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Lord Howe Land Tenure - Part 1

01-Nov-2013

Land tenure is a common discussion with our guests. How do you buy property? Do islanders get priority? Do you own the land? The following are some notes we prepared to help a discussion among islanders about a major land tenure review commissioned by the NSW Government. Will you be able to buy land and move to Lord Howe anytime soon? Probably not, so just come for a holiday.

Land Tenure and Allocation on Lord Howe Island

The NSW Government has appointed the Hon. Ken Handley AO QC to undertake a comprehensive review of the current arrangements for land allocation and tenure on Lord Howe Island. As part of the review, Justice Handley will consider options for new land allocation and forms of tenure, including options for increasing supply of land and improving economic sustainability.

We’ve prepared a summary of the current arrangements for land tenure and allocation on Lord Howe Island. It is intended to help explain the issues in context and make an informed submission to the review. Land tenure arrangements are set out in the Lord Howe Island Act 1953 (NSW) (LHI Act), while land allocation is mainly dealt with in the Lord Howe Island Local Environmental Plan 2010 (NSW) (LEP).

Justice Handley is highly qualified and extremely knowledgeable about the different systems of property title available in NSW. In making submissions, it would be best to focus on the practical problems or difficulties which we face at Lord Howe as a result of the current land allocation and tenure arrangements, rather than putting forward the ‘answers’. Justice Handley will also be interested to receive feedback about how the current arrangements operate in practice.


Land tenure

Before 1953, the LHI Board was made up of senior public servants, based in Sydney, advised by a committee of islanders. The committee had no decision making power. All land was owned by the Crown, which gave the Board a Permissive Occupancy over the whole island. The Board then granted smaller Permissive Occupancies to islanders. Development was limited because islanders had no certainty about land tenure in the future and because the land could not be mortgaged.

The current system of land tenure was created by the LHI Act. Unlike comparable small communities in NSW, there is no freehold title. Further, there have been no significant changes to land tenure since 1953. Under the LHI Act, ownership of the island is vested in the Crown (s16). The Minister has the power to dedicate Crown lands for public purposes (s19). The LHI Permanent Park Preserve is an example of an area that has been dedicated for the purpose of preserving flora and fauna on the island. The Minister may lease vacant Crown land to the Commonwealth (s19A). The Minister may also grant leases in perpetuity for residence to islanders, and perpetual leaseholders can also be granted special leases for agriculture and permissive occupancies for other activities.

Separately from the Lord Howe Land Review, the State Government has recently reviewed Crown Land legislation with the aim of improving the management of Crown Land and simplifying the 8 pieces of legislation dating from around 1890 into one Act. For more information see the Crown Lands Legislation White Paper dated 4 February 2014. The majority of Crown Land in NSW (around 88%) is in the Western Division. Most of the Western Division is classified as a semi-arid rangeland that is mainly used for grazing. Notwithstanding this, Western Lands leases granted for residential or business and can currently be converted to freehold. Leases granted for agriculture or cultivation can also be converted, but only where the landscape has been significantly altered. The White Paper contains a proposal that lessees of Western Lands grazing leases that have current cultivation consents could also apply for freehold conversion in the future.

By comparison with the majority of Crown Land lessees in NSW, islanders have no right to convert leases for residential (or commercial) purposes to freehold, nor do they have comparable security on agricultural leases.

Questions: Should all of Lord Howe Island (including our homes) be Crown Land? Should islanders have at least the same rights as other Crown lessees to apply for conversion to freehold? Should islanders who have special leases have at least the same tenure as graziers in the Western Division (i.e. perpetual leases for grazing or cultivation)?

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