Land Negotiation Program for Crown land in NSW

by | Sep 1, 2017

In an earlier post we took an in depth look at the changes for management of Crown land by local councils. These changes will be introduced under the Crown Land Management Act 2016, which will come into full effect next year. We recommended that local councils would benefit from an early and thorough analysis of their landholdings to determine the best strategy to comply with new legislation.

Since then the NSW Government has released details about the “Land Negotiation Program”. This sets the framework for the transfer of Crown land to local councils. In this article, we cover the details of the program and how councils can continue to prepare for the imminent changes.

What is the Land Negotiation Program?

The Land Negotiation Program is a voluntary program which sets up a formal process for the transfer of Crown land to local councils and local Aboriginal Land Councils (LALCs). It is an extension of the pilot that was started last year with four local councils.

The program aims to:

/   Firstly, recognise the importance of land to Aboriginal people – this means facilitating transfer of appropriate Crown land to LALCs.

/   Secondly, ensure that Crown land is held by the most appropriate landholder – this means that for locally significant land, this is owned and managed by local councils and for State significant land, this land is owned and managed by the State government.

Overall, the program intends to deliver greater certainty about Crown land in NSW.

How do local councils get involved in the Land Negotiation Program?

Local councils have been invited to submit an expression of interest to participate in the Land Negotiation Program. LALCs have also been invited to participate. Joint applications between local councils and LALCs are encouraged.

The State government will assess these applications against specific criteria. The Minister for Lands and Forestry will then make the final decision about who will be invited to join the program later this year.

If you have missed the expression of interest deadline (which has just recently closed) there may be future opportunity to join the program. This will depend upon the number of applications received and approved under the current round. In this case, you will benefit from an early strategic review of your landholdings having regard to the criteria below.

The program will be implemented over the next 3-4 years. Each year six areas will be added to the program.

What are the steps in the Land Negotiation Program?

For local councils that are successful in joining the Land Negotiation Program, there will be a four step process (see the Department of Lands Fact Sheet):

/   First, there must be agreement from all parties to participate. This will including scoping work and access to Crown land data and information via a new web based system called LandsLink.

/   Second, each party will then carry out a detailed assessment of land that they may be interested in owning. This assessment will consider the “local land” and “State land” criteria, which we talk about in more detail below.

/   Third, the parties will negotiate to figure out who is best placed to own and manage the land to bring about the best benefits locally and at a State level. This will be a facilitated process. Negotiations will involve the NSW government, the NSW Aboriginal Land Council, the relevant LALC and local council plus potentially any native title parties.

/   The details of the negotiation process will be documented in an agreement – either a “Local Land Agreement” for local councils or an “Aboriginal Land Agreement” for LALCs.

What are the “State land” criteria?

State land is land that is of State significance and should be kept by the State government for the benefit of the people of NSW. The criteria is land that:

/ currently provides, or is required for, planned core government services and infrastructure

/ is part of a state or regionally significant system or network

/ is of high environmental value at a state or regional scale and is required for addition to the conservation network, including land identified for future reservation

/ is iconic or contains an iconic asset

/ has or contains an item of state or heritage importance

/ includes beaches, coasts, estuaries and adjoining, contiguous foreshore lands

/ produces or has the identified and earmarked potential to produce significant income for the state 

The State government will retain land that meets this criteria and will map this land on the new LandsLink system.

What are the “local land” criteria?

Local land is land that is predominantly of local significance and would benefit from local ownership. The local land criteria were developed as part of an earlier pilot and will ultimately be enshrined in the regulations to be released later this year. The criteria are:

/ land that provides, or has the demonstrated potential to provide, consistent with local planning instruments, as a public good predominantly for people in the local government area or in adjacent local government areas

/ land use that is consistent with the functions of local government, or land that has identified potential to be used for activities consistent with local government functions

/ land that is managed, or has the identified potential to be managed, as a community asset by local government or some other body

Land that meets these criteria could be transferred to local councils or LALCs as part of the Land Negotiation Program. Importantly, there will be no forced transfers of land.

Local land would typically include land being used, or has the potential to be used for community purposes. Examples include parks, gardens, local sports fields, recreation centres, community centres, swimming pools, tennis courts, scout halls and libraries (see the Department of Lands Factsheet). Interestingly, given the State land criteria, it would exclude coastal recreation and foreshore areas even though the community is likely to perceive this land as having local importance. 

What happens after the land is transferred to local councils?

Once land is transferred to local councils under the Crown Land Management Act 2016, local councils will own and manage that land under the Local Government Act 1993. Most of the land transferred to local councils will be classified as “community land”. This means that local councils will not be able to sell the land. A plan of management will also govern the use of that land.

There will be some limited exceptions where the land will be classified as operational and managed accordingly. For example, land that is used for waste transfer stations.

Where land is not transferred into local council ownership, it will be managed by local councils under the Local Government Act 1993. We will be writing more about this change and what it means for local councils, so stay tuned.

If you are interested in finding out more about the Crown land reforms and how you can prepare for these imminent changes, please get in contact with Steve or Emma:

Steve Thompson 

Director – Planning and Strategy

T     0419 700 401

E     steve@localeconsulting.com.au

Emma Broomfield 

Director – Legal, Governance and Mediation

T     0421 180 881

E     emma@localeconsulting.com.au

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Disclaimer: This publication is provided in good faith and is for general information purposes only. This publication does not constitute legal advice or other professonial advice, and must not be relied upon. You should seek legal or other professional advice in relation to matters arising out of the publication having regard to your circumstances and needs. No warranty or representation regarding the reliability, quality or accuracy of any information in this publication is given by Locale Consulting or the authors of the publication.