National Parks and Wildlife Amendment (Visitors and Tourists) Act 2010 (NSW)

An Act to amend the National Parks and Wildlife Act 1974 in relation to the sustainable visitor and tourist use and enjoyment of lands reserved under that Act; and for other purposes.

1Name of Act

This Act is the National Parks and Wildlife Amendment (Visitors and Tourists) Act 2010.

2Commencement

This Act commences on a day or days to be appointed by proclamation.

Schedule 1Amendment of National Parks and Wildlife Act 1974 No 80[1]Section 5 Definitions

Insert in alphabetical order in section 5 (1):

sustainable, in relation to visitor or tourist use and enjoyment of land, means sustainable within the meaning of the principles of ecologically sustainable development.

[2]Sections 5 (5), 7 (2) (d), 12 (f), 30 (f) and 72AA (1) (u), clause 1 (2) (f) of Schedule 7 and clause 1 (2) (g) of Schedule 8

Insert “or tourist” after “visitor” wherever occurring.

[3]Section 21 Delegation

Insert after section 21 (1) (c):

(c1)

a state conservation area trust or a regional park trust, or

[4]Sections 30E (1) and (2) (e), 30F (2) (c), 30G (1) (b) and (2) (d), 30H (2) (e) and 30I (2) (g)

Omit “sustainable visitor use and enjoyment” wherever occurring.

Insert instead “sustainable visitor or tourist use and enjoyment”.

[5]Section 30K Aboriginal areas

Insert after section 30K (2) (f):

(g)

provision for sustainable visitor or tourist use and enjoyment that is compatible with the Aboriginal area’s natural and cultural values and the cultural values of the Aboriginal people,

(h)

provision for sustainable use (including adaptive reuse) of any buildings or structures or modified natural areas having regard to the Aboriginal area’s natural and cultural values and the cultural values of the Aboriginal people.

[6]Section 47GC Power to grant leases and licences and to purchase land

Omit the section.

[7]Section 47MA Reservation of land in state conservation area as national park or nature reserve

Insert after section 47MA (3):

(4)

A plan of management that applied to land immediately before its reservation as a national park or nature reserve (or as part of a national park or nature reserve) under subsection (1) continues to apply, to the extent to which it applied previously, to the land before that reservation, as a plan of management for the purposes of this Act.

(5)

A plan of management to which subsection (4) applies may be amended, altered, cancelled or substituted in accordance with Part 5.

[8]Section 47U Power to grant leases and licences and to purchase land

Omit the section.

[9]Section 72AA Objectives and content of plans of management

Omit “, enjoyment” from section 72AA (1) (l).

[10]Section 72AA (1) (l)

Omit “use”. Insert instead “or tourist use and enjoyment of the reserved land”.

[11]Section 72AA (5A)

Omit “sections 151 (4A) and 151B (10A)”. Insert instead “section 151D (1)”.

[12]Section 72AA (6) (a)

Omit the paragraph.

[13]Section 73B Adoption, amendment and cancellation of plans of management

Insert at the end of section 73B (7):

However, in relation to an amendment or alteration of a plan of management, the reference in section 73A (2) (c) (as applied) to “90 days” is taken to be a reference to “45 days”.

[14]Section 81A

Omit the section. Insert instead:

81ALeases, licences and easements subject to plan of management

Without limiting the generality of this Part, this Part has effect in respect of any part of a national park, historic site, nature reserve, karst conservation reserve, state conservation area, regional park or Aboriginal area that is the subject of a lease, licence or easement granted under Part 12.

[15]Sections 138 (1) (b) (ii) and 144A (1) (b)

Omit “section 151 (2)” wherever occurring. Insert instead “section 149 (4)”.

[16]Section 149 Disposal of property

Insert after section 149 (3):

(4)

Without limiting subsection (1), the Minister may:

• (a)

  for any purpose specified in section 146 (1) (a), (b) or (c) grant a lease of, or a licence with respect to, lands acquired or occupied under section 146 (1), or

• (b)

  for use in connection with the administration of this Act grant a lease of, or a licence with respect to, lands referred to in section 146 (2).

