is located at any time after 18 the registration of the first new plan of survey, there must be 19 taken into account the application of the ambulatory boundary 20 principles to a natural feature represented on the first new plan 21 of survey under subsection (2). 22 `(4) Subsection (2) does not apply if a single lot declaration (tidal) 23 is made about the location of the tidal boundary. 24 `83 Third exception for the original adopted natural 25 feature rule (tidal) provision (chief executive single 26 lot declaration (tidal) exception) 27 `(1) This section provides for the location at law of the tidal 28 boundary if the chief executive has by gazette notice under 29 this section made a declaration (a single lot declaration 30 (tidal)) about the location of the tidal boundary. 31 `(2) The tidal boundary is, at law, the natural feature or anything 32 else declared by the chief executive to be the tidal boundary 33 for the land under the single lot declaration (tidal). 34 Page 214

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] `(3) To decide where the tidal boundary is located at any time after 1 the registration of the first new plan of survey, there must be 2 taken into account the application of the ambulatory boundary 3 principles to any natural feature declared by the chief 4 executive to be the tidal boundary. 5 `(4) The chief executive may make a single lot declaration (tidal) 6 only if a plan of survey intended to be the first new plan of 7 survey for the land has been lodged, or has been deposited 8 with a view to subsequent lodgement. 9 `(5) Subject to subsection (4), the chief executive may make a 10 single lot declaration (tidal) only if-- 11 (a) the original adopted natural feature rule (tidal) would 12 otherwise apply, but-- 13 (i) it is not possible to make a meaningful 14 correspondence between the evidence on the old 15 plan of survey of the adopted natural feature and 16 evidence on the ground of any natural feature; or 17 (ii) the adopted natural feature is currently located in a 18 substantially different location than it would have 19 been if it had been the subject of only gradual 20 change since it was adopted in the old plan of 21 survey; or 22 (iii) the natural feature adopted for representing the 23 tidal boundary in the old plan of survey was 24 different from the natural feature that should have 25 been adopted, having regard to the directions and 26 instructions applying to surveyors when the old 27 plan of survey was prepared; or 28 (iv) because of circumstances not otherwise provided 29 for in this subdivision, the original adopted natural 30 feature rule (tidal) provision can not practicably be 31 applied; or 32 (b) all of the following apply-- 33 (i) the directions and instructions applying to 34 surveyors when an old plan of survey was prepared 35 were not correctly complied with; 36 Page 215

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] (ii) if they had been complied with, the old plan of 1 survey would have been the first old plan of survey 2 to be registered or otherwise become authoritative 3 in relation to the land that clearly adopted a natural 4 feature (other than the line of intersection of a tidal 5 plane with land) for representing the tidal 6 boundary; 7 (iii) the old plan of survey instead incorrectly adopted a 8 line other than a natural feature for representing the 9 tidal boundary; or 10 (c) the second exception for the original adopted natural 11 feature rule (tidal) provision (applied criteria exception) 12 would otherwise have applied to locate the tidal 13 boundary. 14 `(6) To remove any doubt, it is declared that the single lot 15 declaration (tidal) may incorporate by reference a map or plan 16 held by the chief executive for identifying the tidal boundary. 17 `(7) In making a single lot declaration (tidal), the chief executive 18 must ensure the location of the tidal boundary to the greatest 19 practicable extent complies with the requirements of the first, 20 second and third of the tidal boundary location criteria. 21 `(8) The chief executive or registrar of titles may defer dealing 22 with a first new plan of survey that has been lodged, or has 23 been deposited with a view to subsequent lodgement, to allow 24 the chief executive a reasonable time to investigate and make 25 a single lot declaration (tidal). 26 `(9) The following requirements apply for the making of a single 27 lot declaration (tidal)-- 28 (a) the chief executive must take reasonable steps to obtain 29 the views of any registered owner or lessee of the land 30 about the proposed declaration; 31 (b) the chief executive must make a decision that the chief 32 executive intends to make the proposed declaration, and 33 what the terms of the proposed declaration are to be; 34 (c) the chief executive must give the registered owner or 35 lessee of the land written notice of-- 36 Page 216

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] (i) the decision and reasons for the decision; and 1 (ii) the owner's or lessee's right to appeal against the 2 decision and how the appeal is started; 3 (d) after any review of, and any appeal against, the decision 4 have been completed, the chief executive may, unless 5 following review or appeal no declaration is to be made, 6 make the single lot declaration (tidal)-- 7 (i) in accordance with the decision; or 8 (ii) if the decision is amended or substituted as a result 9 of review or appeal--in accordance with the 10 decision as amended or substituted. 11 `Subdivision 4 Locating tidal boundaries at law 12 from registration of subsequent 13 new plan of survey 14 `84 Application of sdiv 4 15 `This subdivision provides for the location at law of a tidal 16 boundary of land on and from the registration of a subsequent 17 new plan of survey for the land. 18 Note-- 19 The operation of this subdivision could be displaced by a multiple lot 20 declaration (tidal) under division 3. 21 `85 Special requirement to support the operation of 22 sdiv 4 23 `(1) The representation of the tidal boundary on the subsequent 24 new plan of survey for the land together with associated 25 material must, to the greatest practicable extent, be consistent 26 with the location at law of the boundary as provided for in this 27 subdivision. 28 Page 217

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] `(2) Subject to subsections (3) and (4), the subsequent new plan of 1 survey must not be a compiled plan of survey in relation to 2 any length of the tidal boundary. 3 `(3) The subsequent new plan of survey may be a compiled plan of 4 survey in relation to any length (the relevant length) of the 5 tidal boundary if-- 6 (a) the first new plan of survey was not a compiled plan of 7 survey in relation to the relevant length; and 8 (b) the searchable registered, or otherwise authoritative, 9 information held by the chief executive (land) or the 10 registrar of titles obtained for the purposes of the 11 subsequent new plan of survey in relation to the relevant 12 length is information included in the first new plan of 13 survey and associated material for the first new plan of 14 survey. 15 `(4) Further, the subsequent new plan of survey may be a compiled 16 plan of survey in relation to any length (also the relevant 17 length) of the tidal boundary if-- 18 (a) the first new plan of survey was a compiled plan in 19 relation to the relevant length; and 20 (b) the searchable registered, or otherwise authoritative, 21 information held by the chief executive (land) or the 22 registrar of titles obtained for the purposes of the 23 subsequent new plan of survey in relation to the relevant 24 length is the same information obtained for the purposes 25 of the first new plan of survey. 26 Note for subsections (3) and (4)-- 27 Subsections (3) and (4) will allow for some or all of the tidal boundary 28 to be represented on the subsequent new plan of survey without a 29 resurvey, but will not affect the actual location at law of the tidal 30 boundary under this subdivision. 31 `86 First new plan of survey adopted feature rule (tidal) 32 `The tidal boundary is, at law, the natural feature or other 33 thing that constituted the tidal boundary immediately before 34 the registration of the subsequent new plan of survey, taking 35 Page 218

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] into account, if a natural feature constituted the boundary, the 1 application of the ambulatory boundary principles to the 2 natural feature, both before and after the registration of the 3 subsequent new plan of survey. 4 `Subdivision 5 Locating tidal boundaries at law on 5 coming into force of new source 6 material 7 `87 Application of sdiv 5 8 `This subdivision provides for the location at law of a tidal 9 boundary of land on and from the coming into force of new 10 source material for the land. 11 `88 Special requirement to support the operation of 12 sdiv 5 13 `The representation of the tidal boundary on any plan of 14 survey for the land together with associated material must, to 15 the greatest practicable extent, be consistent with the location 16 at law of the boundary as provided for in this subdivision. 17 `89 New source material adopted feature rule (tidal) 18 `(1) Subdivisions 2 to 4 do not apply to the land. 19 `(2) The tidal boundary is, at law, the natural feature or other thing 20 identified as the tidal boundary in the new source material, 21 taking into account, if a natural feature is identified as the 22 boundary, the application of the ambulatory boundary 23 principles to the natural feature, after the coming into force of 24 the source material. 25 `(3) For subsection (2), the adoption of the line of intersection of a 26 tidal plane with land is not sufficient to have achieved the 27 adoption of a natural feature unless the land is, or is about to 28 become, indigenous land or a protected area under the Nature 29 Conservation Act 1992. 30 Page 219

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] `Subdivision 6 Esplanades 1 `90 Boundary of land with excluded or dedicated 2 esplanade--source material coming into force 3 before commencement 4 `(1) This section applies if-- 5 (a) either-- 6 (i) source material for land (the relevant land) coming 7 into force before the commencement of this 8 section, and still in force on the commencement, 9 provides for the exclusion of land from the relevant 10 land for an esplanade; or 11 (ii) source material for land (also the relevant land) 12 coming into force before the commencement of 13 this section, and still in force on the 14 commencement, provides for the reservation of 15 land within the relevant land for an esplanade, and 16 the land the subject of the reservation has been 17 dedicated as an esplanade; and 18 (b) the esplanade is bounded on one side by a tidal 19 boundary and on the other by the relevant land; and 20 (c) the boundary between the relevant land and the 21 esplanade (the esplanade boundary of the relevant land) 22 is not a right line boundary. 23 `(2) To remove any doubt, it is declared that subdivisions 2 to 4 24 apply to the location at law of the tidal boundary unless, under 25 subdivision 1, the subdivisions do not apply to its location. 26 `(3) The location of the esplanade boundary of the relevant land is 27 taken to have been fixed as if it were a right line boundary on 28 the coming into force of-- 29 (a) if subsection (1)(a)(i) applies--the source material; or 30 (b) if subsection (1)(a)(ii) applies--the dedication. 31 Page 220

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] Example for subsection (3)-- 1 If the tidal boundary of the esplanade is for any reason eroded, there is 2 no corresponding change in the location of the esplanade boundary of 3 the relevant land. 4 `(4) If subsection (1)(a)(i) applies and a survey was performed to 5 identify the location of the tidal boundary, the esplanade 6 boundary is located at the offset from the tidal boundary as 7 provided for in-- 8 (a) the source material; and 9 (b) the plan of the survey, whether or not the plan forms part 10 of the source material. 11 `(5) If subsection (1)(a)(i) applies and no survey was performed to 12 identify the location of the tidal boundary, the esplanade 13 boundary is located at an offset, consistent with the source 14 material, from the tidal boundary's location at law when the 15 source material came into force. 16 `(6) If subsection (1)(a)(ii) applies, the esplanade boundary is 17 located as provided for in the dedication of the esplanade. 18 `91 Boundary of land with excluded or dedicated 19 esplanade--source material coming into force after 20 commencement 21 `(1) This section applies if-- 22 (a) either-- 23 (i) the source material for land (the relevant land) 24 coming into force after the commencement of this 25 section provides for the exclusion of land from the 26 relevant land for an esplanade; or 27 (ii) the source material for land (also the relevant 28 land) coming into force after the commencement 29 of this section provides for the reservation of land 30 within the relevant land for an esplanade, and the 31 land the subject of the reservation has been 32 dedicated as an esplanade; and 33 Page 221

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] (b) the esplanade is bounded on one side by a tidal 1 boundary and on the other by the relevant land; and 2 (c) the boundary between the relevant land and the 3 esplanade (the esplanade boundary of the relevant land) 4 is not a right line boundary. 5 `(2) To remove any doubt, it is declared that subdivision 5 applies 6 to the location at law of the tidal boundary. 7 `(3) The location of the esplanade boundary of the relevant land is 8 taken to have been fixed as if it were a right line boundary on 9 the coming into force of-- 10 (a) if subsection (1)(a)(i) applies--the source material; or 11 (b) if subsection (1)(a)(ii) applies--the dedication. 12 Example for subsection (3)-- 13 If the tidal boundary of the esplanade is for any reason eroded, there is 14 no corresponding change in the location of the esplanade boundary of 15 the relevant land. 16 `(4) If subsection (1)(a)(i) applies and a survey is performed to 17 identify the location of the tidal boundary, the esplanade 18 boundary is located at the offset from the tidal boundary as 19 provided for in-- 20 (a) the source material; and 21 (b) the plan of the survey, whether or not the plan forms part 22 of the source material. 23 `(5) If subsection (1)(a)(i) applies and no survey is performed to 24 identify the location of the tidal boundary, the esplanade 25 boundary is located at an offset, consistent with the source 26 material, from the tidal boundary's location at law when the 27 source material came into force. 28 `(6) If subsection (1)(a)(ii) applies, the esplanade boundary is 29 located as provided for in the dedication of the esplanade. 30 `92 Boundary of land subject to reservation of 31 esplanade, before dedication 32 `(1) This section applies if-- 33 Page 222

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] (a) the source material that is currently in force for land (the 1 relevant land) provides for the reservation of land 2 within the relevant land for an esplanade; and 3 (b) the land proposed as an esplanade has not been 4 dedicated as an esplanade in accordance with the 5 reservation; and 6 (c) dedication of the esplanade in accordance with the 7 source material would require that the esplanade be 8 bounded on one side by a tidal boundary and on the 9 other by the relevant land. 10 `(2) To remove any doubt, it is declared that, until the esplanade is 11 dedicated in accordance with the reservation-- 12 (a) if the source material came into force before the 13 commencement of this section, subdivisions 2 to 4 apply 14 to the location at law of the tidal boundary of the 15 relevant land unless, under subdivision 1, the 16 subdivisions do not apply to its location; and 17 (b) if the source material came into force after the 18 commencement of this section, subdivision 5 applies to 19 the location at law of the tidal boundary of the relevant 20 land. 21 `Division 3 Miscellaneous issues in the tidal 22 environment 23 `93 Multiple lot declaration (tidal) provision 24 `(1) The chief executive may by gazette notice make a declaration 25 (a multiple lot declaration (tidal)) under this section 26 providing for the location of the tidal boundary of each of 2 or 27 more lots (each a relevant lot). 28 `(2) The chief executive may make a multiple lot declaration 29 (tidal) even if, for any relevant lot-- 30 (a) a new plan of survey has been lodged, or has been 31 deposited with a view to subsequent lodgement; or 32 Page 223

