Crown Land Leasing Guidelines
Leasing Legislation
Contents
1. Introduction
1.1 Crown land leasing
2. Legislation governing Crown land leasing
1
2
3
2.1 Background
3
2.2 Crown Land (Reserves) Act 1978
4
2.3 Land Act 1958
11
2.4. Forests Act 1958
13
2.5 Agreements to Lease
14
2.6 Legislation that affects the grant of Crown land leases
14
Appendix A – Other Leasing Provisions
18
1.
Crown Land (Reserves) Act 1978
18
2.
Land Act 1958
21
3.
Land (Surf Life Saving Association) Act 1967
22
Appendix B – Summary of Leasing Provisions
23
1. Introduction
This guideline has been developed by the Public Land Division of the Department of Sustainability and
Environment (DSE) to explain the key legislative provisions for Crown land leasing. The guideline
accompanies the Leasing Policy for Crown land in Victoria 2010 and applies to leases made under the:
• Crown Land (Reserves) Act 1978;
• Forests Act 1958; and
• Land Act 1958.
It is the first in a series of guidelines addressing the key statutory, policy and procedural requirements
associated with Crown leasing.
The guidelines are intended to help Crown land managers – including local and state government
agencies and committees of management appointed under the Crown Land (Reserves) Act 1978 make
decisions about leasing Crown land. The guidelines will also benefit current and prospective tenants
of Crown land.
Please note that the information contained in this guideline is not exhaustive and is a summary of the
main provisions. For specific issues, it may be necessary to seek independent legal advice or consult
with DSE.
Land Managers and prospective tenants need to be aware of the statutory requirements associated
with the granting of Crown land leases when planning and preparing a lease submission to DSE. The
legislative requirements must be addressed to ensure the lease is valid and, if these are not fulfilled,
the lease may be void, unenforceable or have unintended consequences.
1.1 Crown land leasing
About one third of Victoria is Crown land allocated for a range of public uses including national parks
and state forest, recreation areas, hospitals and sporting facilities. The Minister for Environment and
Climate Change (the Minister) is responsible for administration of the Acts which govern the
management of this land which amongst other things enable the granting of leases.
Most leasing of Crown land in Victoria is on land reserved under the Crown Land (Reserves) Act 1978
(CLRA). There are approximately 7,400 Crown land reserves in Victoria and these are managed by a
diverse range of land managers including local government, statutory bodies such as water
corporations and government agencies including Parks Victoria. Land managers are appointed as a
committee of management or trustees under the CLRA. Under the CLRA, a committee of management
or trustees may grant a lease with the prior written approval of the Minister.
The Minister alone has authority to grant leases under the Land Act 1958 (LA) and the Forests Act
1958 (FA) and in some situations may also grant leases on reserved land under the CLRA. Leases may
also be granted under the provisions of the National Parks Act 1975 however the statutory and policy
requirements of leasing in national parks are very different from those under the other acts
mentioned. Therefore, the process of granting leases under the National Parks Act 1975 is outside the
scope of this guideline. Also outside of the scope of these guidelines is leasing by alpine resort
management boards under the Alpine Resorts (Management) Act 1997.
It is important that DSE and land managers as responsible land management agencies have clear and
objective grounds to base their leasing decisions. In addition, prospective tenants must be aware of
legislative, policy and process requirements associated with the granting of Crown land leases.
Reference is made throughout the guidelines to the “Minister” with regard to the various leasing
powers. However, the Minister has authorised DSE officers to act on his/her behalf in relation to
carrying out most of the ministerial functions associated with the granting of leases. The Minister does
this through the delegation power contained in the Conservation Forests and Land Act 1987. There
are a number of exceptions where no delegation exists and these are identified.
2. Legislation governing Crown land leasing
2.1 Background
The following sections cover the main statutory requirements to grant a lease under the:
Crown Land (Reserves) Act 1978 (CLRA),
Land Act 1958 (LA); and
Forests Act 1958 (FA).
An overview is also provided of other key pieces of legislation which may be relevant in relation to the
granting of a Crown lease. These are:
Planning and Environment 1987
Coastal Management Act 1995
Retail Leases Act 2003
Native Title Act 1993
Traditional Owner Settlement Act 2010.
There are a number of less commonly used leasing provisions in the CRLA and LA. A summary of these
provisions is contained in Appendix A together with a description of the leasing power in the Land
(Surf Life Saving Association) Act 1967. Appendix B is a table summarising the leasing provisions
discussed.
2.2 Crown Land (Reserves) Act 1978
2.2.1 Section 17D Crown Land (Reserves) Act 1978
The most commonly used leasing provision in the CLRA is section 17D. This section allows
committees of management to grant leases, whereas the leasing powers in the LA and FA are solely
available to the Minister for Environment and Climate Change as the responsible Minister for the
relevant lands legislation.
Section 17D(1) provides for the grant of a lease over any class of Crown land reserved under section 4
of the CLRA for any purpose (regardless of whether or not the permitted use under the lease is
consistent with the reserve purpose).
Leases under section 17D are granted by:–
• the trustees or committee of management (appointed under sections 12 and 14 of the CLRA
respectively); or
• the Minister if there are no trustees or committee of management1.
The maximum term for which a lease may be granted under section 17D is 21 years. Before the
trustees or committee of management may grant a lease the Minister must approve:–
• the grant of the lease (pursuant to section 17D(1)); and
• the purpose of the lease (pursuant to sections 17D(1)).
For the Minister to give approval to the grant and purpose of a lease under section
17D, the Minister must be satisfied that the purpose for which the lease is to be granted
is not detrimental to the purpose which the land is reserved (refer to section 2.2.5
of this guideline).
Other criteria must be met for certain categories of reserved land that are subject to a parliamentary
scrutiny process, which is discussed in the next section.
The process for obtaining ministerial approval to the grant and purpose of the lease forms part of the
Approval in Principle submission to the Minister. 2
Unless otherwise directed by the Minister, trustees and committees of management are required to
expend lease rental funds on the reserve under their control.