[17]Part 12, Divisions 1–3

Omit section 151. Insert instead:

Division 1Preliminary150ADefinitions

In this Part:

existing building or structure means:

• (a)

  in relation to land reserved under this Act before the commencement of this section, a building or structure in existence on the land at that commencement, or

• (b)

  in relation to land that becomes reserved under this Act on or after the commencement of this section, a building or structure in existence on the land at the time of that reservation.

reserve means a national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve or Aboriginal area (and includes any such land reserved under Part 4A).

Division 2Granting of leases and licences151Leases and licences of reserved lands(1)

The Minister may grant a lease or licence of land within a reserve (including any buildings or structures on the land).

(2)

A lease or licence granted under this section may authorise any one or more of the following:

• (a)

  the exclusive use of the land, buildings and structures concerned,

• (b)

  the erection of a new building or structure on the land concerned,

• (c)

  the modification of an existing building or structure on the land concerned.

(3)

Without limiting section 2A, in determining whether to grant a lease or licence of land under this section, the Minister is to give effect to the objects of this Act.

Note—

Section 2A (1) (d) provides that it is an object of this Act that the management of reserved land be in accordance with the applicable management principles.

Section 81A makes it clear that Part 5 (Plans of management) has effect in any part of a reserve that is the subject of a lease or licence under this Part. Section 151C also provides that it is a condition of every lease or licence of land granted under this section that the lessee or licensee must ensure that the provisions of this Act, the regulations and the relevant plan of management are complied with.

151APurposes for which a lease or licence may be granted(1)

A lease or licence of land (other than a nature reserve) may only be granted under section 151 for one or more of the following purposes:

• (a)General purposes
  • (i)

    the provision of buildings for use in connection with any of the following:

    • (A)

      the protection or preservation of land from fire,

    • (B)

      the provision of services relating to the work of rendering first aid to, and the transport of, sick and injured persons,

    • (C)

      a surf life-saving club,

    • (D)

      any purpose of a similar nature,

  • (ii)

    the provision of research facilities or activities for natural heritage (including natural phenomena) and cultural heritage,

  • (iii)

    to enable activities of a recreational, educational or cultural nature to be carried out and the provision of facilities for that purpose,

  • (iv)

    to enable sporting activities to be carried out and the provision of temporary facilities for that purpose,

  • (v)

    to enable activities for natural heritage management, cultural heritage management, park management or fire management to be carried out and the provision of facilities for that purpose,

  • (vi)

    to enable Aboriginal cultural activities to be carried out and the provision of facilities for that purpose,

  • (vii)

    subject to section 151I (Restrictions on grant of lease for residential accommodation), the provision of residential accommodation,

  • (viii)

    any other purpose that is:

    • (A)

      consistent with the relevant management principles for the land set out in Division 2 of Part 4, and

    • (B)

      identified in the relevant plan of management as being a permissible purpose for the land concerned,

• (b)Purposes related to the sustainable visitor or tourist use and enjoyment of reserved land
  • (i)

    the provision of accommodation for visitors and tourists,

  • (ii)

    the provision of the following facilities if the facilities are ancillary to accommodation facilities for visitors or tourists:

    • (A)

      retail outlets,

    • (B)

      facilities to enable the hosting of conferences or functions,

    • (C)

      facilities to enable activities of a sporting nature to be carried out,

  • (iii)

    the provision of facilities and amenities for visitors and tourists, including the following facilities:

    • (A)

      information centres and booking outlets,

    • (B)

      restaurants, cafes, kiosks and other food outlets,

  • (iv)

    the provision of the following facilities if the facilities are ancillary to facilities and amenities for visitors and tourists:

    • (A)

      retail outlets,

    • (B)

      facilities to enable the hosting of conferences or functions,

• (c)Adaptive reuse and use of modified natural areas

  any purpose that enables the adaptive reuse of an existing building or structure or the use of a modified natural area.