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] (b) there has already been 1 or more new plans of survey 1 registered. 2 `(3) However, the chief executive may make a multiple lot 3 declaration (tidal) only if-- 4 (a) at any time before the commencement of this section-- 5 (i) all the land (the original land) constituting the 6 relevant lots was the subject of one old plan of 7 survey (the original old plan of survey), whether 8 or not any other land was also the subject of the 9 original old plan of survey; and 10 (ii) the tidal boundary of the original land was 11 represented on the original old plan of survey by an 12 adopted natural feature (the original adopted 13 natural feature); and 14 Example for paragraph (a)-- 15 The original land was represented on the original old plan of 16 survey as being bounded by a bank, and if the original land was 17 made up of 2 or more lots, each lot was represented on the 18 original plan of survey as being bounded by a separate length of 19 that bank. 20 (b) on a consideration of all the relevant lots taken as a 21 whole, it is not possible to make a meaningful 22 correspondence between the evidence on the original 23 old plan of survey of the adopted natural feature and 24 evidence on the ground of any natural feature because 25 the original adopted natural feature has effectively been 26 obliterated. 27 `(4) On and from the registration of the next new plan of survey 28 for a relevant lot-- 29 (a) the tidal boundary of the relevant lot is, at law, the line 30 that would describe on the ground the line declared by 31 the chief executive to be the tidal boundary for the lot 32 under the multiple lot declaration (tidal); and 33 (b) the tidal boundary is taken to be fixed as if it were a 34 right line boundary. 35 Page 224

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] `(5) To remove any doubt, it is declared that the gazette notice may 1 incorporate by reference a map or plan held by the chief 2 executive for identifying the location of the tidal boundary of 3 the relevant lots. 4 `(6) In making a multiple lot declaration (tidal), the chief executive 5 must ensure, to the greatest practicable extent, having regard 6 to all relevant evidence, that the location of the tidal boundary 7 as provided for in the multiple lot declaration (tidal) is not 8 generally closer to the water subject to tidal influence than the 9 last known location of the original adopted natural feature. 10 `(7) On and from the registration of the next new plan of survey 11 for a relevant lot, the lot is taken still to be land having a tidal 12 boundary, even though the location of the boundary becomes 13 fixed as provided for under subsection (4)(b). 14 `(8) The chief executive or registrar of titles may defer dealing 15 with a new plan of survey that has been lodged, or has been 16 deposited with a view to subsequent lodgement, to allow the 17 chief executive a reasonable time to investigate the making of, 18 and make, a multiple lot declaration (tidal). 19 `(9) The following requirements apply for the making of a 20 multiple lot declaration (tidal)-- 21 (a) the chief executive must take reasonable steps to obtain 22 the views of any registered owner or lessee of each 23 relevant lot about the proposed declaration; 24 (b) the chief executive must make a decision that the chief 25 executive intends to make the proposed declaration, and 26 what the terms of the proposed declaration are to be; 27 (c) the chief executive must give the registered owner or 28 lessee of each relevant lot written notice of-- 29 (i) the decision and reasons for the decision; and 30 (ii) the owner's or lessee's right to appeal against the 31 decision and how the appeal is started; 32 (d) after any review of, and any appeal against, the decision 33 have been completed, the chief executive may, unless, 34 Page 225

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] following review or appeal no declaration is to be made, 1 make the multiple lot declaration (tidal)-- 2 (i) in accordance with the decision; or 3 (ii) if the decision is amended or substituted as a result 4 of review or appeal--in accordance with the 5 decision as amended or substituted. 6 `(10) Division 2, subdivisions 3 and 4 do not provide for the 7 location at law of a tidal boundary of land to the extent their 8 operation would be inconsistent with the operation of this 9 section. 10 `(11) In this section-- 11 relevant evidence means-- 12 (a) all evidence about the history of the location of the 13 original adopted natural feature that is reasonably 14 available to the chief executive; and 15 (b) if soil samples are taken generally in the last known 16 location of the original adopted natural feature--the 17 results of analysis of the samples. 18 water subject to tidal influence, in relation to a tidal 19 boundary, means the water that is relevant to the identification 20 of the boundary as a tidal boundary. 21 `94 No compensation for operation of div 2 or this 22 division 23 `A person is not entitled to relief or compensation from the 24 State or anyone else, under this Act, the Land Title Act 25 compensation provisions, the Property Law Act relief 26 provisions or otherwise, for deprivation of an interest of any 27 type in land, or for loss or damage of any kind, arising out of 28 the operation of division 2 or this division, including in 29 particular-- 30 (a) the relocation, at law, of a tidal boundary because of the 31 operation of-- 32 Page 226

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] (i) the current adopted natural feature rule (tidal) 1 provision, or any exception to it, under division 2, 2 subdivision 2; or 3 (ii) the original adopted natural feature rule (tidal) 4 provision, or any exception to it, under division 2, 5 subdivision 3; or 6 (iii) the multiple lot declaration (tidal) provision; or 7 (b) the chief executive (land) or the registrar of titles 8 keeping, or not keeping, a record about the likely 9 location of a tidal boundary arising out of the operation 10 of division 2, subdivision 3 or out of a multiple lot 11 declaration (tidal). 12 `Division 4 Non-tidal boundaries 13 `Subdivision 1 Preliminary 14 `95 Non-application of sdivs 2 to 4 to particular land 15 `(1) Subdivisions 2 to 4 do not apply to the location at law of a 16 non-tidal boundary (watercourse) of land if the land-- 17 (a) is indigenous land; or 18 (b) is, or is a part of, a forest reserve or protected area under 19 the Nature Conservation Act 1992; or 20 (c) is comprised in a State forest under the Forestry Act 21 1959. 22 `(2) If the status of land as a protected area under the Nature 23 Conservation Act 1992 is revoked and the land is not 24 immediately again dedicated as a protected area under that 25 Act, subdivisions 2 to 4 commence to apply to the location at 26 law of the non-tidal boundary (watercourse) of the land as if, 27 for that land, the subdivisions commenced to apply on the 28 revocation. 29 Page 227

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] `(3) If the status of land as a forest reserve under the Nature 1 Conservation Act 1992 is revoked and the land is not 2 immediately again dedicated as a forest reserve under that Act 3 or immediately dedicated as a protected area under that Act, 4 subdivisions 2 to 4 commence to apply to the location at law 5 of the non-tidal boundary (watercourse) of the land as if, for 6 that land, the subdivisions commenced to apply on the 7 revocation. 8 `(4) If the status of land as being comprised in a State forest under 9 the Forestry Act 1959 is revoked and the land is not 10 immediately again declared as a State forest under that Act or 11 immediately dedicated as a protected area under the Nature 12 Conservation Act 1992, subdivisions 2 to 4 commence to 13 apply to the location at law of the non-tidal boundary 14 (watercourse) of the land as if, for that land, the subdivisions 15 commenced to apply on the revocation. 16 `(5) In this section-- 17 protected area, under the Nature Conservation Act 1992, does 18 not include any of the following under that Act-- 19 (a) a coordinated conservation area; 20 (b) a wilderness area; 21 (c) a World Heritage management area; 22 (d) an international agreement area. 23 `96 Overview of sdivs 2 to 6 24 `(1) Subdivision 2 provides for the location at law of a non-tidal 25 boundary (watercourse) of land for the period starting when 26 this division commences and ending on the registration of the 27 first new plan of survey to be registered for the land after this 28 division commences. 29 `(2) Generally, subdivision 2 provides for the location at law of the 30 non-tidal boundary (watercourse) to be the current location of 31 the natural feature adopted in the currently applicable plan of 32 survey, although it also provides for circumstances in which 33 the location at law of the non-tidal boundary (watercourse) 34 Page 228

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] must be decided on an application of the non-tidal boundary 1 (watercourse) location criteria. 2 `(3) Subdivision 3 provides for the location at law of a non-tidal 3 boundary (watercourse) of land from the registration of the 4 first new plan of survey for the land. 5 `(4) Subdivision 3 provides for the location at law of the non-tidal 6 boundary (watercourse) to be decided on an application of the 7 non-tidal boundary (watercourse) location criteria. 8 `(5) Subdivision 4 provides for the location at law of a non-tidal 9 boundary (watercourse) of land from the registration of any 10 subsequent new plan of survey for the land, and relies on the 11 feature identified under subdivision 3. 12 `(6) Subdivision 5 provides for the location at law of a non-tidal 13 boundary (watercourse) of land, and for the non-application of 14 subdivisions 2 to 4, if the land's source material is new source 15 material. 16 `(7) Generally, subdivision 6 provides for the location at law of a 17 non-tidal boundary (lake) at any time. 18 `97 Operation of sdivs 2 to 4 19 `The provisions of subdivisions 2 to 4 about the location at 20 law of a non-tidal boundary (watercourse) of land prevail even 21 if their operation is inconsistent with-- 22 (a) the representation of the non-tidal boundary 23 (watercourse) on a plan of survey; or 24 (b) the location at law of the non-tidal boundary 25 (watercourse) under any source material for the land 26 immediately before the commencement of this division. 27 `98 Noting of advice about operation of sdiv 3 or div 5 28 `(1) The chief executive (land) or the registrar of titles may keep 29 records in a way that a search of the appropriate register kept 30 by the chief executive (land) or the registrar of titles will show 31 any case where-- 32 Page 229

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] (a) subdivision 3 would, or is likely to, have the effect of 1 locating a non-tidal boundary (watercourse) in a 2 different place, or in a different form, from its location 3 or form as provided for under subdivision 2; or 4 Example of possible record for paragraph (a)-- 5 Land could be the subject of a record for paragraph (a) if its old 6 plan of survey adopts the line of intersection of a particular level 7 of water flow with land but, on the registration of its first new 8 plan of survey, its non-tidal boundary (watercourse) will be a 9 different feature (for example, a scour mark). 10 (b) a multiple lot declaration (non-tidal) has been made and 11 the declaration would, or is likely to, have the effect of 12 locating a non-tidal boundary (watercourse) in a 13 different place, or in a different form, from its location 14 or form as provided for under this division. 15 Example of possible record for paragraph (b)-- 16 Land could be the subject of a record for paragraph (b) if it and 17 other land are the subject of a multiple lot declaration 18 (non-tidal), so that on the registration of the next new plan of 19 survey for the land, the non-tidal boundary (watercourse) will be 20 in accordance with the boundary provided for in the declaration. 21 `(2) Neither the chief executive (land), the registrar or titles nor 22 anyone else, including the State, has an obligation of any type, 23 arising under this Act or otherwise, to take any action 24 subsection (1) allows. 25 `(3) No fee is payable for the recording of anything under 26 subsection (1). 27 `99 Meanings of non-tidal boundary (lake) and 28 non-tidal boundary (watercourse) 29 `(1) A boundary of land is a non-tidal boundary (lake) if-- 30 (a) under the source material for the land, the boundary is 31 identified with reference to a lake, however described; 32 and 33 Examples of non-tidal boundary (lake) identifiers-- 34 the southwest bank of Victoria Lake 35 Page 230

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] the eastern bank of the lagoon 1 (b) having regard to how the boundary is identified, no part 2 of the boundary can appropriately be represented on a 3 plan of survey as a right line boundary; and 4 (c) the boundary is not a tidal boundary. 5 `(2) A boundary of land is a non-tidal boundary (watercourse) 6 if-- 7 (a) under the source material for the land, the boundary is 8 identified, either expressly or by necessary 9 implication-- 10 (i) with reference to a watercourse, however 11 described; or 12 Examples of non-tidal boundary (watercourse) identifiers for 13 subparagraph (i)-- 14 the left bank of the Calladoon Anabranch of the 15 Macintyre River 16 the Bremer River 17 the left bank of the Gregory River 18 (ii) with reference to a natural feature or other thing 19 whose existence and location are dependent on, or 20 otherwise linked to the existence and location of, a 21 watercourse; and 22 Examples of non-tidal boundary (watercourse) identifiers for 23 subparagraph (ii)-- 24 an identified scour mark on a bank of the watercourse 25 an identified depositional feature on a bank of the 26 watercourse 27 (b) having regard to how the boundary is identified, no part 28 of the boundary can appropriately be represented on a 29 plan of survey as a right line boundary; and 30 (c) the boundary is not a tidal boundary. 31 Page 231

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] `100 Non-tidal boundary (watercourse) location criteria 1 `(1) The first criterion to be satisfied for identifying a non-tidal 2 boundary (watercourse) is that the boundary must be a feature 3 that-- 4 (a) occurs naturally; and 5 (b) is within the channel, but not within the bed, of the 6 watercourse; and 7 (c) is in a reasonably stable location. 8 `(2) The second criterion to be satisfied for identifying a non-tidal 9 boundary (watercourse) is that the boundary must not be a 10 feature, or form part of a feature-- 11 (a) that is the line of intersection of a particular level of 12 water flow with land; or 13 (b) that is transient in nature, including, for example, any of 14 the following transient features within the 15 watercourse-- 16 (i) a bar; 17 (ii) an in-stream island; 18 (iii) a sand or reed bank. 19 `(3) The third criterion to be satisfied for identifying a non-tidal 20 boundary (watercourse) is that the boundary must be any of 21 the following-- 22 (a) the top of a bank; 23 (b) a particular line of change in a grade of a landform; 24 (c) a naturally occurring change in vegetation; 25 (d) another feature of sufficient substance to be an 26 equivalent of a feature mentioned in paragraph (a), (b) 27 or (c). 28 `(4) However, if it is not practicable to identify a non-tidal 29 boundary (watercourse) under subsection (3), the alternative 30 third criterion to be satisfied for identifying a non-tidal 31 boundary (watercourse) is that the boundary must be-- 32 Page 232