1 The exception to this is the power provided to the Governor in Council, who on the joint recommendation of the Minister responsible for the CLRA and
the Minister responsible for the Health Services Act 1988, may confer leasing powers under section 17D to the Minister for Health (section 17AB of the
CLRA). The Department of Health and hospital networks manage a substantial property portfolio on Crown land including many leased properties and
this provision is to enable the Minister for Health to issue leases.
2 Leasing Policy for Crown Land in Victoria 2010. Page 7.
2.2.2 Section 17DA Parliamentary scrutiny of certain proposals
Some categories of reserved Crown land may only be leased under section 17D if additional requirements
are satisfied (refer section 17D(2)). These reservation purposes are shown in Figure 1.
Figure 1
• the preservation of areas of ecological significance
• the conservation of areas of natural interest or beauty or of scientific historic or
archaeological interest
• the preservation of species of native plants
• the propagation or management of wildlife or the preservation of wildlife habitat
• public parks gardens and ornamental plantations; and
• the protection of the coastline.
There are two exceptions to the general leasing prohibition of certain categories of reserved Crown
land. The first applies if the purpose of the proposed lease is consistent with an approved
recommendation of the Victorian Environmental Assessment Council (VEAC) and its predecessors.
If there is not an approved VEAC recommendation, the Minister may only approve a lease being issued
if the Minister is satisfied the following criteria apply to the lease:
• that there are special reasons which make granting of the lease reasonable and appropriate in the
particular circumstances; and
• the grant of a lease will not be substantially detrimental to the use and enjoyment of any adjacent
land reserved under the CLRA.
If the Minister is satisfied that these criteria have been met the Minister may then sign an Order
approving the grant of the lease. The Order must also then be published in the Victoria Government
Gazette. Once published in the Gazette it is treated as a statutory rule for the purposes of the
Subordinate Legislation Act 1994. This means that a copy of the notice must be:
• laid before both Houses of Parliament before the sixth sitting day after publication; and
• posted or delivered to each member of Parliament who has requested a copy.
The signed Order is subject to scrutiny by Parliament and can be disallowed by resolution of either
House of the Parliament. A resolution to disallow a notice must be given within 5 sitting days after it is
laid before Parliament. The resolution must then be passed on or before the tenth sitting day after the
notice of resolution has been given. If no resolution is given within 5 sitting days or passed within a
further 10 sitting days, the lease proposal can proceed.
The Minister’s powers under this section are not delegated.
2.2.3 Section 17CA – Leases for up to 65 years for other purposes
A term of 21 years is sufficient to accommodate the purposes of most leases. However, for projects
funded by tenants or of a large scale, a term of more than 21 years may be preferable to enable the
tenant to amortise that investment or to allow a development to proceed. Section 17CA is intended to
facilitate projects of this type. Under this section the term of a lease must be more than 21 years but
not more than 65 years. The lease may be for any purpose (whether consistent with the reserve
purpose or not).
Leases under section 17CA may only be granted by the Minister. The Minister may grant a lease under
this section over land managed by trustees or a committee of management or where there are no
trustees or committees of management.
Under section 17CA(1), before the Minister may grant a lease, the Minister must provide a statement
that the Minister is satisfied that:–
• the purpose for which the lease is to be granted is not detrimental to the purpose for which the land
is reserved; and
• the proposed use, development, improvements or works that are specified in the lease are of a
substantial nature and of a value which justifies a longer term; and
• the granting of a longer term lease is in the public interest.
Under section 17CC, for Crown land managed by trustees or a committee of management, the Minister
must also ensure that consultation is conducted with the trustees or committee of management prior
to the grant of the lease. The Leasing Policy for Crown Land in Victoria provides that in order for the
Minister to assess any proposal to grant a lease under this section, a business case must be prepared.
The provisions of section 17CA cannot be used to lease land reserved for the purposes noted in Figure
1, section 2.2.2 of this guideline except for land reserved for:
• public parks, gardens and ornamental plantations; or
• the protection of the coastline (or deemed to be reserved for the protection of the coastline).
Any proposal to lease land reserved for the above purposes under section 17CA is subject to a
parliamentary scrutiny process under section 17CB which is similar to that outlined in section 2.2.2 of
this guideline. Specifically, if the Minister is willing to grant a lease under section 17CA, the Minister is
required to:
• make a determination of the Minister’s intention to grant a lease
• publish that determination in the Victoria Government Gazette
• arrange to have the determination laid before each House of Parliament.
The signed determination is subject to scrutiny by Parliament and can be disallowed by resolution of
either House of Parliament. A resolution to disallow a determination must be given within 5 sitting
days after it is laid before Parliament. The resolution must then be passed on or before the tenth
sitting day after the notice of resolution has been given. If no resolution is given within 5 sitting days,
or passed within a further 10 sitting days, the lease proposal can proceed.
If the Minister grants a lease of land under section 17CA (1), section 17CC(2) allows for the
management of the lease to be carried out by the trustees or committee of management by way of
insertion of suitable conditions into the lease. Section 17CC further provides that a power given to
trustees or a committee of management to manage a lease made under section 17CA(1):
• does not extend to empowering the trustees or committee of management to vary, amend or
terminate the lease;
• may extend to empowering the trustees or committee of management to collect any tolls, fees,
rents, royalties or other charges that may be imposed in respect to the leased land.
Section 17CC further provides that any money collected or retained by trustees or a committee of
management under the lease must be expended on the land in respect of which the money is collected
or retained.
The Minister’s powers under this section are not delegated.
2.2.4 Minister approves lease terms and conditions
Section 17D(4) of the Act applies to leases granted under sections 17D and 17C and specifies that a
lease shall be subject to such covenants, exceptions, reservations and conditions as determined by the
trustees or committee of management and approved by the Minister, or determined by the Minister
alone if the land is not managed by a committee of management or trustees.