  Note—

  See section 5 (1) for the definitions of “adaptive reuse” and “modified natural area”.

(2)

A lease or licence of land within a nature reserve may only be granted under section 151 for a purpose that is consistent with the relevant management principles for nature reserves set out in section 30J.

(3)

In addition to the purposes set out in subsection (1), a lease or licence of land (other than a nature reserve) may be granted under section 151 to enable any activity or development in a ski resort area (within the meaning of Part 8A of Schedule 6 to the Environmental Planning and Assessment Act 1979) that is permitted by an environmental planning instrument specifically applying to ski resort areas.

(4)

A licence of land under section 151 for the purpose of a conference, function or event must not be granted if the licence authorises the use of the land for a cumulative period that exceeds 3 months in any 12 month period.

(5)

The Minister must not grant a lease of land under section 151 for any purpose referred to in subsection (1) (b) that authorises the erection of a new building or structure on the land unless:

• (a)

  the purpose for which the lease is to be granted is identified in the relevant plan of management as being a permissible purpose for the land concerned, and

• (b)

  the general location for any such new building or structure is identified in that plan of management.

151BMatters that Minister must consider before granting lease or licence(1)

The Minister must not grant a lease or licence of land (including any buildings or structures on the land) under section 151 unless the Minister is satisfied that:

• (a)

  the purpose for which the lease or licence is granted is compatible with the natural and cultural values of:

  • (i)

    the land to be leased or licensed, and

  • (ii)

    land reserved under this Act in the vicinity of that land, and

• (b)

  the lease or licence provides for the sustainable and efficient use of natural resources, energy and water, and

• (c)

  in relation to any lease or licence that authorises the erection of a new building or structure on the land or the modification of an existing building or structure on the land—the authorised development or activity is appropriate in relation to the built form and scale of the building or structure, including its bulk, height, footprint, setbacks and density.

(2)

In determining whether the Minister is satisfied in relation to any of the matters referred to in subsection (1), the Minister is to have regard to:

• (a)

  the assessment criteria adopted by the Director-General under subsection (3), and

• (b)

  in relation to a proposal to grant a lease of land—a report prepared by the Director-General that addresses the relevant matters referred to in subsection (1) in light of those assessment criteria.

(3)

The Director-General:

• (a)

  must adopt assessment criteria relating to the matters referred to in subsection (1), and

• (b)

  may vary those criteria, but only if:

  • (i)

    the Director-General has consulted with the Council, and

  • (ii)

    the Council has advised the Director-General that the proposed variation, on balance, improves or maintains the environmental outcomes provided for under the existing criteria.

(4)

The assessment criteria are to be published on the Department’s website.

(5)

This section does not apply to the following:

• (a)

  a lease or licence of land within a ski resort area within the meaning of Part 8A of Schedule 6 to the Environmental Planning and Assessment Act 1979,

• (b)

  a renewal of a lease of land granted in accordance with an option to renew a current lease,

• (c)

  a renewal of a lease of land (otherwise than in accordance with an option to renew), but only if:

  • (i)

    the renewed lease is on substantially the same terms and conditions as the current lease, and

  • (ii)

    the term of the lease (including any options to renew) does not exceed 10 years, and

  • (iii)

    there have been no significant breaches of the current lease, this Act or the regulations during the term of the current lease.

151CLeases and licences subject to conditions(1)

A lease or licence under section 149, 151 or 151H may be granted subject to conditions.

(2)

It is a condition of every lease or licence of land granted under section 151 that the lessee or licensee must ensure that the provisions of this Act, the regulations and the plan of management for the reserve in which the land is situated are complied with in relation to the land.

151DSpecial provisions relating to leases and licences of karst conservation reserves(1)

The Minister is to include in every lease or licence of land within a karst conservation reserve granted under section 151 a condition requiring:

• (a)

  the lessee or licensee (in relation to the lands leased or licensed) to comply with the relevant environmental performance standards set out in the plan of management for the reserve, and

• (b)

  the environmental performance of the lessee or licensee (in relation to the lands leased or licensed) to be measured against the relevant environmental performance indicators set out in that plan of management.

