Local Government Act 1999: Local Government Land

From the commencement date of the Local Government Act 1999 all local government land (except roads) will be taken to be classified as community land.
Land classified as community land may not be sold by the Council. However, the 1999 Act establishes two processes by which community land may be freed from that classification and thus sold.

Land may, within the first three years of the commencement of the Act, be excluded from classification as community land provided that the land is unaffected by the provisions of a reservation, dedication, trust or other instrument that would prevent or restrict its alienation. Thus, land which the Council has declared to be parklands may not be excluded from classification as community land. Thereafter land may not be excluded but the classification as community land may be revoked.

In order for the Council to exclude land from classification as community land the Council must follow the relevant steps set out in its public consultation policy. Further, if the land is not owned as freehold land by the Council but is under the Councils care, control and management, then the land may not be excluded without the approval of the owner of the land.

Section 50 of the 1999 Act details the Council's obligations with respect to the preparation and adoption of a public consultation policy.

Of interest is the requirement that the policy must at least provide for:

1. the publication in a newspaper circulating within the area of the Council of a notice describing the matter under consideration and advising interested persons to make submissions in relation to the matter within a period (which must be at least twenty-one days) stated in the notice; and
   
2. the consideration by the Council of any submissions made in response to an invitation under paragraph 1 above.
   

The exclusion process is not intended to allow councils to exclude land which was, prior to the commencement of the 1999 Act, "parklands". Instead it is expected that the councils will seek to "revoke" the classification of land as community land.

The process of revocation requires the Council to prepare a detailed report on the proposal to revoke the classification. The Council must also follow the steps set out in its public consultation policy.

The Council must submit the proposal and the report and any submissions received as part of the public consultation process for Ministerial approval.

As part of the Minister's approval, the Minister may require in circumstances where the Council proposes to sell the land once the classification is revoked, that the Council pay a proportion of the sale price to the government but only in circumstances where financial assistance was originally given to the Council to acquire the community land.

The Council must prepare and adopt a management plan for most but not necessarily all of its community land and manage the community land in accordance with the management plan. The Council must, before adopting the management plan, follow the relevant steps set out in its public consultation policy. Management plans must be adopted within five years of the commencement date of the 1999 Act.

Although a Council may only sell community land, in accordance with the exclusion or revocation procedures, it may grant a lease or licence, an authorisation or a permit to occupy or use the community land. Moreover, councils are permitted under the 1999 Act to lease community land not only for community purposes but also for business purposes. This is in contrast to the provisions of Section 457 of the current Act.

Land acquired after the commencement of the 1999 Act will be taken to have been automatically classified as community land unless:

1. the Council resolves before it becomes local government land that it is to be excluded from the classification as community land, and
   
2. the land is not affected by the provisions of a reservation dedication trust or other instrument that would prevent or restrict its alienation.
   

Councils are advised to consider carefully the nature and wording of the resolution authorising the acquisition of land to ensure that any land does not obtain the status of community land unless that is the councils expressed intention or desire.

The introduction of the 1999 Act raises interesting questions about how councils will continue to deal with their land prior to the commencement of the Act. For example, it is likely that some councils will be in the process of selling land just at the time when the 1999 Act commences. Councils are advised to give consideration to whether any "Special Conditions" are required to be included in contracts to ensure that settlement may be delayed at the option of the Council in circumstances where the Council becomes obliged to conduct public consultation or obtain Ministerial approval prior to exclusion or revocation of the community land classification.

The Statutes Repeal and Amendment (Local Government) Bill 1999 addresses the transitional issues relevant to the operation of the 1999 Act.

The Local Government Act, 1934 will not be completely repealed. Some specific provisions of the current Act will remain for an as yet undetermined period of time following the commencement of the 1999 Act.

Notably however Part XVII (Sections 301 to 376) and Part XXII (Sections 450 to 475) are to be struck out from the current Act. This means that the current Act will no longer be relevant for the purposes of councils and their dealings with land.

The Bill identifies certain very limited circumstances in which land owned by a Council will not be taken to be classified as community land. In short, a Council is required to have acquired the land within five years before the commencement date of the 1999 Act, the Council must be satisfied that the land was not intended to be retained for public or community use, and additionally before the acquisition there must have been a reasonable opportunity for the community to make submissions to the Council. The Council must resolve within six months of commencement of the 1999 Act for such land to be excluded from classification as community land under the 1999 Act.

This Bill expressly allows for processes commenced under Sections 454-474b (to exchange reserves) under the current Act to continue as if the current Act were not repealed. Although there are no express provisions for other land related processes, the Acts Interpretation Act, however, allows other processes commenced under the current Act to also continue as if the current Act had not been repealed - provided that the new legislation does not expressly prevent this.

For further information in respect to these issues, please contact Elizabeth Dowd on 61 8 8210 1211 or e-mail edowd@normans.com.au