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] (a) a depositional feature or a scour mark; or 1 (b) if it is not practicable to identify a depositional feature 2 or a scour mark but a non-tidal boundary (watercourse) 3 is identifiable on the other side of the watercourse on an 4 application of this section--the line that runs along the 5 bank of the watercourse at the same level as the 6 non-tidal boundary (watercourse) on the other side. 7 `(5) A line identified under subsection (4)(b) is taken to be a 8 natural feature for the provisions of this part applying to 9 natural features. 10 Example for subsection (5)-- 11 A provision of this part that applies the ambulatory boundary principles 12 to a natural feature will also have the effect of applying the ambulatory 13 boundary principles to the line identified under subsection (4)(b). 14 `101 Special regulation-making power to support 15 non-tidal boundary (watercourse) location 16 `(1) Regulations made under this Act may include a regulation 17 supporting the application of the provisions of this division 18 relating to non-tidal boundaries (watercourse). 19 `(2) Without limiting subsection (1), a regulation may, by words 20 and diagrams-- 21 (a) indicate how the provisions of this division must be 22 applied in varying environments and in watercourses, or 23 sections of watercourses, of varying profiles; or 24 (b) give examples of the occurrence of depositional features 25 and scour marks and of how they may locate non-tidal 26 boundaries (watercourse); or 27 (c) explain how a bench, bar, in-stream island or sand or 28 reed bank in a watercourse may typically be recognised; 29 or 30 (d) explain how an anabranch may be recognised. 31 `(3) A regulation under this section is not invalid only because it 32 supplements the provisions of this Act by providing greater 33 certainty than would otherwise be the case in relation to the 34 Page 233

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] location at law of non-tidal boundaries (watercourse) in 1 particular circumstances or types of circumstances. 2 `Subdivision 2 Locating non-tidal boundaries 3 (watercourse) at law until 4 registration of first new plan of 5 survey 6 `102 Application of sdiv 2 7 `This subdivision provides for the location at law of a 8 non-tidal boundary (watercourse) of land at any time in the 9 period starting when this division commences and ending on 10 the registration of the first new plan of survey for the land. 11 `103 Current adopted natural feature rule (non-tidal) 12 provision 13 `(1) This section applies if an old plan of survey that is the most 14 recently registered or that is otherwise currently authoritative 15 in relation to the land, together with any associated material 16 for the plan, clearly adopted a natural feature for representing 17 the non-tidal boundary (watercourse). 18 Examples of natural features-- 19 the top of a bank 20 a particular point of change in a grade of landform 21 a naturally occurring change in vegetation 22 the edge of useable land 23 `(2) For subsection (1)-- 24 (a) the adoption of the line of intersection of a particular 25 level of water flow with land is sufficient to have 26 achieved the adoption of a natural feature; and 27 (b) the adoption of the notional middle line separating the 28 lands of owners on opposite sides of the watercourse is 29 Page 234

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] not sufficient to have achieved the adoption of a natural 1 feature. 2 `(3) The non-tidal boundary (watercourse) is, at law, the adopted 3 natural feature, taking into account the application of the 4 ambulatory boundary principles to the adopted natural feature 5 both before and after the commencement of this division. 6 Example for subsection (3)-- 7 Immediately before the commencement of this division, the non-tidal 8 boundary (watercourse) may have been located, at law, having regard 9 strictly to the terms of a deed of grant and the provisions of the Water 10 Act 2000, at the line of a particular level of flow in the watercourse. The 11 most recently registered plan of survey for the land adopted a natural 12 feature such as the line of the edge of useable land to represent the 13 non-tidal boundary (watercourse). On the commencement of this 14 division, the non-tidal boundary (watercourse) changes to the current 15 location of the line of the edge of useable land until the first new plan of 16 survey is registered. 17 `(4) Subsection (3) has effect even if, immediately before the 18 commencement of this division, the non-tidal boundary 19 (watercourse) was at law located in a different place. 20 `104 Current adopted natural feature rule (non-tidal) 21 exception provision 22 `(1) This section provides for the location at law of the non-tidal 23 boundary (watercourse) if the current adopted natural feature 24 rule (non-tidal) provision does not apply or can not 25 practicably be applied to establish the location. 26 `(2) The non-tidal boundary (watercourse) is, at law-- 27 (a) the natural feature that to the greatest practicable extent 28 complies with the requirements of the non-tidal 29 boundary (watercourse) location criteria; or 30 (b) if it is not practicable to identify a natural feature under 31 paragraph (a)--located where it could most reasonably 32 be expected to be located, under subdivision 3, if the 33 first new plan of survey were to be registered for the 34 land. 35 Page 235

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] `(3) To decide where the non-tidal boundary (watercourse) is 1 located at any time, there must be taken into account the 2 application of the ambulatory boundary principles to any 3 natural feature that locates the non-tidal boundary 4 (watercourse) under subsection (2). 5 `(4) Without limiting subsection (1), the current adopted natural 6 feature rule (non-tidal) provision can not practicably be 7 applied if all of the following apply-- 8 (a) there is an old plan of survey that is the most recently 9 registered or that is otherwise currently authoritative in 10 relation to the land; 11 (b) the plan, together with any associated material for the 12 plan, adopted a natural feature (other than the notional 13 middle line separating the lands of owners on opposite 14 sides of the watercourse) for representing the non-tidal 15 boundary (watercourse); 16 (c) either-- 17 (i) it is not possible to make a meaningful 18 correspondence between the evidence on the plan 19 of the adopted natural feature and evidence on the 20 ground of any natural feature; or 21 (ii) the adopted natural feature is currently located in a 22 substantially different location than it would have 23 been if it had been the subject of only gradual 24 change since it was adopted in the old plan of 25 survey. 26 `(5) Without limiting subsection (2)(b), it is not practicable to 27 identify a natural feature under subsection (2)(a) if, for 28 example, the watercourse has been significantly modified over 29 time because of the installation of walls, jetties, ramps, 30 revetments or other structures. 31 `105 No shift of boundary towards watercourse 32 `(1) This section applies if the application of the current adopted 33 natural feature rule (non-tidal) provision or the current 34 Page 236

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] adopted natural feature rule (non-tidal) exception provision 1 would result in the non-tidal boundary (watercourse) being 2 located at law generally closer to the opposite side of the 3 watercourse than it was located at law immediately before the 4 commencement of this division. 5 `(2) Despite the provisions mentioned in subsection (1), on the 6 commencement of this division, the non-tidal boundary 7 (watercourse) stays located at law in the same place it was 8 located at law immediately before the commencement. 9 `(3) Subsection (2) does not prevent subsequent movement of the 10 non-tidal boundary (watercourse) through the application of 11 the ambulatory boundary principles. 12 `Subdivision 3 Locating non-tidal boundaries 13 (watercourse) at law from 14 registration of first new plan of 15 survey 16 `106 Application of sdiv 3 17 `This subdivision provides for the location at law of a 18 non-tidal boundary (watercourse) of land on and from the 19 registration of the first new plan of survey for the land. 20 Note-- 21 The operation of this subdivision could be displaced by a multiple lot 22 declaration (non-tidal) under division 5. 23 `107 Special requirement to support the operation of 24 sdiv 3 25 `(1) The representation of the non-tidal boundary (watercourse) on 26 the first new plan of survey for the land together with 27 associated material, including a plan of survey lodged but not 28 registered before the commencement of this division, must, to 29 the greatest practicable extent, be consistent with the location 30 at law of the boundary as provided for in this subdivision. 31 Page 237

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] `(2) Subject to subsection (3), the first new plan of survey must not 1 be a compiled plan of survey in relation to any length of the 2 non-tidal boundary (watercourse). 3 `(3) The first new plan of survey may be a compiled plan of survey 4 in relation to any length (the relevant length) of the non-tidal 5 boundary (watercourse) if-- 6 (a) any subdivision of land provided for in the plan of 7 survey does not include the creation of any new right 8 line boundary of land that intersects with the relevant 9 length-- 10 (i) in its location as depicted on the plan of survey on 11 which the non-tidal boundary (watercourse) was 12 represented immediately before registration of the 13 new plan of survey; or 14 (ii) in its location at law on the commencement of this 15 division; or 16 (iii) in its location at law, as provided for in this 17 subdivision, on the registration of the new plan of 18 survey; and 19 (b) the size and nature of the land and the relevant length 20 make it impracticable to resurvey the boundary. 21 Note for subsection (3)-- 22 Subsection (3) will allow for some or all of the non-tidal boundary 23 (watercourse) to be represented on the first new plan of survey without a 24 resurvey, but will not affect the actual location at law of the non-tidal 25 boundary (watercourse) under this subdivision. 26 `108 Boundary location criteria rule (non-tidal) provision 27 `(1) The non-tidal boundary (watercourse) is, at law, the natural 28 feature that to the greatest practicable extent complies with 29 the requirements of the non-tidal boundary (watercourse) 30 location criteria. 31 `(2) To decide where the non-tidal boundary (watercourse) is 32 located at any time after the registration of the first new plan 33 of survey, there must be taken into account the application of 34 Page 238

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] the ambulatory boundary principles to the natural feature 1 mentioned in subsection (1). 2 `(3) Subsections (1) and (2) have effect even if, immediately 3 before the registration of the first new plan of survey, the 4 non-tidal boundary (watercourse) was, at law, having regard 5 to the provisions of subdivision 2, located in a different place. 6 Example-- 7 Immediately before the registration of the first new plan of survey, the 8 non-tidal boundary (watercourse) may have been located at law, having 9 regard to subdivision 2, at the current line of the edge of useable land. 10 On the registration of the first new plan of survey, the location at law of 11 the non-tidal boundary (watercourse) changes to the current location of 12 a depositional feature identified under the non-tidal boundary 13 (watercourse) location criteria. 14 `(4) Subsection (5) applies if subsection (1) would result in the 15 non-tidal boundary (watercourse) being located at law 16 generally closer to the opposite side of the watercourse than it 17 was immediately before the registration of the first new plan 18 of survey. 19 `(5) Despite subsection (1), on the registration of the first new plan 20 of survey, the non-tidal boundary (watercourse) stays located 21 at law in the same place it was located immediately before the 22 registration of the first new plan of survey. 23 `(6) Subsection (5) does not prevent subsequent movement of the 24 non-tidal boundary (watercourse) through the application of 25 the ambulatory boundary principles. 26 `109 First exception for the boundary location criteria rule 27 (non-tidal) provision (chief executive single lot 28 declaration (non-tidal) exception) 29 `(1) This section provides for the location at law of the non-tidal 30 boundary (watercourse) if the chief executive has by gazette 31 notice under this section made a declaration (a single lot 32 declaration (non-tidal)) about the location of the non-tidal 33 boundary (watercourse). 34 `(2) The non-tidal boundary (watercourse) is, at law, a natural 35 feature or anything else declared by the chief executive to be 36 Page 239

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] the non-tidal boundary (watercourse) for the land under the 1 single lot declaration (non-tidal). 2 `(3) To decide where the non-tidal boundary (watercourse) is 3 located at any time after the registration of the first new plan 4 of survey, there must be taken into account the application of 5 the ambulatory boundary principles to any natural feature 6 declared by the chief executive to be the non-tidal boundary 7 (watercourse). 8 `(4) The chief executive may make a single lot declaration 9 (non-tidal) only if-- 10 (a) a plan of survey intended to be the first new plan of 11 survey for the land has been lodged, or has been 12 deposited with a view to subsequent lodgement; and 13 (b) it is not practicable to identify a natural feature for the 14 purpose of applying the boundary location criteria rule 15 (non-tidal) provision. 16 `(5) To remove any doubt, it is declared that the single lot 17 declaration (non-tidal) may incorporate by reference a map or 18 plan held by the chief executive for identifying the location of 19 the non-tidal boundary (watercourse). 20 `(6) In making a single lot declaration (non-tidal), the chief 21 executive must ensure the location of the non-tidal boundary 22 (watercourse) to the greatest practicable extent complies with 23 the requirements of the non-tidal boundary (watercourse) 24 location criteria. 25 `(7) However, in making the single lot declaration (non-tidal), the 26 chief executive must ensure, to the greatest practicable extent, 27 having regard to all evidence about the history of the location 28 of the non-tidal boundary (watercourse) that is reasonably 29 available to the chief executive, that the location of the 30 non-tidal boundary (watercourse) as provided for in the single 31 lot declaration (non-tidal) is not generally closer to the 32 opposite side of the watercourse than the last known location 33 of the non-tidal boundary (watercourse). 34 `(8) The chief executive or registrar of titles may defer dealing 35 with a first new plan of survey that has been lodged, or has 36 Page 240