These are wide-ranging powers which leave substantial scope for negotiating conditions. Following
considerable consultation and discussion, DSE has prepared standard documents which should be
used in order to expedite the lease preparation process. If parties wish to vary these documents all
variations must be approved by DSE.
The power to approve the terms and conditions of leases made under section 17D may be delegated
by the Minister. Currently, there is no delegation for the granting of a long term lease made under
section 17CA.
2.2.5 Is the purpose of a lease detrimental to the purpose of the reserve?
Each of the three leasing provisions described above requires the Minister to make a decision on
whether or not a lease proposal is likely to be detrimental. This decision is important because it is a
primary threshold that must be cleared before a lease proposal can proceed further.
If the Minister’s approval to the grant and purpose of the lease requires parliamentary approval, as
described in section 2.2.2 of this guideline, the lease must not be “substantially detrimental to the use
and enjoyment of any adjacent reserved Crown land”.3
This differs from the requirements relating to other leases granted under section 17D and section
17CA, where the Minister must be satisfied that “the purpose for which the lease is being granted is not
detrimental to the purpose for which the land is reserved”.4
While these criteria vary slightly, the process for determining whether the lease proposal is
detrimental is similar.
The CLRA does not define the types of lease purposes that are detrimental to the various reservation
categories. This means that each lease proposal must be considered on a case-by-case basis, taking the
particular circumstances into account, so that DSE may make an appropriate recommendation to the
Minister.
To do this it is important for a committee of management or trustees to confirm which reservation
purpose applies to the proposed lease area. Confirming the reservation purpose will provide some
initial guidance on whether the proposed lease may or may not be detrimental to the reservation
purpose. The CLRA provides for more than thirty different purposes for which land can be reserved,
however this list is not exhaustive and land can reserved for any public purpose. The precise description
is made by an Order approved by the Governor in Council which is published in the Government
Gazette. If the reservation purpose is not known, the parties should make enquiries at their local DSE
office.
When the reservation description has been confirmed, the committee of management or trustees
should then consider a range of factors discussed below in assessing the merits of any lease proposal.
A statement of these merits should then form part of any lease application made by the committee of
3 Section 17D(3)(a) CLRA
4 Sections 17D(3)(b) and 17CA(2)(a)
management or trustees to DSE. This information will assist DSE in its evaluation of the lease proposal
including whether the required statutory criteria can be satisfied.
A wide range of factors may be relevant in making the assessment of any lease proposal. These
include:
• Is it necessary to lease reserved Crown land for the proposed use under the lease? Can the
proposed use be accommodated on freehold land? If not, why not?
• Is there a demonstrable public and economic benefit?
• Will the proposed use result in the loss of open space used by the general public? If so, to what
extent?
• Can the loss of free and unrestricted use and access by the public of the proposed lease area be
justified in the context of the area of the whole reserve?
• Is it proposed that new buildings will be constructed which may impact on adjoining reserved
Crown land?
• Would natural values be affected, for example, is the removal of
vegetation necessary?
• Is the use/development subject to a management plan approved by DSE?
• Does the proposal have community support and how has that support
been gauged?
• What type(s) of community consultation has been undertaken?
• Is the proposal consistent with other government policy objectives or legislation?
Through the above assessment, a clearer picture will begin to emerge about the suitability of the
proposal to a specific reserve and whether it is likely to have a detrimental impact. This may lead to
the conclusion in some cases that a lease proposal, while being consistent with the reservation
purpose, would have a detrimental impact. Alternatively, it may be concluded that while a lease
purpose is inconsistent with the reservation purpose, the use is assessed as being not detrimental.
Because of the various issues that can be peculiar to a specific reserve and lease proposal all
applications need to be assessed on a case by case basis.
Please note that it is the Minister (or his delegate where applicable) who must be satisfied that any
lease purpose is not substantially detrimental or not detrimental (dependent on the reservation
purpose as discussed previously) as part of the statutory lease approval process. DSE may make
recommendations regarding a proposed lease, but the final decision remains with the Minister (or
delegate).
The committee of management or trustees provide details of the assessment as part of the Approval in
Principle to lease process which is described in section 5.3.1 of the Leasing Policy for Crown Land in
Victoria 2010.
The following case studies are included to provide practical examples of reserve purposes, lease
purposes and consideration of the proposed use of the land.
Case Studies
Case study 1
Reserve Purpose
Lease Purpose
Consistent?
Detrimental?
Health and Social Welfare Purposes
Services for people with a disability including adult training,
respite care and opportunities for community volunteering.
Yes. The lease purpose aligns closely with the reservation purpose.
Unlikely to be detrimental however each application needs to be
assessed on a case by case basis.
Case study 2
Reserve Purpose
Lease Purpose
Consistent?
Detrimental?
Hospital Purposes
Florist Shop
No
While not consistent with the reservation purpose, a florist shop
on land reserved for hospital purposes can form part of the normal
operations of a hospital, providing services to the staff and broader
community as well as rental income to the hospital committee of
management. The assessment is likely to conclude that the
roposed use is not detrimental to the purpose of the reserve.
Case study 3
Reserve Purpose
Lease Purpose
Consistent?
Detrimental?
Public Recreation
Sporting and ancillary activities associated with a Football and
Cricket Club, including but not limited to: sporting events, training,
associated retail activities and office administration.
Yes
Possibly. While the purpose of the lease is consistent it might be
assessed as detrimental if it were determined the size and scale of
the capital works proposed under the lease would have a
detrimental impact on the use of the land for its reserved purpose
2.2.6 Other Crown Land (Reserves) Act 1978 leasing provisions
The CLRA contains a number of other leasing provisions. These include:
 Section 16(2) – leases for land vested in municipal councils
 Section 22(1) – leases for land used for horse racing and greyhound racing
 Section 23(1) – leases for land reserved for aerodrome purposes
Details of the legislative requirements associated with the granting of leases under these provisions
are contained in Appendix 1.
