National Parks and Wildlife Amendment (Conservation Covenants) Act 2002
An Act to amend the National Parks and Wildlife Act 1970
[Royal Assent 25 June 2002]
Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
1Short titleThis Act may be cited as the National Parks and Wildlife Amendment (Conservation Covenants) Act 2002 . 2CommencementThis Act commences on the day on which the Forest Practices Amendment (Conservation Covenants) Act 2002 commences. 3Principal ActIn this Act, the National Parks and Wildlife Act 1970 is referred to as the Principal Act. 4Section 25A amended (Management agreement for private land) Section 25A of the Principal Act is amended as follows: (a) by omitting subsection (5) and substituting the following subsection: (5) An agreement under this section may include provision for a conservation covenant under Part VA . (b) by omitting subsections (6) , (7) , (8) and (9) . 5Part VA, Division 1: Heading inserted Part VA of the Principal Act is amended by inserting the following heading before section 37A : Interpretation of Part 6Section 37A amended (Interpretation of Part) Section 37A of the Principal Act is amended as follows: (a) by omitting the definition of compensation ; (b) by omitting "Part" from the definition of conservation compensation committee and substituting " Division 4 "; (c) by omitting the definition of conservation covenant and substituting the following definition: conservation covenant means a conservation covenant entered into under this Part, and includes any variation of the covenant; 7Part VA, Division 2: Heading inserted Part VA of the Principal Act is amended by inserting the following heading after section 37A : Conservation covenants generally 8Section 37B substituted Section 37B of the Principal Act is repealed and the following section is substituted: 37BMinister may enter into conservation covenants (1) The Minister on behalf of the Crown may enter into a conservation covenant with any landowner if the Minister considers it necessary or desirable to do so for a conservation purpose. (2) A conservation covenant may contain such covenants and other provisions as the Minister and the landowner agree. (3) Without limiting the generality of subsection (2) , a conservation covenant may contain – (a) a requirement for a management plan or management conditions for the servient land; and (b) provisions relating to the payment of compensation or the provision of financial or other assistance to the landowner; and (c) provisions relating to the repayment of money or, if applicable, the waiver of entitlements to statutory compensation. (4) A conservation covenant may be a restrictive covenant or a positive covenant. (5) A conservation covenant – (a) runs with the servient land as if it were a covenant to which section 102(2) of the Land Titles Act 1980 applies; and (b) is enforceable between the parties to it, and any person deriving title under any such party, as if the covenant were entered into by a fee simple owner of land for the benefit of adjacent land held by the Crown in fee simple that was capable of being benefited by the covenant and as if that adjacent land continued to be so held by the Crown. 9Sections 37BA , 37BB , 37BC and 37BD insertedAfter section 37B of the Principal Act , the following sections are inserted in Division 2: 37BAVariation and discharge of conservation covenants (1) Subject to this section, the Minister on behalf of the Crown may vary or discharge a conservation covenant at any time by agreement with the owner of the land that is subject to the covenant. (2) If a conservation covenant so provides, it is not capable of being varied or discharged without the prior consent of the Crown in the right of the Commonwealth. (3) If the land subject to a conservation covenant is a private nature reserve, the covenant is not capable of being varied in a way that might threaten the natural or cultural values of the land, or of being discharged, until the land ceases to be or form part of a private nature reserve. (4) If the landowner has received compensation or financial payments from the Crown under this Part or any other enactment in connection with a conservation covenant, it is not capable of being varied or discharged unless the Minister, by means of a notice published in the Gazette, has given at least 30 days’ notice of his or her intention to vary or discharge the covenant. 37BBForm of conservation covenants Notwithstanding the provisions of the Land Titles Act 1980 and Registration of Deeds Act 1935 , a conservation covenant, and any variation or discharge of a conservation covenant, may be in such form as the Recorder approves. 