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] been deposited with a view to subsequent lodgement, to allow 1 the chief executive a reasonable time to investigate the making 2 of, and to make, a single lot declaration (non-tidal). 3 `(9) The following requirements apply for the making of a single 4 lot declaration (non-tidal)-- 5 (a) the chief executive must take reasonable steps to obtain 6 the views of any registered owner or lessee of the land 7 about the proposed declaration; 8 (b) the chief executive must make a decision that the chief 9 executive intends to make the proposed declaration, and 10 what the terms of the proposed declaration are to be; 11 (c) the chief executive must give the registered owner or 12 lessee of the land written notice of-- 13 (i) the decision and reasons for the decision; and 14 (ii) the owner's or lessee's right to appeal against the 15 decision and how the appeal is started; 16 (d) after any review of, and any appeal against, the decision 17 have been completed, the chief executive may, unless, 18 following review or appeal no declaration is to be made, 19 make the single lot declaration (non-tidal)-- 20 (i) in accordance with the decision; or 21 (ii) if the decision is amended or substituted as a result 22 of review or appeal--in accordance with the 23 decision as amended or substituted. 24 `110 Second exception for the boundary location criteria 25 rule (non-tidal) provision (previous sudden change) 26 `(1) This section provides for the location at law of the non-tidal 27 boundary (watercourse) if the natural feature applying as the 28 boundary under the current adopted natural feature rule 29 (non-tidal) provision was the subject of sudden change at any 30 time before the registration of the first new plan of survey, 31 whether before or after the commencement of this division. 32 Page 241

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] (2) The location of the non-tidal boundary (watercourse) is in 1 accordance with its location on an application of the 2 ambulatory boundary principles to the natural feature. 3 `Subdivision 4 Locating non-tidal boundaries 4 (watercourse) at law from 5 registration of subsequent new plan 6 of survey 7 `111 Application of sdiv 4 8 `This subdivision provides for the location at law of a 9 non-tidal boundary (watercourse) of land on and from the 10 registration of a subsequent new plan of survey for the land. 11 Note-- 12 The operation of this subdivision could be displaced by a multiple lot 13 declaration (non--tidal) under division 5. 14 `112 Special requirement to support the operation of 15 sdiv 4 16 `(1) The representation of the non-tidal boundary (watercourse) on 17 the subsequent new plan of survey for the land together with 18 associated material must, to the greatest practicable extent, be 19 consistent with the location at law of the boundary as 20 provided for in this subdivision. 21 `(2) Subject to subsections (3) and (4), the subsequent new plan of 22 survey must not be a compiled plan of survey in relation to 23 any length of the non-tidal boundary (watercourse). 24 `(3) The subsequent new plan of survey may be a compiled plan of 25 survey in relation to any length (the relevant length) of the 26 non-tidal boundary (watercourse) if-- 27 (a) the first new plan of survey was not a compiled plan of 28 survey in relation to the relevant length; and 29 (b) the searchable registered, or otherwise authoritative, 30 information held by the chief executive (land) or the 31 Page 242

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] registrar of titles obtained for the purposes of the 1 subsequent new plan of survey in relation to the relevant 2 length is information included in the first new plan of 3 survey and associated material for the first new plan of 4 survey. 5 `(4) Further, the subsequent new plan of survey may be a compiled 6 plan of survey in relation to any length (also the relevant 7 length) of the non-tidal boundary (watercourse) if-- 8 (a) the first new plan of survey was a compiled plan in 9 relation to the relevant length; and 10 (b) the searchable registered, or otherwise authoritative, 11 information held by the chief executive (land) or the 12 registrar of titles obtained for the purposes of the 13 subsequent new plan of survey in relation to the relevant 14 length is the same information obtained for the purposes 15 of the first new plan of survey; and 16 (c) any subdivision of land provided for in the subsequent 17 plan of survey does not include the creation of any new 18 right line boundary of land that intersects with the 19 relevant length-- 20 (i) in its location as depicted on the plan of survey on 21 which the non-tidal boundary (watercourse) was 22 represented immediately before registration of the 23 first new plan of survey; or 24 (ii) in its location at law on the commencement of this 25 division; or 26 (iii) in its location at law, as provided for in this 27 subdivision, on the registration of the subsequent 28 new plan of survey. 29 Note for subsections (3) and (4)-- 30 Subsections (3) and (4) will allow for some or all of the non-tidal 31 boundary (watercourse) to be represented on the subsequent new plan of 32 survey without a resurvey, but will not affect the actual location at law 33 of the non-tidal boundary (watercourse) under this subdivision. 34 Page 243

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] `113 First new plan of survey adopted feature rule 1 (non-tidal) 2 `The non-tidal boundary (watercourse) is, at law, the natural 3 feature or other thing that constituted the non-tidal boundary 4 (watercourse) immediately before the registration of the 5 subsequent new plan of survey, taking into account, if a 6 natural feature constituted the boundary, the application of the 7 ambulatory boundary principles to the natural feature, both 8 before and after the registration of the subsequent new plan of 9 survey. 10 `Subdivision 5 Locating non-tidal boundaries 11 (watercourse) at law on coming into 12 force of new source material 13 `114 Application of sdiv 5 14 `This subdivision provides for the location at law of a 15 non-tidal boundary (watercourse) of land on and from the 16 coming into force of new source material for the land. 17 `115 Special requirement to support the operation of 18 sdiv 5 19 `The representation of the non-tidal boundary (watercourse) 20 on any plan of survey for the land together with associated 21 material must, to the greatest practicable extent, be consistent 22 with the location at law of the boundary as provided for in this 23 subdivision. 24 `116 New source material adopted feature rule 25 (non-tidal) 26 `(1) Subdivisions 2 to 4 do not apply to the land. 27 `(2) The non-tidal boundary (watercourse) is, at law, the natural 28 feature or other thing identified as the non-tidal boundary 29 (watercourse) in the new source material, taking into account, 30 Page 244

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] if a natural feature is identified as the boundary, the 1 application of the ambulatory boundary principles to the 2 natural feature, after the coming into force of the source 3 material. 4 `Subdivision 6 Locating non-tidal boundaries (lake) 5 `117 Application of sdiv 6 6 `(1) This subdivision provides for the location at law of a non-tidal 7 boundary (lake) of land at any time. 8 `(2) This subdivision is not intended to provide for the location at 9 law of a non-tidal boundary (lake) of land immediately after 10 the commencement of this division to be different from its 11 location at law immediately before the commencement. 12 `118 Special requirement to support the operation of 13 sdiv 6 14 `The representation of the non-tidal boundary (lake) on any 15 plan of survey for the land together with associated material 16 must, to the greatest practicable extent, be consistent with the 17 location at law of the boundary as provided for in this 18 subdivision. 19 `119 Lake boundary rule 20 `(1) The non-tidal boundary (lake) is, at law, the line of the 21 outermost extent of the bed and banks of the lake. 22 `(2) To decide where the non-tidal boundary (lake) is located at 23 any time, there must be taken into account the application of 24 the ambulatory boundary principles to the bed and banks, both 25 before and after the commencement of this division. 26 Page 245

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] `Division 5 Miscellaneous issues in the 1 non-tidal environment 2 `120 Multiple lot declaration (non-tidal) provision 3 `(1) The chief executive may by gazette notice make a declaration 4 (a multiple lot declaration (non-tidal)) under this section 5 providing for the location of the non-tidal boundary 6 (watercourse) of each of 2 or more lots (each a relevant lot). 7 `(2) The chief executive may make a multiple lot declaration 8 (non-tidal) even if, for any relevant lot-- 9 (a) a new plan of survey has been lodged, or has been 10 deposited with a view to subsequent lodgement; or 11 (b) there has already been 1 or more new plans of survey 12 registered. 13 `(3) However, the chief executive may make a multiple lot 14 declaration (non-tidal) only if-- 15 (a) at any time before the commencement of this section-- 16 (i) all the land (the original land) constituting the 17 relevant lots was the subject of one old plan of 18 survey (the original old plan of survey), whether 19 or not any other land was also the subject of the 20 original old plan of survey; and 21 (ii) the non-tidal boundary (watercourse) of the 22 original land was represented on the original old 23 plan of survey by an adopted natural feature (the 24 original adopted natural feature); and 25 Example for paragraph (a)-- 26 The original land was represented on the original old plan of 27 survey as being bounded by a bank, and if the original land was 28 made up of 2 or more lots, each lot was represented on the 29 original plan of survey as being bounded by a separate length of 30 that bank. 31 (b) on a consideration of all the relevant lots taken as a 32 whole, any suitable natural feature that could be adopted 33 as the non-tidal boundary (watercourse) for the relevant 34 Page 246

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] lots under the non-tidal boundary (watercourse) location 1 criteria has effectively been obliterated. 2 `(4) On and from the registration of the next new plan of survey 3 for a relevant lot-- 4 (a) the non-tidal boundary (watercourse) of the relevant lot 5 is, at law, the line that would describe on the ground the 6 line declared by the chief executive to be the non-tidal 7 boundary (watercourse) for the lot under the multiple lot 8 declaration (non-tidal); and 9 (b) the non-tidal boundary (watercourse) is taken to be fixed 10 as if it were a right line boundary. 11 `(5) To remove any doubt, it is declared that the gazette notice may 12 incorporate by reference a map or plan held by the chief 13 executive for identifying the location of the non-tidal 14 boundary (watercourse) of the relevant lots. 15 `(6) In making a multiple lot declaration (non-tidal), the chief 16 executive must ensure, to the greatest practicable extent, 17 having regard to relevant evidence, that the location of the 18 non-tidal boundary (watercourse) as provided for in the 19 multiple lot declaration (non-tidal) is not generally closer to 20 the opposite side of the watercourse than the last known 21 location of the original adopted natural feature. 22 `(7) On and from the registration of the next new plan of survey 23 for a relevant lot, the lot is taken still to be land having a 24 non-tidal boundary (watercourse), even though the location of 25 the boundary becomes fixed as provided for under subsection 26 (4)(b). 27 `(8) The chief executive or registrar of titles may defer dealing 28 with a new plan of survey that has been lodged, or has been 29 deposited with a view to subsequent lodgement, to allow the 30 chief executive a reasonable time to investigate the making of, 31 and if considered appropriate, to make, a multiple lot 32 declaration (non-tidal). 33 `(9) The following requirements apply for the making of a 34 multiple lot declaration (non-tidal)-- 35 Page 247

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] (a) the chief executive must take reasonable steps to obtain 1 the views of any registered owner or lessee of each 2 relevant lot about the proposed declaration; 3 (b) the chief executive must make a decision that the chief 4 executive intends to make the proposed declaration, and 5 what the terms of the proposed declaration are to be; 6 (c) the chief executive must give the registered owner or 7 lessee of each relevant lot written notice of-- 8 (i) the decision and reasons for the decision; and 9 (ii) the owner's or lessee's right to appeal against the 10 decision and how the appeal is started; 11 (d) after any review of, and any appeal against, the decision 12 have been completed, the chief executive may, unless, 13 following review or appeal no declaration is to be made, 14 make the multiple lot declaration (non-tidal)-- 15 (i) in accordance with the decision; or 16 (ii) if the decision is amended or substituted as a result 17 of review or appeal--in accordance with the 18 decision as amended or substituted. 19 `(10) Division 4, subdivisions 3 and 4 do not provide for the 20 location at law of a non-tidal boundary (watercourse) of land 21 to the extent their operation would be inconsistent with the 22 operation of this section. 23 `(11) In this section-- 24 relevant evidence means-- 25 (a) all evidence about the history of the location of the 26 original adopted natural feature that is reasonably 27 available to the chief executive; and 28 (b) if soil samples are taken generally in the last known 29 location of the original adopted natural feature--the 30 results of analysis of the samples. 31 Page 248

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] `121 No compensation for operation of div 4 or this 1 division 2 `A person is not entitled to compensation from the State or 3 anyone else, under this Act, the Land Title Act compensation 4 provisions, the Property Law Act relief provisions or 5 otherwise, for deprivation of an interest of any type in land, or 6 for loss or damage of any kind, arising out of the operation of 7 division 4 or this division, including in particular-- 8 (a) the relocation, at law, of a non-tidal boundary 9 (watercourse) because of the operation of-- 10 (i) the current adopted natural feature rule (non-tidal) 11 provision, or any exception to it, under division 4, 12 subdivision 2; or 13 (ii) the boundary location criteria rule (non-tidal) 14 provision, or any exception to it, under division 4, 15 subdivision 3; or 16 (iii) the multiple lot declaration (non-tidal) provision; 17 or 18 (b) the chief executive (land) or the registrar of titles 19 keeping, or not keeping, a record about the likely 20 location of a non-tidal boundary (watercourse) arising 21 out of the operation of division 4, subdivision 3 or out of 22 a multiple lot declaration (non-tidal). 23 `Division 6 Review of declaration decisions and 24 appeals 25 `Subdivision 1 Right of appeal 26 `122 Right of appeal 27 `A registered owner or lessee who is given notice of a 28 declaration decision has a right to appeal against the decision. 29 Page 249

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] `Subdivision 2 Internal review of decisions 1 `123 Appeal process starts with internal review 2 `(1) Every appeal against a declaration decision must be, in the 3 first instance, by way of an application for an internal review. 4 `(2) A person who has a right to appeal against a declaration 5 decision may apply to the Minister for a review of the 6 decision. 7 `124 Applying for review 8 `(1) An application by a person for review of a declaration 9 decision must be made within 42 days after notice of the 10 decision was given to the person. 11 `(2) The Minister may extend the period for making an application 12 for review. 13 `(3) An application for review must be written and state in detail 14 the grounds on which the applicant seeks review of the 15 decision. 16 `125 Decision on reconsideration 17 `(1) After reviewing the declaration decision, the Minister must 18 make a further decision (the review decision) to confirm the 19 declaration decision, amend the declaration decision or 20 substitute a new declaration decision. 21 `(2) The chief executive must immediately give the applicant 22 written notice of the review decision. 23 `(3) The notice must state-- 24 (a) the day the notice is given to the applicant (the review 25 notice day); and 26 (b) if the review decision is not the decision sought by the 27 applicant-- 28 (i) the reasons for the decision; and 29 Page 250