2.3 Land Act 1958
2.3.1 Section 134
The LA is the precursor of all Crown land legislation in Victoria. Its primary purpose is to provide for
the sale and occupation of unreserved Crown land in Victoria including leasing and licensing.
The most commonly used leasing provision in the LA is section 134. Leases made under section 134
are granted by the Minister alone. There is no provision for committees of management or trustees to
grant leases under the LA.
Section 134 allows the Minister to grant leases for any purpose except agriculture. Under normal
circumstances the term of a lease under section 134 is limited to a maximum of 21 years. However, in
some special circumstances, leases can be granted for longer periods, such as:
 up to 50 years maximum for commercial or industrial purposes;
 up to 99 years maximum for commercial or industrial purposes if the Minister is satisfied that
improvements are or will be of a substantial nature and value; and
 up to 99 years maximum where substantial existing improvements which are the property of the
Crown are involved.
Under the LA, the same requirements as in the CLRA regarding the preparation of a business case
apply to proposals for leases greater than 21 years.
2.3.2 Advertising
Section 135 of the LA provides that a lease of Crown land made under section 134 may be made by
private negotiation or be offered by public auction or tender. Under section 137, if a lease is granted
following private negotiation the tenant is required to publish a notice in the Government Gazette and
a local newspaper at least 14 days before the grant of the lease. The notice must specify the
particulars of the land the purpose and term of the lease and the name of the proposed tenant.
Under section 136, if the lease is offered by public auction or tender the Minister is required to give at
least 14 days notice in the Victoria Government Gazette and a local newspaper specifying the date of
the auction or closing of tenders, the particulars of the land and the purpose and term of the proposed
lease.
In addition, the requirements of the Leasing Policy for Crown land in Victoria must be addressed in
advertising offers to lease.
2.3.3 Section 134 – Terms and conditions
A lease under section 134 can be granted by the Minister “...subject to the conditions, covenants,
reservations, restrictions and exceptions which he thinks fit.”5 As with leases under the CLRA, DSE
policy is that a standard leasing agreement will be used for leases made under section 134.
A lease under section 134 may provide for:
 the payment of the whole or any part of the rental in advance and the refund of the whole or part
of the rental in the event of forfeiture (Section 137AAA); and
 a review of rental not more than once during each 12 month period of the lease (section 137AB).
The power to approve the terms and conditions of leases made under section 134 may be delegated
by the Minister for leases which have a term of up to a maximum term of 50 years. There are no
delegations with respect to the granting of leases for a term greater than 50 years under the LA.
2.4. Forests Act 1958
2.4.1 Section 51
The FA establishes a framework for the management, use and conservation of forests. It also contains
provisions for leasing and licensing of reserved forest (as defined in the FA) by the Minister. Leases
made under section 51 may only be granted by the Minister.
Under section 51(1) of the FA, the Minister may grant a lease of land encompassing reserved forest for
a term of up to 21 years for any purpose that the Secretary of DSE recommends. Generally, there are
5 Section 134(1) Land Act 1958
limited opportunities for leasing in State Forest and those leases which have been issued have been
for purposes such as tourism and telecommunications.
The FA contains similar provisions to those in the CLRA for long-term leasing. Under section 51(2) of
the FA the Minister may lease reserved forest for a term of more than 21 years but not more than 65
years, provided that the Minister is satisfied that:
 the proposed use, development, improvements or works that are specified in the lease are of a
substantial nature and of a value which justifies a longer term of lease; and
 the granting of a longer lease term is in the public interest.
As with other Crown land leases, the Leasing Policy for Crown Land in Victoria specifies that in order
for the Minister to assess any proposal to grant a lease under this section a business case must be
prepared.
2.4.2 Terms and conditions
A lease under section 51 is granted by the Minister “…subject to the covenants, terms and conditions
that are determined by the Minister and the payment of royalties as determined by the Minister”.6
The power to approve the terms and conditions of leases made under section 51 may be delegated by
the Minister where the lease term is up to a maximum term of 21 years. There is no delegation with
respect to the granting of leases for a term greater than 21 years under the FA.
2.5 Agreements to Lease
The CLRA, LA and FA provide for the making of “Agreements to Lease”.
Specifically:
 section 17D(1B) of the CLRA provides that trustees or committees of management, with the
approval in writing of the Minister, may enter into an Agreement to Lease for a lease granted
under section 17D(1). The Minister alone may also enter into an Agreement to Lease for leases of
up to 21 years
 section 17CA(6) of the CLRA provides that the Minister may enter into an Agreement to Lease
with respect to land leased under section 17CA. This applies to leases of up to 65 years.
 section 51(4) of the FA provides that the Minister may enter into an
Agreement to Lease.
 section 134(1A) of the LA provides that the Minister may enter into an Agreement to Lease.
An Agreement to Lease is a contractual agreement under which a Crown land manager, on condition
that all agreement pre-conditions are fulfilled within a set timeframe, undertakes to grant a lease to a
proposed tenant. Pre-conditions may include the lease proponent obtaining necessary finance for the
project, obtaining all planning approvals or carrying out a works program. In the event agreement
pre-conditions are not met within the time frame, the Crown land manager is not under an obligation
to enter into the lease and the agreement is at an end.
All of the relevant legislation relating to Agreements to Lease for Crown land provides that the period
for which an Agreement to Lease and lease can be issued cannot exceed, when added together, the
maximum lease term permitted under the relevant section.
6 Section 51 (3)(a) and (b)
2.6 Legislation that affects the grant of Crown land leases
In addition to the Acts which enable Crown land managers to issue a lease, a lease must be issued in
accordance with any other relevant laws.
The following is a summary of the main pieces of legislation which may impact on the grant of a lease.
2.6.1 Planning and Environment Act 1987 (Vic)
The Planning and Environment Act 1987 (P&E) establishes a framework for planning in the context
of the use, development and protection of land in Victoria. Crown land managers and tenants must
comply with relevant local planning schemes and obtain any required permits associated with the use
of leased premises.