37BCRegistration of conservation covenants (1) As soon as practicable after entering into a conservation covenant or executing a variation of a conservation covenant, the Minister must lodge with the Recorder – (a) an executed copy of the covenant or variation; and (b) a copy of any management plan or management conditions referred to in the covenant or variation; and (c) particulars of title to the servient land. (2) As soon as practicable after executing a discharge of a conservation covenant, the Minister must lodge an executed copy of the discharge with the Recorder. (3) The Minister must lodge with the Recorder, as soon as practicable after it is approved, a management plan approved under section 19(1) that, in whole or in part, rescinds, replaces or alters any management plan lodged under subsection (1) , together with particulars of title to the servient land. (4) Subject to the provisions of the Land Titles Act 1980 , the Recorder must register on the folio of the Register constituting the title to the servient land the following: (a) each conservation covenant, and each variation or discharge of a conservation covenant, lodged under subsection (1) or (2) ; (b) any management plan lodged under subsection (1) and any management plan approved under section 19(1) that rescinds, replaces or alters that original management plan. (5) If the whole or any part of the servient land is not under the Land Titles Act 1980 , the relevant conservation covenant may be dealt with by the Recorder in the same manner as if it were a conveyance on sale within the meaning of section 17(1)(a) of that Act. (6) The Recorder may, for the purposes of subsection (5) – (a) require the Minister to deposit with the Recorder a plan of any land or part of any land that is subject to a conservation covenant or to which a management plan relates; and (b) further require that the plan be made from actual survey and certified as correct by a surveyor who is registered and certificated under the Land Surveyors Act 1909 . 37BDCovenants come into force on registration (1) A conservation covenant or a variation of a conservation covenant comes into force on the day on which the covenant or variation is registered by the Recorder. (2) A conservation covenant ceases to be enforceable on the day on which a discharge of the covenant is registered by the Recorder. 10Part VA, Division 3 insertedAfter section 37B of the Principal Act , the following Division is inserted in Part VA: Division 3Covenants arising from refused private timber reserve applications 37BECovenants for protection of natural or cultural values (1) The Minister on behalf of the Crown may enter into a conservation covenant with a landowner pursuant to and for the purposes of section 16(3) of the Forest Practices Act 1985 . (2) Divisions 2 and 5 have the same application to a conservation covenant entered into under this Division, and any variation or discharge of such a covenant, as they have to any other conservation covenant entered into under this Part. 11Part VA, Division 4: Heading inserted Part VA of the Principal Act is amended by inserting the following heading after section 37B : Covenants arising from forest practices plan applications 12Section 37BF insertedAfter section 37B of the Principal Act , the following section is inserted in Division 4: 37BFCovenants with affected owners (1) The Minister on behalf of the Crown may enter into a conservation covenant with an affected owner who applies for compensation under this Division. (2) Divisions 2 and 5 have the same application to a conservation covenant entered into under this Division, and any variation or discharge of such a covenant, as they have to any other conservation covenant entered into under this Part. (3) If the Minister and an affected owner fail to agree on the provisions of a conservation covenant within 6 months of commencing negotiations on the covenant, the provisions are to be determined by an arbitrator in accordance with the Commercial Arbitration Act 1986 . (4) The determination of an arbitrator under subsection (3) is final and binding on the Minister and the affected owner. 13Section 37D amended (Assessment of compensation) Section 37D of the Principal Act is amended as follows: (a) by omitting from subsection (1) "Part" and substituting "Division"; (b) by omitting from subsection (2) "Part" and substituting "Division". 14Section 37E amended (Payment of compensation) Section 37E of the Principal Act is amended as follows: (a) by inserting in subsection (1) "under this Division" after "covenant"; (b) by inserting in subsection (2) "under this Division" after "conservation covenant"; (c) by inserting in subsection (3) "under this Division" after "conservation covenant"; (d) by omitting from subsection (3) "this Part" and substituting "the covenant". 15Section 37F amended (Effect of failure to pay compensation) Section 37F(1) of the Principal Act is amended as follows: (a) by omitting from paragraph (b) " section 37B (2) (a) or 37D (3) " and substituting " section 37D(3) "; (b) by inserting in paragraph (c) "under this Division" after "conservation covenant". 16Sections 37G , 37H and 37I repealed Sections 37G , 37H and 37I of the Principal Act are repealed. 17Part VA, Division 5: Heading inserted Part VA of the Principal Act is amended by inserting the following heading after section 37F : Provisions of general application [Second reading presentation speech made in:
House of Assembly on 24 APRIL 2002
Legislative Council on 23 MAY 2002]