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] (ii) that the applicant may appeal against the decision 1 to the court within 42 days after the review notice 2 day. 3 `Subdivision 3 Appeals 4 `126 Who may appeal 5 `A person who has applied for review of a declaration decision 6 under subdivision 2 and is dissatisfied with the review 7 decision may appeal to the court against the decision. 8 `127 Procedure for an appeal to the court 9 `(1) An appeal to the court is started by filing written notice of 10 appeal with the registrar of the court. 11 `(2) A copy of the notice must be served on the chief executive. 12 `(3) The notice of appeal must be filed within 42 days after the 13 review notice day. 14 `(4) However, a regulation may provide a different period for 15 particular declaration decisions. 16 `(5) The court may, whether before or after the time for filing the 17 notice of appeal ends, extend the period for filing the notice of 18 appeal. 19 `(6) The notice of appeal must state fully the grounds of the 20 appeal. 21 `128 Powers of court on appeal 22 `(1) In deciding an appeal, the court has the same powers as the 23 chief executive. 24 `(2) An appeal is by way of rehearing. 25 `(3) The court may-- 26 (a) confirm the review decision; or 27 Page 251

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 215] (b) set aside the review decision and substitute another; or 1 (c) set aside the review decision and return the issue to the 2 chief executive with directions the court considers 3 appropriate. 4 `129 Effect of decision of court on appeal 5 `(1) If the court acts to set aside the review decision and return the 6 issue to the chief executive with directions the court considers 7 appropriate, and the chief executive makes a new declaration 8 decision, the new decision is not subject to review or appeal 9 under this division. 10 `(2) If the court substitutes another decision, the substituted 11 decision is taken to be the declaration decision of the chief 12 executive, and the chief executive may give effect to the 13 decision as if the decision was the original declaration 14 decision of the chief executive and no application for review 15 or appeal had been made. 16 `130 Evidentiary provisions for appeal 17 `(1) Subsections (2) to (4) apply for a proceeding under this 18 subdivision. 19 `(2) The appointment or power of the chief executive or a surveyor 20 must be presumed unless a party, by reasonable notice, 21 requires proof of-- 22 (a) the appointment; or 23 (b) the power to do anything under this Act. 24 `(3) A signature purporting to be the signature of the Minister, the 25 chief executive or a surveyor is evidence of the signature it 26 purports to be. 27 `(4) A certificate purporting to be signed by the chief executive 28 stating any of the following matters is evidence of the 29 matter-- 30 (a) that the source material for any land is the material 31 stated in the certificate; 32 Page 252

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 216] (b) that the records of the department in which the Land Act 1 1994 is administered in relation to any land are the 2 records identified in the certificate.'. 3 Clause 216 Insertion of new s 134 4 Part 8, as renumbered under this Act-- 5 insert-- 6 `134 Delegations 7 `(1) The chief executive may delegate his or her functions under 8 this Act to an appropriately qualified officer or employee of 9 the department. 10 `(2) In this section-- 11 appropriately qualified includes having the qualifications, 12 experience or standing appropriate for the functions. 13 Example of standing for an employee of the department-- 14 the employee's classification level in the department 15 functions includes powers.'. 16 Clause 217 Amendment of schedule (Dictionary) 17 (1) Schedule-- 18 insert-- 19 `ambulatory boundary principles, for part 7, see section 62. 20 associated material, for part 7, see section 62. 21 bar, for part 7, see section 62. 22 bed and banks, for part 7, see section 62. 23 bench, for part 7, see section 62. 24 boundary location criteria rule (non-tidal) provision, for part 25 7, see section 62. 26 chief executive (land) means the chief executive under the 27 Land Act 1994. 28 Page 253

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 217] compiled plan of survey see section 62. 1 court, for part 7, see section 62. 2 current adopted natural feature rule (non-tidal) exception 3 provision, for part 7, see section 62. 4 current adopted natural feature rule (non-tidal) provision, 5 for part 7, see section 62. 6 current adopted natural feature rule (tidal) provision, for 7 part 7, see section 62. 8 declaration decision, for part 7, see section 62. 9 deposit, for part 7, see section 62. 10 depositional feature, for part 7, see section 62. 11 drainage feature, for part 7, see section 62. 12 floodplain, for part 7, see section 62. 13 floodwater, for part 7, see section 62. 14 gradual change, for part 7, see section 62. 15 indigenous land, for part 7, see section 62. 16 in-stream island, for part 7, see section 62. 17 intermittent, for part 7, see section 62. 18 lake, for part 7, see section 62. 19 Land Title Act compensation provisions, for part 7, see 20 section 62. 21 lessee, for part 7, see section 62. 22 lodge, for part 7, see section 62. 23 lot means a lot under a registration Act. 24 multiple lot declaration (non-tidal) see section 120(1). 25 multiple lot declaration (non-tidal) provision means section 26 120. 27 multiple lot declaration (tidal) see section 93(1). 28 multiple lot declaration (tidal) provision means section 93. 29 Page 254

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 16 Amendment of Survey and Mapping Infrastructure Act 2003 [s 217] new plan of survey, for part 7, see section 62. 1 new source material, for part 7, see section 62. 2 non-tidal boundary see section 62. 3 non-tidal boundary (lake), for part 7, see section 62. 4 non-tidal boundary (watercourse) see section 62. 5 non-tidal boundary (watercourse) location criteria, for part 6 7, see section 62. 7 old plan of survey, for part 7, see section 62. 8 original adopted natural feature rule (tidal) provision, for 9 part 7, see section 62. 10 outer bank, for part 7, see section 62. 11 overland flow water, for part 7, see section 62. 12 plan of survey, for part 7, see section 62. 13 Property Law Act relief provisions, for part 7, see section 62. 14 public interest, for part 7, see section 62. 15 register, for part 7, see section 62. 16 registered owner, for part 7, see section 62. 17 registration Act, for part 7, see section 62. 18 review decision, for part 7, see section 62. 19 review notice day, for part 7, see section 62. 20 right line boundary, for part 7, see section 62. 21 scour mark, for part 7, see section 62. 22 second exception for the original adopted natural feature 23 rule (tidal) provision (applied criteria exception), for part 7, 24 see section 62. 25 single lot declaration (non-tidal), for part 7, see section 62. 26 single lot declaration (tidal), for part 7, see section 62. 27 source material, for part 7, see section 62. 28 specified tidal boundary, for part 7, see section 71. 29 Page 255

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 17 Amendment of Surveyors Act 2003 [s 218] subsequent new plan of survey, for part 7, see section 62. 1 sudden change, for part 7, see section 62. 2 tidal boundary see section 70. 3 tidal boundary location criteria, for part 7, see section 62. 4 watercourse, for part 7, see section 63.'. 5 (2) Schedule, definition approved form, `section 65'-- 6 omit, insert-- 7 `section 135'. 8 Part 17 Amendment of Surveyors Act 9 2003 10 Clause 218 Act amended 11 This part amends the Surveyors Act 2003. 12 Clause 219 Amendment of s 14 (Chairperson of board) 13 Section 14-- 14 insert-- 15 `(7) If a vacancy occurs in the office of chairperson (the vacating 16 chairperson) during the currency of the chairperson's term of 17 appointment, another member of the board who is a cadastral 18 surveyor may be appointed by the Minister to fill the vacancy. 19 `(8) A person's appointment under subsection (7) continues until 20 the earlier of the following-- 21 (a) the day the remainder of the vacating chairperson's term 22 of appointment ends; 23 (b) the day the Governor in Council appoints a new 24 chairperson under this section.'. 25 Page 256

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 17 Amendment of Surveyors Act 2003 [s 220] Clause 220 Replacement of s 15 (Term of appointment) 1 Section 15-- 2 omit, insert-- 3 `15 Term of appointment 4 `(1) Each member of the board is appointed for a term of not more 5 than 3 years, stated in the member's instrument of 6 appointment. 7 `(2) Despite subsection (1), a member continues holding office 8 after the member's term of office ends until the member's 9 successor is appointed.'. 10 Clause 221 Amendment of s 19 (Vacation of office) 11 (1) Section 19(1)(f)-- 12 renumber as section 19(1)(g). 13 (2) Section 19(1)-- 14 insert-- 15 `(f) was appointed because the member was a cadastral 16 surveyor employed in the department and the member 17 stops being a cadastral surveyor or the member's 18 employment in the department ends; or'. 19 Clause 222 Amendment of s 36 (Eligibility for registration or 20 registration endorsement--individuals) 21 (1) Section 36(2)(c)(i), `or the repealed Act'-- 22 omit. 23 (2) Section 36(2)(c)(ii) and (iii)-- 24 omit, insert-- 25 `(ii) either-- 26 (A) takes out and maintains the insurance cover 27 prescribed under a regulation; or 28 Page 257

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 17 Amendment of Surveyors Act 2003 [s 223] (B) is covered for the period of registration by 1 insurance cover taken out and maintained by 2 a corporation that is a consulting surveyor.'. 3 Clause 223 Amendment of s 38 (Eligibility for registration and 4 registration endorsement--corporations) 5 (1) Section 38(2)(b), `or the repealed Act'-- 6 omit. 7 (2) Section 38(2)(c)-- 8 omit. 9 (3) Section 38(2)(d) and (e)-- 10 renumber as section 38(2)(c) and (d). 11 (4) Section 38(3)-- 12 omit, insert-- 13 `(3) The corporation must employ or have as one of its executive 14 officers-- 15 (a) a surveyor who holds a registration endorsement as a 16 consulting surveyor; and 17 (b) if the corporation requires an endorsement other than as 18 a consulting surveyor--a surveyor who holds the 19 registration endorsement required.'. 20 Clause 224 Amendment of s 45 (Procedural requirements for 21 application) 22 Section 45(3)-- 23 omit, insert-- 24 `(3) In addition, an application by an individual for a registration 25 endorsement as a consulting surveyor must be accompanied 26 by satisfactory evidence that the applicant-- 27 (a) has taken out and maintains the insurance cover 28 prescribed under a regulation; or 29 Page 258

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 17 Amendment of Surveyors Act 2003 [s 225] (b) will be covered for the period of registration by 1 insurance cover taken out and maintained by a 2 corporation that is a consulting surveyor.'. 3 Clause 225 Amendment of s 46 (Additional requirements for 4 application by corporation) 5 (1) Section 46(1)(b) and (c)-- 6 omit. 7 (2) Section 46(1)(d)-- 8 renumber as section 46(1)(b). 9 (3) Section 46(2)-- 10 omit, insert-- 11 `(2) An application for a registration endorsement for a 12 corporation must also be accompanied by satisfactory 13 evidence that-- 14 (a) a surveyor employed by or an executive officer of the 15 corporation holds a registration endorsement as a 16 consulting surveyor; and 17 (b) if the application is for a registration endorsement other 18 than an endorsement as a consulting surveyor--a 19 surveyor employed by or an executive officer of the 20 corporation holds the registration endorsement.'. 21 Clause 226 Replacement of pt 12, hdg (Transitional provisions) 22 Part 12, heading-- 23 omit, insert-- 24 `Part 12 Transitional and repeal 25 provisions for Act No. 70 of 26 2003'. 27 Page 259

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 17 Amendment of Surveyors Act 2003 [s 227] Clause 227 Replacement of pt 13, hdg (Repeal) 1 Part 13, heading-- 2 omit, insert-- 3 `Division 3 Repeal'. 4 Clause 228 Insertion of new pt 13 5 After section 205-- 6 insert-- 7 `Part 13 Transitional provisions for 8 Natural Resources and Other 9 Legislation Amendment Act 10 2010 11 `206 Definitions for pt 13 12 `In this part-- 13 commencement means the day this part commences. 14 `207 Existing application for registration or renewal by 15 corporation 16 `(1) This section applies-- 17 (a) to an application made by a corporation for registration 18 as a surveyor with a registration endorsement as a 19 consulting surveyor; and 20 (b) if the application was made but not decided before the 21 commencement. 22 `(2) For deciding the application, sections 38 and 46 as in force 23 immediately before the commencement continue to apply as if 24 the amendments of those sections under the Natural 25 Resources and Other Legislation Amendment Act 2010, part 26 17 had not commenced. 27 Page 260

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 17 Amendment of Surveyors Act 2003 [s 229] `208 Continuation of board members 1 `(1) Subsection (2) applies to an existing member of the board, if 2 the member was appointed after 1 March 2010 but before the 3 commencement. 4 `(2) On the commencement, the member is taken to be appointed 5 as a member for a term ending on 1 March 2013. 6 `(3) Subsection (4) applies to an existing member of the board if, 7 other than for the subsection, the member's appointment 8 would end on 29 October 2010. 9 `(4) On the commencement, the member is taken to be appointed 10 as a member for a term ending on 1 September 2011. 11 `(5) This section applies to an existing member despite section 15 12 as in force before or after the commencement. 13 `(6) In this section-- 14 existing member means a member of the board holding office 15 immediately before the commencement.'. 16 Clause 229 Amendment of sch 3 (Dictionary) 17 Schedule 3, definition professional misconduct, paragraph (b), 18 after `another Act for a survey'-- 19 insert-- 20 `, including, for example, a cadastral survey carried out under 21 the supervision of the registrant or former registrant'. 22 Page 261

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 18 Amendment of Torres Strait Islander Cultural Heritage Act 2003 [s 230] Part 18 Amendment of Torres Strait 1 Islander Cultural Heritage Act 2 2003 3 Clause 230 Act amended 4 This part amends the Torres Strait Islander Cultural Heritage 5 Act 2003. 6 Clause 231 Amendment of s 34 (Native title party for an area) 7 Section 34(1)(b)(i)-- 8 omit, insert-- 9 `(i) the person's claim has failed and-- 10 (A) the person's claim was the last claim 11 registered under the Register of Native Title 12 Claims for the area; and 13 (B) there is no other registered native title 14 claimant for the area; and 15 (C) there is not, and never has been, a native title 16 holder for the area; or'. 17 Part 19 Amendment of Torres Strait 18 Islander Land Act 1991 19 Clause 232 Act amended 20 This part amends the Torres Strait Islander Land Act 1991. 21 Page 262