If a planning scheme does require a permit for a use and/or development proposed under a lease a
permit must be obtained before the lease will be issued. This is to avoid uncertainty over the purpose
and conditions of a lease which may be found to be unlawful if planning approval is not obtained.
As the representative of the “owner” of the land being leased, DSE has a role under the P&E in
providing consent to an application for a planning permit. This capacity also applies to land managed
by committees of management. In addition, DSE may have a role as a referral authority under the
planning scheme regarding a range of matters such as native vegetation protection. In this capacity,
DSE may comment on the permit, require additional conditions or object to the permit being granted.
It is important to note that maintenance and minor works such as routine painting, gardening and
repairs are not usually within the definition of development works and do not normally require a
planning permit. However, DSE makes no representation in this regard and this should be confirmed
with the relevant planning authority.
2.6.2 Coastal Management Act 1995 (Vic)
The Coastal Management Act 1995 (CMA) applies to all coastal land in Victoria. The CMA defines
coastal Crown land as:
 any land reserved under the CLRA for the protection of the coastline;
 any Crown land within 200 metres of the high water mark of the coastal
waters of Victoria;
 any sea within the limits of Victoria;
 the seabed of the coastal waters of Victoria; and
 the seabed of any sea within the limits of Victoria.
Under the CMA, any proposed use and development of coastal Crown land (including a use and
development proposed under a lease) requires the consent of the Minister for Environment and
Climate Change (or delegate). The P&E and the CMA are linked. If a planning permit application is
made under the P&E and is referred to DSE as the referral authority on Crown land, the referred
application is deemed to be an application for consent under the Coastal Management Act 1995.
In deciding whether or not to consent to a permit application, the Minister will consider (amongst
other things) the proposal in context of the Victorian Coastal Strategy 2008. In particular, the Minister
must evaluate whether the proposed use and development takes into account:
 the environmental, social and economic implications of the proposal;
 the values of coastal resources; and
 the impacts of any proposed development on coastal values.
As with a permit under the P&E, a permit under the CMA must be obtained before the lease will be
issued.
2.6.3 Retail Leases Act 2003 (Vic)
The Retail Leases Act 2003 (RLA) applies to leases of retail premises and affects Crown land managers
who act as landlords. The RLA defines “retail premises” as “premises, not including any area intended
for use as a residence… used, or are to be used, wholly or predominantly for the sale or hire of goods
by retail or the retail provision of services”. In general, where the tenant’s goods or services are paid
for or used by members of the public the premises will be retail. It should be noted that this is not an
exhaustive definition. If there is any possibility that the RLA may apply the parties should seek
independent legal advice.
As a primary objective of Crown land leasing is to enhance the community’s use and enjoyment of
Crown land, many of the leases granted by land managers are for retail premises. These include leases
for cafes, kiosks, restaurants, caravan parks and many other premises where goods or services are
provided to the general public.
Since the introduction of the RLA a number of premises have been excluded from the requirements of
the RLA through ministerial determinations made under section 5 of the RLA. The most important of
these determinations to Crown land leasing came into effect in August 2004 and exempts leases
where:
 the term of the lease is 15 years or longer;
 there are no options for additional terms within the first 15 year term; and
 the lease imposes obligations on the tenant or any other person to carry out substantial work on
the premises or prevents the tenant from removing the leased improvements.
Land managers should obtain independent legal advice on the impact of the RLA on a proposed lease
and their responsibilities as landlord before starting negotiations with a prospective tenant.
2.6.4 Native Title Act 1993 (Cth)
Native title is the recognition by Australian law that Traditional Owners (as defined under the Native
Title Act 1993 (NTA)) have rights and interests to their land that come from traditional laws and
customs. The NTA establishes a mechanism for determining claims for rights and interest by
traditional owners.
In Victoria native title rights and interests may include rights to:
 access the area for traditional purposes, such as camping or to carry out ceremonies;
 visit and protect important places and sites;
 hunt, fish and gather food or traditional resources like water, wood or ochre; and
 teach law and custom on country.
Proposed activities or developments on Crown land that may affect native title are classed as “future
acts” under the NTA. A lease of Crown land is a future act and lease proposals and other future acts,
such as works programs, must be assessed under the future act regime to determine what, if any,
procedural rights apply to the proposal.
As part of the lease preparation process, DSE will arrange for a native title assessment to be
undertaken. The result of the assessment is communicated to all parties.
2.6.5 Traditional Owner Settlement Act 2010 (Vic)
The Traditional Owner Settlement Act 2010 (TOSA) provides the Victorian Government and Victorian
traditional owner groups an alternative legislative pathway to the NTA to settle native title claims and
to resolve issues of land justice.
The TOSA allows the Victorian government to make agreements with traditional owners to recognise
their relationship to land and provide for certain rights on Crown land and other benefits. By entering
into a settlement under the TOSA traditional owners agree to withdraw any native title claim they
may have and to not make a claim in the future.
Under the TOSA, the Victorian government and a Traditional Owner group may enter into an agreement
which recognizes traditional owner rights. The agreement comprises several parts, the one part
relevant to Crown land leasing being the “Land Use Activity Agreement” (LUAA) which governs
negotiation with traditional owners over activities on Crown land.
The LUAA acts as an alternative to the future act regime under the NTA and will come into effect if the
Government and the Traditional Owner group choose to make a LUAA under the TOSA.
Appendix A – Other Leasing Provisions
There are a number of other leasing provisions contained in the CLRA and LA which in some
circumstances may need to be used. The following is a summary of these provisions together with an
explanation of the leasing powers contained in the Land (Surf Life Saving Association) Act 1967. As
with other Crown land leases, the Leasing Policy for Crown land in Victoria applies to the granting of
leases under the following provisions.