(2)

The Director-General is (in relation to a lease or licence to which subsection (1) applies):

• (a)

  to monitor:

  • (i)

    the lessee’s or licensee’s compliance with the relevant environmental performance standards set out in the relevant plan of management, and

  • (ii)

    the lessee’s or licensee’s environmental performance as measured against the relevant environmental performance indicators set out in that plan of management, and

• (b)

  to report on the results of that monitoring, annually, by:

  • (i)

    recording the results in the register kept under section 151J, and

  • (ii)

    placing the results on the Department’s website.

151ESpecial provisions relating to leases and licences of Aboriginal land(1)

The Minister may only grant a lease or licence under section 151 of land reserved under Part 4A with the concurrence of the relevant board of management for the land concerned.

(2)

The Minister must not grant a lease or licence under section 151 of land reserved under Part 4A contrary to the terms of the lease of the land to the Minister under that Part.

Division 3Miscellaneous151FPublic consultation regarding grant of leases and licences(1)

Before granting a lease or licence under section 151 or 151H, the Minister must cause notice of the proposed lease or licence to be published:

• (a)

  in a newspaper circulating in the area in which the land is located and on the Department’s website if the proposed lease or licence:

  • (i)

    is for a purpose for which the land (including any buildings or structures on the land) has previously not been used or occupied, or

  • (ii)

    authorises the erection of a temporary building or structure on the land concerned, and

• (b)

  in a newspaper circulating throughout New South Wales, in a newspaper circulating in the area in which the land is located and on the Department’s website if the proposed lease or licence:

  • (i)

    authorises the erection of a new permanent building or structure on the land concerned, or

  • (ii)

    authorises a significant modification of an existing building or structure on the land concerned or any other significant permanent physical change to the land concerned.

(2)

A notice under subsection (1) must contain the following:

• (a)

  sufficient information to identify the land concerned,

• (b)

  the purposes for which the land and any building or structure on the land is proposed to be used,

• (c)

  the term of the proposed lease or licence (taking into account any option to renew),

• (d)

  the name of the person to whom the lease or licence is proposed to be granted,

• (e)

  the closing date for making submissions on the proposal, being a date not earlier than:

  • (i)

    in relation to a notice under subsection (1) (a)—14 days after the date on which the notice was first published, or

  • (ii)

    in relation to a notice under subsection (1) (b)—28 days after the date on which the notice was first published,

• (f)

  the address to which submissions are to be sent,

• (g)

  any other information that the Minister considers relevant to the consideration of the proposal.

(3)

The Minister, on request, is to provide such further information, as the Minister considers reasonably practicable, describing the proposed lease or licence. The information provided must not include any commercial in confidence information.

Note—

Further information provided under this subsection could include drawings or diagrams describing the proposed lease or licence.

(4)

The Minister may hold a public hearing into any proposed lease or licence under this Part if the Minister thinks it appropriate to do so.

(5)

Before determining whether or not to grant a lease or licence under section 151 or 151H, the Minister must take into account:

• (a)

  any submissions received before the notified closing date for submissions under subsection (2) (e), and

• (b)

  if relevant, any report from, or submissions received at, a public hearing.

(6)

This section does not apply to a proposal to grant a lease or licence of land if:

• (a)

  the proposed lease or licence authorises the land concerned to be used or occupied for a total period that does not exceed 31 days, or

• (b)

  the proposed lease or licence relates to land reserved under Part 4A and authorises the land concerned to be used or occupied for any community development purpose prescribed by the regulations under section 72AA (6) (c), or

• (c)

  within the 2 years prior to the proposed grant of the lease or licence, a public consultation has occurred in relation to development or an activity that is substantially the same as the use of the land that is to be authorised by the proposed lease or licence.