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 20 Amendment of Vegetation Management Act 1999 [s 233] Clause 233 Amendment of s 3 (Definitions) 1 Section 3, definition bed and banks-- 2 omit. 3 Clause 234 Amendment of s 17 (Beds and banks of watercourses 4 and lakes) 5 (1) Section 17, heading, `Beds and banks of watercourses'-- 6 omit, insert-- 7 `Watercourses'. 8 (2) Section 17, `the bed and banks of a watercourse or lake only if 9 the bed and banks are'-- 10 omit, insert-- 11 `a watercourse or lake only to the extent the watercourse or 12 lake is'. 13 Part 20 Amendment of Vegetation 14 Management Act 1999 15 Clause 235 Act amended 16 This part amends the Vegetation Management Act 1999. 17 Clause 236 Amendment of s 7 (Application of Act) 18 Section 7(1)(b)-- 19 omit, insert-- 20 `(b) any of the following protected areas under the Nature 21 Conservation Act 1992-- 22 (i) a national park (scientific); 23 (ii) a national park; 24 Page 263

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 21 Amendment of Water Act 2000 [s 237] (iii) a national park (Aboriginal land); 1 (iv) a national park (Torres Strait Islander land); 2 (v) a national park (Cape York Peninsula Aboriginal 3 land); 4 (vi) a national park (recovery); 5 (vii) a conservation park; 6 (viii) a resources reserve; or'. 7 Part 21 Amendment of Water Act 2000 8 Clause 237 Act amended 9 This part amends the Water Act 2000. 10 Clause 238 Insertion of new ch 1, pt 1 hdg 11 Before section 1-- 12 insert-- 13 `Part 1 Introduction'. 14 Clause 239 Insertion of new ch 1, pt 2 15 After section 4-- 16 insert-- 17 `Part 2 Watercourses 18 `5 Meaning of watercourse 19 `(1) A watercourse is a river, creek or other stream, including a 20 stream in the form of an anabranch or a tributary, in which 21 Page 264

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 21 Amendment of Water Act 2000 [s 239] water flows permanently or intermittently, regardless of the 1 frequency of flow events-- 2 (a) in a natural channel, whether artificially modified or not; 3 or 4 (b) in an artificial channel that has changed the course of the 5 stream. 6 `(2) A watercourse includes any of the following located in it-- 7 (a) in-stream islands; 8 (b) benches; 9 (c) bars. 10 `(3) However, a watercourse does not include a drainage feature. 11 `(4) Further-- 12 (a) unless there is a contrary intention, a reference to a 13 watercourse in this Act, other than in this part or in the 14 definitions in schedule 4 to the extent they support the 15 operation of this part, is a reference to anywhere that 16 is-- 17 (i) upstream of the downstream limit of the 18 watercourse; and 19 (ii) if there is an upstream limit of the 20 watercourse--downstream of the upstream limit; 21 and 22 (iii) between the outer bank on one side of the 23 watercourse and the outer bank on the other side of 24 the watercourse; and 25 (b) a reference in this Act to, or to a circumstance that 26 involves, land adjoining a watercourse, is a reference to, 27 or to a circumstance that involves, land effectively 28 adjoining a watercourse. 29 Note for paragraph (b)-- 30 Generally, the non-tidal boundary (watercourse) of land bounded 31 by a watercourse, as provided for under the Survey and Mapping 32 Infrastructure Act 2003, would not correspond precisely with the 33 line of the outer bank of a watercourse under this Act. 34 Page 265

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 21 Amendment of Water Act 2000 [s 239] `(5) In subsection (4)(b)-- 1 adjoining includes being bounded by, being adjacent to, or 2 abutting. 3 `5A Meaning of outer bank 4 `(1) The outer bank, at any location on one side of a watercourse, 5 is-- 6 (a) if there is a floodplain on that side of the 7 watercourse--the edge of the floodplain that is on the 8 same side of the floodplain as the watercourse; or 9 (b) if there is not a floodplain on that side of the 10 watercourse--the place on the bank of the watercourse 11 marked by-- 12 (i) a scour mark; or 13 (ii) a depositional feature; or 14 (iii) if there are 2 or more scour marks, 2 or more 15 depositional features or 1 or more scour marks and 16 1 or more depositional features--whichever scour 17 mark or depositional feature is highest. 18 `(2) However, subsection (3) applies if, at a particular location in 19 the watercourse-- 20 (a) there is a floodplain on one side of the watercourse; and 21 (b) the other side of the watercourse is confined by a valley 22 margin. 23 Examples of valley margin-- 24 hill, cliff, terrace 25 `(3) Despite subsection (1)(b), the outer bank on the valley margin 26 side of the watercourse is the line on the valley margin that is 27 at the same level as the outer bank on the other side of the 28 watercourse. 29 `(4) Despite subsections (1) to (3), if under this part the chief 30 executive has declared an outer bank on a side of a 31 watercourse for any length of the watercourse, the outer bank 32 Page 266

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 21 Amendment of Water Act 2000 [s 239] on that side of the watercourse for that length is the outer bank 1 as declared by the chief executive. 2 `(5) To remove any doubt, it is declared that an outer bank of a 3 watercourse-- 4 (a) can not be, or be a part of, an in-stream island, bench or 5 bar located in the watercourse; and 6 (b) can not be generally closer to the middle of the 7 watercourse than any part of an in-stream island, bench 8 or bar located in the watercourse. 9 `5B Declaration of outer bank 10 `(1) The chief executive may by gazette notice declare an outer 11 bank of a watercourse for a length (the relevant length) of the 12 watercourse. 13 `(2) The chief executive may make a declaration under subsection 14 (1) only if-- 15 (a) it is not reasonably practicable to otherwise identify the 16 outer bank of the watercourse for the relevant length; or 17 (b) the chief executive is satisfied that the outer bank of the 18 watercourse for the relevant length does not 19 appropriately locate a watercourse for the purposes of 20 the exercise of jurisdiction over watercourses under this 21 Act. 22 `(3) If the chief executive acts under subsection (2)(a), the chief 23 executive must, in making a declaration under subsection (1), 24 take reasonable steps to declare the outer bank consistently 25 with what would have been the location of the outer bank if it 26 had not become impracticable to identify it. 27 `(4) However, a declaration can not have effect to locate an outer 28 bank for any period before the declaration is made.'. 29 Page 267

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 21 Amendment of Water Act 2000 [s 240] Clause 240 Omission of s 21 (Beds and banks forming boundaries of 1 land are State property) 2 Section 21-- 3 omit. 4 Clause 241 Amendment of s 279 (Ownership and management of 5 certain quarry material) 6 (1) Section 279(a), `, the beds and banks of which are'-- 7 omit, insert-- 8 `that is'. 9 (2) After section 279(a)-- 10 insert-- 11 `Note-- 12 See the Land Act 1994, chapter 1, part 4, division 3 in relation to 13 the ownership by the State of land adjoining a non-tidal 14 boundary (watercourse).'. 15 Clause 242 Amendment of s 967 (Approval for development under 16 Sustainable Planning Act 2009 is subject to approval 17 under this Act) 18 Section 967(5), (6) and (7), `the bed or bank of'-- 19 omit. 20 Clause 243 Insertion of new ch 8, pt 4B 21 Chapter 8-- 22 insert-- 23 Page 268

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 21 Amendment of Water Act 2000 [s 243] `Part 4B Special provision for 1 Condamine and Balonne 2 Resource Operations Plan 3 `1003B Condamine and Balonne Resource Operations 4 Plan amended 5 `(1) On the commencement of this section, the CB ROP is 6 amended by including the deferred aspect in the CB ROP. 7 `(2) Subsection (1) applies despite any other provision of this Act. 8 `(3) The CB ROP as amended under subsection (1) is the resource 9 operations plan for the Water Resource (Condamine and 10 Balonne) Plan 2004. 11 `(4) This section does not affect the power of-- 12 (a) the chief executive to further amend the CB ROP; or 13 (b) the Governor in Council to approve a further 14 amendment of the CB ROP; or 15 (c) the chief executive to prepare, or the Governor in 16 Council to approve, a resource operations plan to 17 replace the CB ROP as amended from time to time, 18 including under subsection (1); or 19 (d) the Governor in Council to repeal the CB ROP as 20 amended from time to time, including under subsection 21 (1). 22 `(5) In this section-- 23 CB ROP means the Condamine and Balonne Resource 24 Operations Plan approved by the Governor in Council on 11 25 December 2008. 26 deferred aspect means the provisions for the CB ROP 27 included in the document called `Condamine and Balonne 28 resource operations plan amendment incorporating the Lower 29 Balonne area' approved by the chief executive on 5 March 30 2010. 31 Page 269

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 21 Amendment of Water Act 2000 [s 244] Editor's note-- 1 On the commencement of this section, the document is available for 2 inspection at the department's office at 41 George Street, Brisbane and 3 on the department's website.' 4 Clause 244 Amendment of s 1006 (Declarations about watercourses) 5 Section 1006-- 6 insert-- 7 `(4) If a regulation under subsection (1) purports to declare a limit 8 of a feature that is not a watercourse, the regulation is 9 ineffective in relation to that feature, but is otherwise as 10 effective, as a regulation, as it would have been if reference to 11 the feature had not been included in the regulation. 12 Example for subsection (4)-- 13 A regulation under subsection (1) would be ineffective to the extent it 14 purports to declare a limit of a drainage feature.'. 15 Clause 245 Amendment of s 1014 (Regulation-making power) 16 Section 1014(2)(k), `the bed or banks of'-- 17 omit. 18 Clause 246 Insertion of new s 1014A 19 After section 1014-- 20 insert-- 21 `1014A Special regulation-making power to support outer 22 bank identification 23 `(1) Regulations made under this Act may include a regulation 24 supporting the identification of watercourses and the outer 25 banks of watercourses. 26 `(2) Without limiting subsection (1), a regulation may, by words 27 and diagrams-- 28 (a) indicate how chapter 1, part 2, including the definitions 29 in schedule 4 supporting chapter 1, part 2, must be 30 Page 270

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 21 Amendment of Water Act 2000 [s 247] applied in varying environments and in watercourses, or 1 sections of watercourses, of varying profiles; or 2 (b) give examples of the occurrence of depositional features 3 and scour marks and of how they may locate outer 4 banks; or 5 (c) give examples of the occurrence of floodplains and of 6 how the edge of a floodplain may be identified; or 7 (d) explain how a bench, bar or in-stream island in a 8 watercourse may typically be recognised; or 9 (e) explain how the bed or a bank of a watercourse may 10 typically be recognised; or 11 (f) explain how an anabranch may be recognised. 12 `(3) A regulation under this section is not invalid only because it 13 supplements the provisions of this Act by providing greater 14 certainty than would otherwise be the case under this Act in 15 relation to the identification of watercourses and the outer 16 banks of watercourses in particular circumstances or types of 17 circumstances.'. 18 Clause 247 Insertion of new ch 9, pt 5, div 14 19 Chapter 9, part 5-- 20 insert-- 21 `Division 14 Transitional provisions for Natural 22 Resources and other Legislation 23 Amendment Act 2010 24 `1171 Continuing application of s 21 25 `(1) The repealed section 21 continues to apply for all matters 26 arising before the commencement of this section as if the 27 Water Act 2000 had not been amended by the Natural 28 Resources and Other Legislation Amendment Act 2010. 29 `(2) In this section-- 30 Page 271

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 21 Amendment of Water Act 2000 [s 247] repealed section 21 means section 21 as in force before the 1 commencement of this section. 2 `1172 Transition for jurisdictional change for existing 3 licence or permit 4 `(1) This section applies if-- 5 (a) immediately before the commencement of this section, a 6 person was authorised under a licence or permit under 7 this Act to conduct an activity of any type within a 8 watercourse; and 9 (b) before the commencement of this section, the person 10 lawfully conducted, on land adjoining the land to which 11 the licence or permit applied, an activity of the same 12 nature; and 13 (c) on the commencement of this section, the adjoining land 14 became land included in a watercourse; and 15 (d) the licence or permit is still in force after the 16 commencement of this section. 17 `(2) The licence or permit, while still in force, is taken to be 18 extended to authorise the conduct of the activity on the 19 adjoining land-- 20 (a) for the period of 6 months immediately following the 21 commencement of this section; or 22 (b) if within the 6 months period the person makes an 23 application under subsection (3) and the application has 24 not been approved or refused at the end of the 6 months 25 period--until the chief executive approves or refuses the 26 application. 27 `(3) The person may apply to the chief executive for the extension 28 of the application of the licence or permit to the adjoining 29 land. 30 `(4) An application under subsection (3) must be made within 6 31 months after the commencement of this section. 32 Page 272