1. Crown Land (Reserves) Act 1978
1.1 Section 14D – Incorporated Committees of Management
Under section 14D an incorporated committee of management may “grant leases of any part of the
reserved land for the purposes of providing facilities and services for the public”.7 The authority to
approve the grant of a lease under this section rests with the Governor in Council and not the Minister.
Because the grant of a lease under this section requires the approval of the Governor in Council rather
than the Minister or the Minister’s delegate, the process of granting the lease under this provision is
more lengthy and complex than the process made under section 17D.
Accordingly, the use of section 14D has largely been superseded by the use of section 17D.
1.2 Section 16 – Leasing of land vested in a municipal council
The vesting provisions contained in section 16 enable the Governor in Council, on the
recommendation of the Minister by Order published in the Government Gazette, to “...direct that any
land reserved under section 4 shall vest in any municipal council on trust for the purposes for which the
land has been reserved”.8
7 Section 14D(1) CLRA
8 Section 16(1) CLRA
Under section 16(2) the Governor in Council may, by the Order vesting the land in a council or by a
subsequent Order, empower the council to grant leases or licences for a term not exceeding 21 years.
Leases or licences granted under that section must be for the purposes of the reservation and can be
subject to such covenants and conditions as the council requires.
The Minister is required to recommend the granting of the lease to the Governor in Council. Therefore, a
lease proposal made under this section is scrutinised by DSE. The lease has no force and effect until it is
approved by the Governor in Council (section 16(7)).
A Council which has been vested land under section 16 can only lease land in accordance with the
powers contained in this section.
1.3 Section 17C – Leases to formalise existing occupations
The purpose of section 17C was to provide a mechanism to formalise existing occupations on reserved
land prior to 1984. Therefore it cannot apply to any new use. Generally, it would only be suitable in
cases where the existing lease made under section 17C had expired and a new lease on the same site
for the same purpose was being considered. Accordingly, the provision has very limited application.
Section 17C relates to the granting of leases that formalise habitual uses that existed prior to the
commencement of the Crown Land (Reserves) (Amendment) Act 1984, and a significant number of
committees of management did submit the necessary certification documents to DSE when the
provision was inserted into the Act in 1984. Leases under this section may only be granted where the
documentation by which the committee of management certified the habitual use is available.
From the perspective of process, the approval of a section 17C lease is very similar to that for a lease
issued under section 17D and requires the committee of management to submit an application to the
Minister seeking approval of:
 the grant of the lease; and
 the purpose for which the land has been habitually used (note the distinction between this
requirement and that in section 17D where the Minister approves the proposed purpose of the
lease).
The exceptions that restrict the application of 17D leases over various reserve categories also apply to
section 17C unless the granting of the proposed lease is consistent with an approved recommendation
of the Victorian Environment Assessment Council (VEAC) and its predecessors. The exception
however does not apply to the reservation purpose of public parks, gardens and ornamental
plantations unless the approved recommendation of VEAC refers to a coastal, regional or state park. In
cases where a habitual use of land reserved for public park or similar purpose has been certified in
accordance with the provisions of the Act, the lease process does not include parliamentary scrutiny.
1.4 Horse Racing, Aerodromes and Mineral Springs
There are a number of other rarely-used leasing and licensing provisions relating to horse racing,
aerodromes or landing grounds and mineral springs. In each case the authority to grant the lease or
licence rests with the Governor in Council and not the Minister. Therefore, the Minister does not have
any role in approving the grant and purpose of the lease.
However, the Minister may recommend the granting of the lease to the Governor in Council.
Accordingly, the recommendation process provides DSE with an opportunity to scrutinise proposals
as with other tenures made under the CLRA.
1.4.1 Section 22 – Horse racing
This section authorises the trustees or committee of management of any reserved land used for horse
racing (including trotting) or greyhound racing to grant leases or licences ‘...for the purposes of horse
racing or greyhound racing or purposes connected therewith (including the stabling and training of race
horses and the training of greyhounds).”9
The section stipulates that a lease or licence:–
 be subject to conditions, covenants, exceptions and reservations as the trustees or committee of
management determine;
 not exceed 21 years; and
 be subject to the approval of the Governor in Council.
Lease rental must be applied to the maintenance and improvement of the reserved land.
1.4.2 Section 23 – Aerodromes
A committee of management in respect of land reserved for an aerodrome or landing ground may
grant:
• leases up to a maximum term of 21 years for purposes including the provision of facilities and
services for the operation fuelling and maintenance of aircraft, for the comfort and convenience of
persons who patronise the aerodrome and for flying clubs and flying schools (Governor in Council
approval is required under this provision); and
• agreements to operate services and facilities for and consistent with purposes of the reservation
for a period not exceeding ten years.
1.4.3 Section 29A – Mineral Springs
A committee of management of a mineral springs reserve, or the Governor in Council where there is
no committee of management, may grant leases for:
 the collection, preparation and sale of mineral water; or
 the operation of mineral baths, spa therapy centres, kiosks or other amenities
up to a term of 21 years, or in the case where a certificate has been obtained from the Minister under
sub-section 4 of section 29A, for a period not exceeding 99 years.
The terms and conditions of a lease made under this section, if granted by a committee of
management, are subject to approval of the Governor in Council on the recommendation of the
Minister.
The granting of a lease under the above provisions is more lengthy and complex than under Section
17D which authorises the granting of leases for any purpose and usually under delegation.
Section 17D leases have largely superseded these provisions however in some circumstances these
provisions must be used. For example, where a council has been vested land under Section 16 of the
CLRA, it can only lease land in accordance with the powers contained in that section. Further, in
circumstances where trustees or a committee of management manage land reserved for horse or
greyhound racing and the trustees/committee wish to issue a lease or licence for these purposes, then
the lease or licence should be issued under section 22 rather than 17D CLRA.
9 Section 22(1) CLRA
2. Land Act 1958
2.1 Strata leases
The general leasing provisions contained in section 134 authorise the granting of leases in stratum.