  Note—

  For example, a public consultation may have been undertaken under the Environmental Planning and Assessment Act 1979 for approval or consent to the erection and use of a building for a cafe. In that case, public consultation is not necessary under this section in relation to a proposed lease of the building to operate that cafe.

151GReference of certain proposed leases and licences for advice(1)

The Minister:

• (a)

  must refer a proposal to lease or licence land under section 151 to the Council for advice if the proposed lease or licence:

  • (i)

    authorises the erection of a new permanent building or structure on the land concerned, or

  • (ii)

    authorises a significant modification of an existing building or structure on the land concerned or any other significant permanent physical change to the land concerned, or

  • (iii)

    is for a term that exceeds 10 years (including any option to renew), and

• (b)

  must refer a proposal to lease land under section 151H to the Council for advice, and

• (c)

  may refer any other proposal to lease or licence land under this Part to the Council for advice if the Minister thinks it appropriate to do so.

(2)

The Minister may refer a proposal to lease or licence land under this Part to the Aboriginal Cultural Heritage Advisory Committee for advice if the Minister thinks it appropriate to do so.

(3)

The Minister may refer a proposal to lease or licence land within a karst conservation reserve under this Part to the Karst Management Advisory Committee for advice if the Minister thinks it appropriate to do so.

(4)

Before determining whether or not to grant a lease or licence under this Part, the Minister must, if the Minister referred the proposal to the Council, the Aboriginal Cultural Heritage Advisory Committee or the Karst Management Advisory Committee, take into account any advice received from the body concerned within 28 days of the reference.

[18]Sections 151A, 151C and 151D

Renumber the sections as 151H, 151I and 151J, respectively.

[19]Sections 151AA and 151B

Omit the sections.

[20]Section 151I Restrictions on grant of lease for residential accommodation (as renumbered by item [18])

Omit “, 151A or 151B” from section 151I (1). Insert instead “or 151H”.

[21]Section 152 Trade within certain reserved lands

Omit “a national park or historic site” wherever occurring.

Insert instead “a national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve or Aboriginal area”.

[22]Section 153A Leases etc relating to wilderness areas

Omit “or Director-General”.

[23]Section 153A (a)

Omit “section 151 (1) or 151B”. Insert instead “section 151”.

[24]Section 153A (b)

Omit the paragraph.

[25]Schedule 1

Insert in appropriate order:

Schedule 1Recategorisation of reserved landPart 1General provisions1Reservation of lands as national parks, nature reserves, state conservation areas, regional parks, historic sites or Aboriginal areas(1)

The lands reserved as, or as parts of, national parks, nature reserves or state conservation areas, a regional park, historic sites or Aboriginal areas by this Schedule are, for the purposes of this Act and the Native Title (New South Wales) Act 1994, taken to have been so reserved by notice published under section 30A (1).

(2)

A reference in this Act to section 30A (1) is, in relation to a reservation of land effected by this Schedule, taken to be a reference to the enactment of the relevant provision of this Schedule that reserves the land.

(3)

A name assigned to any national park, nature reserve, state conservation area, regional park, historic site or Aboriginal area by this Schedule is taken to have been assigned to that land by a notice referred to in section 30A (2).

(4)

Section 35 (including section 35 as applied by section 58) and sections 47D and 47R do not apply to a reservation of land as, or as part of, a national park, nature reserve, state conservation area, regional park or historic site that is effected by this Schedule.

2Current plans of management(1)

This clause applies to a plan of management adopted under Part 5 of this Act, for land the subject of a recategorisation or renaming under this Schedule, before the recategorisation or renaming.

(2)

A plan of management to which this clause applies continues to apply, to the extent to which it applied previously, to the land so recategorised or renamed, as a plan of management for the purposes of this Act.

(3)

A plan of management to which this clause applies may be amended, altered, cancelled or substituted in accordance with Part 5 of this Act.

3Pending plans of management(1)

This clause applies to a plan of management for land the subject of a recategorisation or renaming under this Schedule, being a plan of management for which notice had been given under Part 5 of this Act, before the recategorisation or renaming of the land, but that was not finally adopted at that time of the recategorisation or renaming.