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 21 Amendment of Water Act 2000 [s 248] `(5) In deciding the application, the chief executive must have 1 regard to the same matters required to be taken into 2 consideration for the grant of the licence or permit. 3 `(6) If the chief executive approves the application, the licence or 4 permit, while still in force, is taken, subject to any reasonable 5 conditions stated in the approval, to be extended to authorise 6 the conduct of the activity on the adjoining land, starting when 7 the extension provided for in subsection (2) ends. 8 `(7) If, having regard to the matters mentioned in subsection (5), 9 the chief executive can not approve an application under 10 subsection (3), the chief executive may nevertheless give an 11 authority that applies as for an approval under subsection (6), 12 but only for the period stated in the authority. 13 `(8) The chief executive may give an applicant an authority under 14 subsection (7) only if the applicant satisfies the chief 15 executive that the applicant will suffer particular hardship 16 because of the refusal of the application under subsection (3). 17 `(9) The period stated in the authority under subsection (7) must 18 not be longer than the period reasonably needed for the 19 applicant to move the conduct of the activity from the 20 adjoining land, but in any event must not end later than 5 21 years after the commencement of this section. 22 `(10) Within 10 days after making a decision about an application 23 or authority under this section, the chief executive must give 24 the applicant an information notice about the decision.'. 25 Clause 248 Amendment of sch 4 (Dictionary) 26 (1) Schedule 4, definitions bed and banks, floodwater and 27 watercourse-- 28 omit. 29 (2) Schedule 4-- 30 insert-- 31 `bar, in a watercourse, means a temporary accumulation of 32 sediment-- 33 Page 273

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 21 Amendment of Water Act 2000 [s 248] (a) that is within the bed of the watercourse; and 1 (b) to which the following characteristics can generally be 2 expected to apply-- 3 (i) it is formed during the recession of flows in the 4 watercourse when sediment is deposited in the bed 5 of the watercourse; 6 (ii) it is a dynamic feature, being changed by flow 7 events in the watercourse; 8 (iii) because of its dynamic nature as mentioned in 9 subparagraph (ii), its covering vegetation is 10 immature, and not woody; 11 (iv) it is made up of coarse materials, in particular, sand 12 and gravel. 13 bed and banks, of a lake, means the land that is normally 14 covered by the water of the lake, whether permanently or 15 intermittently, regardless of frequency, but does not include 16 adjoining land from time to time covered in flood events. 17 bench, in a watercourse, means a storage of sediment-- 18 (a) that is within the channel of the watercourse; and 19 (b) to which the following characteristics can generally be 20 expected to apply-- 21 (i) it is higher than the bed of the watercourse and bars 22 in the watercourse, but lower than the level of 23 either outer bank of the watercourse; 24 (ii) it is formed through sediment deposition during 25 flow events in the watercourse that are at or near 26 the level of either outer bank; 27 (iii) it is a reasonably flat sediment deposit, reasonably 28 straight or gently curved as viewed from above, 29 and at least partly consolidated by riparian 30 vegetation; 31 (iv) it may be distinguished from a floodplain because 32 the deposits making up a floodplain are finer and 33 more layered. 34 Page 274

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 21 Amendment of Water Act 2000 [s 248] depositional feature, in relation to a watercourse, means a 1 deposit of clay, sand or silt that is carried during flows of 2 water in the watercourse. 3 Examples-- 4 mud deposited in cracks in rocks 5 sand deposits behind rocks 6 downstream limit, of a watercourse, means-- 7 (a) if a regulation under section 1006(1) has declared a 8 downstream limit of the watercourse--the downstream 9 limit declared; or 10 (b) otherwise--the point to which the high spring tide 11 ordinarily flows and reflows in the watercourse, whether 12 due to a natural cause or to an artificial barrier. 13 drainage feature means a natural landscape feature, including 14 a gully, drain, drainage depression or other erosion feature 15 that-- 16 (a) is formed by the concentration of, or operates to confine 17 or concentrate, overland flow water during and 18 immediately after rainfall events; and 19 (b) flows for only a short duration after a rainfall event, 20 regardless of the frequency of flow events; and 21 (c) commonly, does not have enough continuing flow to 22 create a riverine environment. 23 Example for paragraph (c)-- 24 There is commonly an absence of water favouring riparian 25 vegetation. 26 floodplain means an area of reasonably flat land adjacent to a 27 watercourse that-- 28 (a) is covered from time to time by floodwater overflowing 29 from the watercourse; and 30 (b) does not, other than in an upper valley reach, confine 31 floodwater to generally follow the path of the 32 watercourse; and 33 Page 275

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 21 Amendment of Water Act 2000 [s 248] (c) has finer sediment deposits than the sediment deposits 1 of any bench, bar or in-stream island in the watercourse. 2 floodwater, in relation to a watercourse or lake, means water 3 that has overflowed the outer banks of the watercourse, or the 4 bed and banks of the lake, because of a flood event affecting 5 the watercourse or lake, and is on land near the watercourse or 6 lake. 7 in-stream island, in a watercourse, is a storage of sediment-- 8 (a) that is within the channel of the watercourse; and 9 (b) to which the following characteristics can generally be 10 expected to apply-- 11 (i) it is formed by processes within the watercourse; 12 (ii) its crest is not higher than either outer bank of the 13 watercourse; 14 (iii) it is a dynamic feature, being changed by flow 15 events in the watercourse; 16 (iv) it is made up of coarse materials, in particular sand 17 and gravel. 18 intermittent, in relation to the flow of water in a watercourse 19 or the collection of water in a lake, includes variable, having 20 regard to seasonal variations, and to year by year variability of 21 seasons. 22 outer bank see section 5A. 23 scour mark, in relation to a watercourse, means-- 24 (a) a mark made on a bank of the watercourse by the 25 sweeping action of suspended sediments in water during 26 flows in the watercourse; or 27 (b) a mark that can be identified by weathering stains, or the 28 absence of lichens, on erosion-resistant surfaces of a 29 bank of the watercourse. 30 Example of an erosion-resistant surface-- 31 rock 32 Page 276

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Part 22 Repeal and consequential and other amendments [s 249] upstream limit, of a watercourse, means, if a regulation under 1 section 1006(1) has declared an upstream limit of the 2 watercourse, the upstream limit declared. 3 watercourse see section 5.'. 4 (3) Schedule 4, definition weir, `below the banks of'-- 5 omit, insert-- 6 `below the outer banks of'. 7 Part 22 Repeal and consequential and 8 other amendments 9 Clause 249 Act repealed 10 The Forestry Plantations Queensland Act 2006, No. 16 is 11 repealed. 12 Clause 250 Regulation repealed 13 The Forestry Plantations Queensland Regulation 2006, SL 14 No. 78 is repealed. 15 Clause 251 Acts amended 16 The schedule amends the Acts it mentions. 17 Page 277

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Schedule Schedule Consequential amendments 1 section 89 2 Aboriginal Cultural Heritage Act 2003 3 1 Schedule 2-- 4 insert-- 5 `occupier, of land or a place that is a licence area under the 6 Forestry Act 1959, includes a plantation licensee and a 7 plantation sublicensee for the licence area under that Act.'. 8 Biodiscovery Act 2004 9 1 Section 14(2A)-- 10 omit, insert-- 11 `(2A) Also, if the application relates to State land that is a State 12 plantation forest under the Forestry Act 1959, the chief 13 executive must consult with any plantation licensee for a 14 licence area in the State plantation forest when considering 15 the application.'. 16 2 Section 14(5)-- 17 omit, insert-- 18 `(5) In this section-- 19 licence area, in a State plantation forest, see the Forestry Act 20 1959, schedule 3. 21 Page 278

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Schedule plantation licensee, for a licence area in a State plantation 1 forest, see the Forestry Act 1959, schedule 3.'. 2 Environmental Protection Act 1994 3 1 Section 579-- 4 insert-- 5 `(3A) If the land is a licence area under the Forestry Act 1959-- 6 (a) the plantation licensee or plantation sublicensee, as 7 defined under that Act, for the licence area is an 8 occupier of the land for the purposes of this section; and 9 (b) compensation is payable as provided under this section 10 to the plantation licensee or plantation sublicensee as 11 occupier of the licence area and the State as owner of the 12 State forest of which the licence area forms part in the 13 proportions decided by a court of competent 14 jurisdiction.'. 15 Geothermal Exploration Act 2004 16 1 Section 47(1)(a), `the landholder'-- 17 omit, insert-- 18 `each landholder'. 19 2 Schedule, definition landholder, paragraphs (b) and (c)-- 20 renumber as paragraphs (c) and (d). 21 3 Schedule, definition landholder-- 22 insert-- 23 Page 279

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Schedule `(b) if the land is a licence area under the Forestry Act 1 1959--a person who is a plantation licensee under that 2 Act for the licence area;'. 3 Public Service Act 2008 4 1 Schedule 1, entry for Forestry Plantations Queensland 5 Office and its head-- 6 omit. 7 Queensland Heritage Act 1992 8 1 Schedule, definition owner, item 1, paragraph (f), after 9 `State forest'-- 10 insert-- 11 `, other than a licence area,'. 12 2 Schedule, definition owner, item 1, paragraph (f), as 13 amended-- 14 renumber as paragraph (g). 15 3 Schedule, definition owner, item 1-- 16 insert-- 17 `(f) for land (licence area) the subject of a plantation licence 18 or plantation sublicence under the Forestry Act 19 1959--the State, the plantation licensee and any 20 plantation sublicensee for the licence area;'. 21 Page 280

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Schedule Recreation Areas Management Act 2006 1 1 Schedule, definition area land-holder, paragraph (f)-- 2 renumber as paragraph (g). 3 2 Schedule, definition area land-holder-- 4 insert-- 5 `(f) for land (licence area) subject to a plantation licence 6 under the Forestry Act 1959-- 7 (i) the chief executive of the department in which that 8 Act is administered; and 9 (ii) the plantation licensee for the licence area;'. 10 3 Schedule, definition State land-- 11 insert-- 12 `(g) subject to a plantation licence under the Forestry Act 13 1959.'. 14 Statutory Bodies Financial Arrangements Act 1982 15 1 Section 6(1)(ia)-- 16 omit. 17 Water Act 2000 18 1 Section 203, definition owner-- 19 insert-- 20 Page 281

 


 

Natural Resources and Other Legislation Amendment Bill 2010 Schedule `(f) the plantation licensee of a plantation licence under the 1 Forestry Act 1959.'. 2 2 Schedule 4, definition owner, paragraph (a)(iv) and (v)-- 3 renumber as paragraph (a)(v) and (vi). 4 3 Schedule 4, definition owner, paragraph (a)-- 5 insert-- 6 `(iv) the plantation licensee of a plantation licence under 7 the Forestry Act 1959;'. 8 State of Queensland 2010 Page 282

 


 

AMENDMENTS TO BILL

Natural Resources and Other Legislation Amendment Bill 2010 Natural Resources and Other Legislation Amendment Bill 2010 Amendments agreed to during Consideration 1 Clause 2 (Commencement) Page 24, line 21, after `sections'-- insert-- `118,'. 2 Clause 14 (Amendment of s 61 (Interpretation and application of division)) Page 28, line 24, `a the'-- omit, insert-- `a'. 3 Clause 16 (Amendment of s 68 (Powers of occupier of entry etc.)) Page 29, lines 23 and 24-- omit, insert-- `the occupier of land, is also a prescribed person, the references to a prescribed person in subsections (2) and (3) do not include the'. 4 Clause 20 (Insertion of new ss 18A-18C) Page 32, line 18, `within'-- omit, insert-- `for'. Page 1

 


 

Natural Resources and Other Legislation Amendment Bill 2010 5 Clause 29 (Amendment of s 35 (Granting of permit for land within State forest)) Page 39, lines 10 to 13-- omit, insert-- `(2A) If a plantation licensee, plantation sublicensee, plantation manager or plantation officer (the decision maker) exercising power delegated to the decision maker under section 96B makes a decision under subsection (1) or (2), the decision maker'. 6 Clause 30 (Amendment of s 37 (Particular authorities over State forest, timber reserve or forest entitlement area)) Page 39, lines 22 to 25-- omit, insert-- `(5) Subsections (2B) and (3) do not limit-- (a) the matters for which compensation is payable; or (b) the amount of compensation payable; or (c) the persons to whom compensation is payable; under the Mining Acts and the GHG Storage Act.'.'. 7 Clause 34 (Amendment of s 55 (Licences to get forest products etc.)) Page 41, line 8, `permit'-- omit, insert-- `licence'. 8 Clause 35 (Amendment of s 56 (Permits etc.)) Page 41, lines 14 to 22-- omit, insert-- `(4) Subsection (5) applies if a plantation licensee, plantation sublicensee, plantation manager or plantation officer (the Page 2

 


 

Natural Resources and Other Legislation Amendment Bill 2010 decision maker) exercising power delegated to the decision maker under section 96B makes a decision under this section. `(5) The decision maker must advise the applicant for the permit, licence, lease, or other authority, or agreement or contract (each an authorisation) or the extension of the authorisation that the applicant may apply for a review of the decision under section 83A within 28 days if the applicant is dissatisfied with the decision. `(6) In this section, a reference to an authority, agreement or'. 9 Clause 36 (Amendment of s 57 (Power of entry under licence or permit)) Page 41, lines 25 to 31-- omit. 10 Clause 37 (Amendment of s 58 (Power to cancel, suspend, permit, licence etc.)) Page 42, line 5, `(7)'-- omit, insert-- `(9)'. 11 Clause 45 (Insertion of new pts 6D and 6E), proposed section 61QI Page 48, after line 30-- insert-- `(4) If the Minister decides to refuse to approve the transfer, the plantation licensee must be given a written notice of the decision and the reasons for it.'. 12 Clause 45 (Insertion of new pts 6D and 6E), proposed section 61QJ (1) Page 49, line 2, `interest in'-- omit, insert-- Page 3

 


 