A stratum of Crown land is a three dimensional space (i.e. with length, width and depth) of any shape
on, above or below (or any combination of these) the surface of Crown land. Power to grant leases
over a stratum of Crown land enables formalisation of an occupation of a three dimensional space for
such things as:–
 overhead/underground pedestrian walkways;
 vehicle tunnels;
 building overhangs; and
 overhead/underground pipelines.
Development in a stratum generates unique circumstances as, for example, the need to guarantee
support and preserve access by both the tenant and the public. These requirements are addressed in
the legislation.
Although a lease over a stratum of Crown land is granted under the general leasing provisions
contained in section 134, specific authority to do so, together with details of particular requirements
and conditions that must be met, are contained in section 134A.
A lease over a stratum of Crown land cannot be granted unless:–
 the local municipal council and any other responsible authority under the Planning and
Environment Act 1987 has been consulted; and
 the Minister is satisfied that:–
- the tenant can obtain reasonable access and use of the leased land;
- the lease does not interfere with the rights of the owner, tenant or licensee
of other land;
- necessary rights of support for the stratum and any structure are available;
- provision has been made for necessary services to or through the stratum for the use of the
stratum and other land; and
- the lease will not interfere with the use of roads by the public. (Section 134A (5) permits the
granting of a lease for a stratum of Crown land even though the land is a road.)
In determining whether the requirements for access and support have been met the Minister may
consider whether the proposed tenant is the owner, tenant or occupier of land required for access or
support, whether the tenant has sufficient rights over adjoining land to provide access or support and
the extent to which these rights can be enjoyed by the tenant’s successors in title.
3. Land (Surf Life Saving Association) Act 1967
The Land (Surf Life Saving Association) Act 1967 (LSLSA) is a stand-alone Act which came into
operation on 15 March 1967. It authorises the Governor in Council to grant leases to “The Surf Life
Saving Association of Australia Victorian State Centre” (now represented by Life Saving Victoria) as a
means of providing security of tenure for surf life saving club buildings established on any “ocean
foreshore reserve”.
For the purposes of the LSLSA an “ocean foreshore reserve” is defined as “Crown land abutting on or
adjacent to the coastline of Victoria (not being any part of the coastline which is within Port Phillip
Bay) which has been reserved either temporally or permanently for any purpose under section 4 of
the Crown Land (Reserves) Act 1978”.
If a Club intends to obtain a lease under the LSLSA, it will need to obtain an agreement from Life
Saving Victoria who can act on its behalf. Leases can only be granted direct to Life Saving Victoria
which can then enter into agreements with affiliated clubs.
A lease under the Act cannot be granted over an area in excess of 2023 square metres. The Act also
specifically provides that such a lease must be for:
“...the purposes of surf club activities .... and the provision of residential quarters for patrol members of
surf clubs affiliated with the association;”.10
Leases for other purposes, particularly commercial uses, cannot be granted under the LSLSA.
However, it may be appropriate for such a lease to be considered under Section 17D of the Crown
Land Reserves Act.
The LSLSA also provides that a lease:
 shall be at an annual rental of $10;
 cannot exceed 21 years;
 must provide for the payment of annual amounts to any committee of management of the reserve
in which the reserved land is located; and
 must contain “...such other covenants and conditions as the Governor in
Council thinks fit.”
Appendix B – Summary of Leasing Provisions11
Act
Section
Subject
Summary of Provisions
Crown
Land
(Reserves)
Act 1978
Section
14D
Leasing by
incorporated
committees
Provides that an incorporated
committee of management may,
with the consent of the Governor in
Council, grant leases for the
purposes of providing services and
facilities for a specific term not
exceeding 21 years. Approval to the
terms and conditions is by the
Minister.
Section
17C
Leases to
formalise
existing
occupations
Provides that trustees or
committees of management, or
where there are no trustees or
committee of management the
Minister, may grant leases for a
term of up to 21 years to formalise
occupations of Crown land prior to
10 Section 3(2) LSLA
11 Please note that this is a summary of the above legislation and is not intended to represent the full content of each section.
Act
Section
Subject
Summary of Provisions
the commencement of the Crown
Land (Reserves) (Amendment) Act
1984.
Section
17CA
Leasing for
between 21
and 65 years.
Enables the Minister to grant a lease
over land managed by trustees or a
committee of management, or
where there are no trustees or
committees of management, for a
term of more than 21 years but not
more than 65 years.
The powers under this section are
not delegated.
Section
17D (1B)
Agreement
to Lease.
Provides that trustees or
committees of management with the
approval in writing of the Minister
may enter into an Agreement to
Lease for a lease to be issued under
Section 17D(1) or (1A). (The
Minister alone may also enter into
an Agreement to Lease).
Section
17D(1) &
(1A)
Leasing for up
to 21 years.
Provides that trustees or
committees of management, or
where there are no trustees or
committees of management the
Minister, may issue a lease over all
classes of Crown land reserved
under section 4 of the CLRA for any
purpose (whether consistent with
the reserve purpose or not) for a
term of up to 21 years (subject to
meeting certain criteria).
The powers under this section are
currently delegated.
Section
17DA
Parliamentary
scrutiny of
certain
proposals.
Specifies certain categories of
reserved Crown land where there
are additional requirements
attached to the granting of a lease
under section 17D (1) or (1A).
Section
17D(4)
Covenants
and condition
s on leases.
Applies to leases granted under
section 17D and 17C and specifies
that a lease shall be subject to such
covenants, exceptions, reservation
and conditions as determined by the
trustees or committee of
management and approved by the
Minister.
Act
Section
Subject
Summary of Provisions
Section 16
Leases of land
vested in
municipal
councils.
Enables the Governor in Council, on
the recommendation of the Minister
by Order published in the
Government Gazette, to “...direct
that any land reserved under
section 4 shall vest in any
municipal council on trust for the
purposes for which the land has
been reserved.”
Under section 16(2) the Governor in
Council can, by the Order vesting
the land in a council or by a
subsequent Order, empower the
council to grant leases or licences
for a term not exceeding 21 years.