Natural Resources and Other Legislation Amendment Bill 2010 `rights and obligations under'. (2) Page 49, after line 12-- insert-- `(3) If the chief executive decides to refuse to approve the transfer of a related agreement, the plantation licensee must be given a written notice of the decision and the reasons for it.'. 13 Clause 45 (Insertion of new pts 6D and 6E), proposed section 61QL Page 50, line 6, after `or'-- insert-- `to meet the plantation licensee's'. 14 Clause 45 (Insertion of new pts 6D and 6E), proposed section 61QR Page 55, after line 8-- insert-- `(4) If the Minister decides to refuse to approve the transfer, the plantation sublicensee must be given a written notice of the decision and the reasons for it.'. 15 Clause 45 (Insertion of new pts 6D and 6E), proposed section 61QS (1) Page 55, line 10, `interest in'-- omit, insert-- `rights and obligations under'. (2) Page 55, after line 20-- insert-- `(3) If the chief executive decides to refuse to approve the transfer of a related agreement, the plantation sublicensee must be given a written notice of the decision and the reasons for it.'. Page 4

 


 

Natural Resources and Other Legislation Amendment Bill 2010 16 Clause 45 (Insertion of new pts 6D and 6E), proposed section 61QU Page 56, lines 7 to 14-- omit. 17 Clause 45 (Insertion of new pts 6D and 6E), proposed section 61QV (1) Page 56, lines 21 to 24-- omit, insert-- `(2) A plantation licensee or plantation sublicensee that grants a mortgage over its rights in a plantation licence or plantation sublicence with the Minister's approval may also grant a mortgage over its rights in a related agreement to the mortgagee--'. (2) Page 56, after line 26-- insert-- `(3) If the Minister decides to refuse to approve the grant of a mortgage over the rights of a plantation licensee or plantation sublicensee under a plantation licence or plantation sublicence, the plantation licensee or plantation sublicensee must be given a written notice of the decision and the reasons for it. `(4) If the chief executive decides to refuse to approve the grant of a mortgage over the rights of a plantation licensee or plantation sublicensee in a related agreement, the plantation licensee or plantation sublicensee must be given a written notice of the decision and the reasons for it.'. 18 Clause 45 (Insertion of new pts 6D and 6E), proposed section 61RB Page 61, lines 1 to 4-- omit, insert-- `affected area means-- Page 5

 


 

Natural Resources and Other Legislation Amendment Bill 2010 (a) if the application relates to the surrender of a plantation licence--the licence area for the plantation licence; or (b) if the application relates to the surrender of part of a plantation licence--the part of the licence area for the plantation licence that will be removed from the licence area if the application is approved.'. 19 Clause 45 (Insertion of new pts 6D and 6E), proposed section 61RC Page 61, lines 31 and 32 and page 62, lines 1 and 2-- omit, insert-- `affected area, in relation to an application for division, means the part of the licence area for the plantation licence that will be removed from the licence area if the application is approved.'. 20 Clause 45 (Insertion of new pts 6D and 6E), proposed section 61RD Page 62, line 14, `each'-- omit, insert-- `any'. 21 Clause 45 (Insertion of new pts 6D and 6E), proposed section 61RH Page 64, line 24, `61RF'-- omit, insert-- `61RI'. 22 Clause 45 (Insertion of new pts 6D and 6E), proposed section 61RI Page 65, lines 30 and 31-- omit, insert-- Page 6

 


 

Natural Resources and Other Legislation Amendment Bill 2010 `(c) the surrender of the plantation licence or part of the plantation licence under section 61RB.'. 23 Clause 45 (Insertion of new pts 6D and 6E), proposed section 61RO (1) Page 68, line 17, `The grant of a'-- omit, insert-- `A'. (2) Page 69, line 6, `against dealings with'-- omit, insert-- `in relation to'. 24 Clause 45 (Insertion of new pts 6D and 6E), proposed section 61RW (1) Page 73, lines 16 to 22-- omit, insert-- `(c) for a document relating to a transaction for which the Minister's approval or consent is needed--the Minister has given the approval or consent; and (d) for a document relating to a plantation licence the subject of a registered mortgage--the mortgagee under the registered mortgage has given consent to the transaction to which the document relates; and (e) for a document relating to a plantation sublicence the subject of a registered mortgage-- (i) the mortgagee under the registered mortgage has given consent to the transaction to which the document relates; and (ii) if the plantation licence is also the subject of a registered mortgage--the mortgagee under that registered mortgage has given consent to the transaction to which the document relates.'. (2) Page 73, line 26, after `(d)'-- Page 7

 


 

Natural Resources and Other Legislation Amendment Bill 2010 insert-- `or (e)'. 25 Clause 45 (Insertion of new pts 6D and 6E), proposed section 61SM Page 81, line 14-- omit, insert-- `(3) A registered mortgage may be transferred only by registering a transfer of the registered mortgage. `(4) A mortgage may be transferred by the mortgagee only with'. 26 Clause 45 (Insertion of new pts 6D and 6E), proposed section 61SR (1) Page 83, lines 6 to 8-- omit, insert-- `(2) A registered mortgagee transferring a plantation licence or plantation sublicence with the Minister's approval obtained under subsection (1) may also transfer a related agreement--'. (2) Page 83, line 13, `(1)'-- omit, insert-- `(2)'. 27 Clause 45 (Insertion of new pts 6D and 6E), proposed section 61SV (1) Page 84, line 22, `The'-- omit, insert-- `(1) The'. (2) Page 84, after line 24-- insert-- `(2) In this section-- Page 8

 


 

Natural Resources and Other Legislation Amendment Bill 2010 office copy of an enforcement warrant under the State Penalties Enforcement Act 1999 means a copy of the enforcement warrant issued by the registrar under that Act.'. 28 Clause 45 (Insertion of new pts 6D and 6E), proposed section 61SW Page 85, line 8, before `the extended time'-- insert-- `for an enforcement warrant under the Supreme Court of Queensland Act 1991, section 93A--'. 29 Clause 45 (Insertion of new pts 6D and 6E), proposed section 61TG Page 90, line 10, `(c) or (d)'-- omit, insert-- `(b) or (c)'. 30 Clause 57 (Amendment of s 73 (Unlawfully using State forests etc.)) Page 107, lines 8 to 18-- omit, insert-- `(3) If a plantation licensee, plantation sublicensee, plantation manager or plantation officer (the decision maker) exercising power delegated to the decision maker under section 96B makes a decision under this section, the decision maker must advise the applicant for the permit that the applicant may apply for a review of the decision under section 83A within 28 days if the applicant is dissatisfied with the decision.'.'. Page 9

 


 

Natural Resources and Other Legislation Amendment Bill 2010 31 After clause 57 Page 107, line 19, ` `57A Amendment'-- omit, insert-- `Clause 57A Amendment'. 32 After clause 59 Page 108, line 19, ` `59A Amendment'-- omit, insert-- `Clause 59A Amendment'. 33 Clause 62 (Amendment of s 84 (Matters may be completed by different officers)) Page 110, line 5, `subsection (1)'-- omit, insert-- `subsections (1) and (3)'. 34 Clause 64 (Insertion of new s 88A) Page 111, lines 3 to 5-- omit, insert-- `(1) This section applies if a fee or amount-- (a) may be retained or recovered by a plantation licensee or plantation sublicensee under this Act, including under section 96B(6); and'. 35 After clause 64 Page 111, after line 11-- insert-- `Clause 64A Amendment of s 89 (Recovery of moneys due) `(1) Section 89(1), after `loss or damage'-- insert-- Page 10

 


 

Natural Resources and Other Legislation Amendment Bill 2010 `(including under section 88(2C))'. `(2) Section 89-- insert-- `(1A) All moneys owing to a plantation licensee or plantation sublicensee in relation to any loss or damage (including under section 88(2C)) to natural resource product or quarry material the property of the plantation licensee or plantation sublicensee may be recovered by the plantation licensee or plantation sublicensee in any court of competent jurisdiction by action as for a debt.'. `(3) Section 89(2), `any such moneys'-- omit, insert-- `moneys due or owing under subsection (1) or (1A)'. `(4) Section 89(2), after `under this Act'-- insert-- `in relation to the conduct constituting the contravention'.'. 36 Clause 65 (Amendment of s 91 (Power to waive proceedings)) Page 111, line 16, after `licence area'-- insert-- `that is got, ringbarked, destroyed, damaged, used, marked or in any way interfered with by the plantation licensee or any plantation sublicensee for the licence area or any employee, agent, contractor, customer or invitee of the plantation licensee or plantation sublicensee'. 37 Clause 69 (Insertion of new ss 96B-96E), proposed section 96B (1) Page 112, line 15, `its'-- omit, insert-- `a'. Page 11

 


 

Natural Resources and Other Legislation Amendment Bill 2010 (2) Page 112, lines 24 to 28-- omit, insert-- `A plantation licensee or plantation sublicensee may not exercise power under section 56 to grant sales permits for the sale of natural resource product from its licence area but it can contract with other persons to sell natural resource product on its licence area under section 61QD.'. (3) Page 113, line 20, after `licensee's'-- insert-- `or plantation sublicensee's'. (4) Page 113, line 23, after `behaviour'-- insert-- `or general use of the area'. (5) Page 113, lines 26 and 27-- omit, insert-- ` prohibiting or limiting use of an unformed road to protect it from traffic damage after heavy rain'. (6) Page 113, lines 28 to 33 and page 114, lines 1 to 5-- omit, insert-- `(5) Subsection (6) applies if, in relation to a function of the chief executive delegated under this section to a plantation licensee or plantation sublicensee (each a delegate) or an appointed person and performed by a delegate or an appointed person, the State is entitled to receive a fee prescribed under a regulation or another amount under this Act in connection with the performance of the function (each a relevant amount). `(6) A relevant amount-- (a) may be recovered by the delegate who performed the function or appointed the appointed person who performed the function; and (b) if received or recovered by the delegate who performed the function or appointed the appointed person who Page 12

 


 

Natural Resources and Other Legislation Amendment Bill 2010 performed the function, may be retained by the delegate; and (c) does not form part of the consolidated fund.'. (7) Page 114, lines 15 to 19-- omit, insert-- `(b) for a plantation sublicensee--the licence area for the plantation sublicensee's plantation sublicence; or (c) for a plantation manager--the licence area or part of the licence area for which the plantation manager is appointed; or (d) for a plantation officer--the licence area for which the plantation officer is appointed.'. 38 Clause 69 (Insertion of new ss 96B-96E), proposed section 96E (1) Page 115, line 17, `licensee or plantation manager'-- omit, insert-- `operator'. (2) Page 115, lines 23 and 24, `licensee or plantation manager'-- omit, insert-- `operator'. 39 Clause 72 (Insertion of new pt 10, div 2), proposed section 118 (1) Page 116, line 10, `subdiv 1'-- omit, insert-- `div 2'. (2) Page 116, line 23-- omit, insert-- `commencement means-- Page 13

 


 

Natural Resources and Other Legislation Amendment Bill 2010 (a) for section 121--the day on which the section commences; or (b) otherwise--the day on which section 119 commences.'. (3) Page 116, line 27, before `section'-- insert-- `repealed'. 40 Clause 72 (Insertion of new pt 10, div 2), proposed section 119 (1) Page 117, line 23, `is, or becomes,'-- omit, insert-- `becomes'. (2) Page 117, line 25, after `61QG'-- insert-- `or 61QQ'. (3) Page 117, line 29, after `part'-- insert-- `by the chief executive under section 17'. 41 Clause 72 (Insertion of new pt 10, div 2), proposed section 120 Page 118, line 9, before `section'-- insert-- `repealed'. 42 Clause 72 (Insertion of new pt 10, div 2), proposed section 122 Page 119, line 5, before `section'-- insert-- `repealed'. Page 14

 


 

Natural Resources and Other Legislation Amendment Bill 2010 43 Clause 72 (Insertion of new pt 10, div 2), proposed section 123 Page 119, line 12, before `section'-- insert-- `repealed'. 44 Clause 72 (Insertion of new pt 10, div 2), proposed section 124 Page 119, line 28, before `section'-- insert-- `repealed'. 45 Clause 72 (Insertion of new pt 10, div 2), proposed section 125 Page 120, line 4, before `section'-- insert-- `repealed'. 46 Clause 72 (Insertion of new pt 10, div 2), proposed section 126 Page 120, line 12, before `section'-- insert-- `repealed'. 47 Clause 72 (Insertion of new pt 10, div 2), proposed section 128 Page 121, lines 18 and 19, `as provided under subsection (3)'-- omit, insert-- `if subsection (2) does not apply'. Page 15

 


 

Natural Resources and Other Legislation Amendment Bill 2010 48 Clause 72 (Insertion of new pt 10, div 2), proposed section 129 Page 122, lines 28 to 31 and page 123, lines 1 and 2-- omit, insert-- `(1) This section applies to a permit under section 73(2) granted by an administering entity, including by acting under repealed section 61M, that is in force immediately before the commencement. `(2) After the commencement, the permit-- (a) continues in force; and (b) is taken to have been granted by the chief executive.'. 49 Clause 74 (Amendment of sch 3 (Dictionary)) (1) Page 124, line 12, `61 RC'-- omit, insert-- `61RC.'. (2) Page 125, line 26, `61QO(1)'-- omit, insert-- `61QO(2)'. 50 Clause 83 (Replacement of sch 4 (State forest parks)) (1) Page 128, after line 15-- insert-- `SFP 4 on plan FSM161'. (2) Page 128, lines 23 and 24-- omit, insert-- `SFP 23 on plan FSM160'. Page 16

 


 

Natural Resources and Other Legislation Amendment Bill 2010 51 Clause 84 (Insertion of new sch 4A) (1) Page 131, line 22-- omit, insert-- `Lots A, B and C on PLP0200'. (2) Page 131, line 28-- omit, insert-- `Lots A and B on PLP0466'. State of Queensland 2010

 


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