Leases or licences granted under
that section must be for the
purposes of the reservation and can
be subject to such covenants and
conditions as the council thinks fit.
A lease granted under this section
must be approved by the Governor
in Council.
Section 22
Leases of
land used
for horse
racing and
greyhound
racing.
Trustees or committees of
management may grant leases or
licences for land reserved for horse
racing (including trotting) or
greyhound racing up to a maximum
term of 21 years.
A lease or licence granted under this
section must be approved by the
Governor in Council.
Section 23
Leases of
land reserved
for
aerodrome
purposes.
A committee of management in
respect of land reserved for an
aerodrome or landing ground may
grant:
leases up to a maximum term of 21
years for purposes including the
provision of facilities and services for
the operation fuelling and
maintenance of aircraft, for the
comfort and convenience of persons
who patronise the aerodrome and
for flying clubs and flying schools;
and
agreements to operate services and
facilities for and consistent with the
purposes of the reservation for a
period not exceeding ten years.
Act
Section
Subject
Summary of Provisions
A lease granted under this section
must be approved by the Governor
in Council
Section
29A
Land Act
1958
Leasing
of mineral
springs
reserves.
A committee of management of a
mineral springs reserve, or where
there is no committee of
management, the Governor in Council
may grant leases for:
the collection, preparation and sale
of mineral water; or
the operation of mineral baths,
spa therapy centres, kiosks or
other amenities
up to a term of 21 years or in the case
where a certificate has been obtained
from the Minister under sub-section 4
of section 29A for a period not
exceeding 99 years.
The terms and conditions of a lease
made under this section, if granted by
a committee of management, are
subject to approval of the Governor in
Council on the recommendation of
the Minister.
Section 134 Leasing of
(1)
Crown land
for nonagricultural
purposes.
The Minister may grant leases of
unreserved Crown land for any
purpose (except for the purposes of
agriculture) at the rent and subject
to the conditions, covenants,
reservations, restrictions and
exceptions which he thinks fit.
A lease under section 134 may
provide for –
the payment of the whole or any part
of the rental in advance and the
refund of the whole or part of the
rental in the event of forfeiture
(Section 137AAA); and
a review of rental not more than
once during each 12 month period of
the lease (section 137AB).
Section
134A
Leasing of
strata of
Crown land
Enables the Minister to grant a lease
under section 134 in stratum.
Section
134(1A)
Agreement
to Lease.
Provides that the Minister may enter
into an Agreement to Lease for
Crown land for a lease granted under
section 134.
Act
Section
Subject
Summary of Provisions
Section 135 Public
auction/tende
r of private
negotiation.
The Minister may lease land by
offering the right to lease by public
auction or public tender or by
private negotiation.
Section 137 Advertisement
of privately
negotiated
leases.
Where the Minister leases Crown
land by private negotiation, the
proposed tenant shall, not less than
fourteen days before the day on
which the lease is to be granted,
publish in the Government Gazette
and in a newspaper circulating in the
district in which the land is situated,
a notice specifying –
the particulars of the land which is to
be leased;
the purpose and term of the
proposed lease; and
the name of the proposed tenant.
Section
137AA (1)
Leases up to
21 years.
Subject to section 137AA, the term of
a lease granted under subdivision
134 shall not exceed 21 years.
The powers relating to the approval
of terms and conditions of a lease up
to 21 years are currently delegated.
Section
137AA (2)
Leases over 21 The term of a lease granted for
years and up
commercial or industrial purposes
to 50 years.
may exceed 21 years but shall not
exceed 50 years.
The powers relating to the approval
of terms and conditions of a lease up
to 50 years are currently delegated.
Section
137AA (3)
Leases over 50 The Minister may grant a lease of
years and up
land for commercial or industrial
to 99 years.
purposes under this subdivision for
a term of more than 50 years but not
more than 99 years if the Minister is
satisfied that –
a building or structure erected or to
be erected on the land; or
an improvement made or to be made
on or to the land;
is of a substantial nature and of a
value which justifies a lease term
exceeding 50 years.
The powers relating to the approval
of terms and conditions of leases for
terms of over 50 years are not
delegated.
Act
Forests
Act 1958
Section
Subject
Summary of Provisions
Section
137AA (4)
Leases of
substantial
Crown
improvements
.
The Minister may grant a lease on
any Crown land of any existing
improvement which is of a
substantial nature and is the
property of the Crown for a term not
exceeding 99 years.
The powers relating to the approval
of terms and conditions of leases for
terms of over 50 years are not
delegated.
Section 51
Leasing of
land in
reserved
forest.
A lease under section 51 granted by
the Minister “…is subject to the
covenants, terms and conditions
that are determined by the Minister
and the payment of royalties as
determined by the Minister”.
Leases made under this section are
granted by the Minister alone –
Committees of management and
trustees are not able to grant leases.
Section 51
(1)
Leasing of
land in
reserved
forest for up
to 21 years.
The Minister may lease reserved
forest for a term of up to 21 years,
for any purpose that the Secretary
of DSE recommends.
Leases issued are generally for
purposes such as tourism and
telecommunications.
The power to approve leases
is currently delegated.
Section 51
(2)
Leasing of land
in reserved
forest between
22 and 65
years.
The Minister may lease reserved
forest for a term of more than 21
years, but not more than 65 years, if
the Minister is satisfied that –
the proposed use, development,
improvements or works that are
specified in the lease are of a
substantial nature and of a value
which justifies a longer term of
lease; and
the granting of a longer term lease is
in the public interest.
The powers relating to the approval
of leases are not delegated.
Section 51
(4)
Agreement
to Lease.
Provides that the Minister may enter
into an Agreement to Lease for a
lease granted under section 51.
Published by the Victorian Government
Department of Sustainability and Environment
Melbourne, May 2012.
© The State of Victoria Department of Sustainability and Environment 2012
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