(2)

A plan of management to which this clause applies may be adopted under Part 5 of this Act for the land so recategorised or renamed as a plan of management for the purposes of this Act.

(3)

A plan of management to which this clause applies may be amended, altered, cancelled or substituted in accordance with Part 5 of this Act.

4Saving in relation to revocations

A revocation effected by a provision of this Schedule does not affect anything done or omitted to be done before the commencement of that provision.

5Maps and diagrams

In this Schedule, a reference to a map or diagram is a reference to a map or diagram deposited at the head office of the Department of Environment, Climate Change and Water.

Part 2Recategorisation of land by National Parks and Wildlife Amendment (Visitors and Tourists) Act 20106Corramy State Conservation Area (part only) recategorisation(1)

The reservation under this Act of that part of Corramy State Conservation Area to which this clause applies as part of a state conservation area is revoked and the land is reserved as a regional park to be known as Corramy Regional Park.

(2)

This clause applies to an area of about 290 hectares, being that part of Corramy State Conservation Area reserved by the National Park Estate (Southern Region Reservations) Act 2000 (as Corramy State Recreation Area), designated as area 642-01 on the diagram Misc R 00082 (Third Edition), subject to any variations or exceptions noted on that diagram.

(3)

To avoid doubt, section 10 of, and clause 8 of Schedule 7 to, the National Park Estate (Southern Region Reservations) Act 2000 continue to apply to land to which they applied immediately before the commencement of this clause, despite the enactment of this clause.

(4)

In this clause, a reference to land affected by a provision of an Act referred to in subclause (3) is taken to be a reference to the land as adjusted from time to time under any such provision that applies to the land.

7Limeburners Creek Nature Reserve recategorisation(1)

The reservation under this Act of Limeburners Creek Nature Reserve as a nature reserve is revoked and the land is reserved as a national park to be known as Limeburners Creek National Park.

(2)

In this clause:

Limeburners Creek Nature Reserve means an area of about 9,223.39 hectares, being the whole of Limeburners Creek Nature Reserve reserved by notices published in the following:

• (a)

  Gazette No 34 of 26 March 1971 at page 1000,

• (b)

  Gazette No 37 of 7 April 1972 at page 1189,

• (c)

  Gazette No 191 of 19 December 1980 at page 6506,

• (d)

  Gazette No 19 of 23 January 1981 at page 433,

• (e)

  Gazette No 51 of 3 April 1981 at page 1964,

• (f)

  Gazette No 82 of 10 June 1983 at page 2572,

• (g)

  Gazette No 137 of 30 September 1983 at page 4461,

• (h)

  Gazette No 175 of 7 November 1986 at page 5388,

• (i)

  Gazette No 104 of 19 June 1987 at page 2992,

• (j)

  Gazette No 35 of 9 March 1990 at page 1992,

• (k)

  Gazette No 139 of 4 October 1991 at page 8504,

• (l)

  Gazette No 115 of 11 October 1996 at page 6940,

• (m)

  Gazette No 27 of 5 March 1999 at pages 1834–1836.

8Sea Acres Nature Reserve recategorisation(1)

The reservation under this Act of Sea Acres Nature Reserve as a nature reserve is revoked and the land is reserved as a national park to be known as Sea Acres National Park.

(2)

In this clause:

Sea Acres Nature Reserve means an area of about 76 hectares, being the whole of Sea Acres Nature Reserve reserved by notices published in the following:

• (a)

  Gazette No 54 of 20 March 1987 at pages 1453–1454,

• (b)

  Gazette No 52 of 11 March 1988 at page 1527,

• (c)

  Gazette No 107 of 3 November 1989 at page 9033.

9Macquarie Nature Reserve (part only) recategorisation(1)

The reservation under this Act of the land to which this clause applies as a nature reserve is revoked and the land is reserved as a historic site to be known as Roto House Historic Site.

(2)

This clause applies to an area of about 4 hectares, being that part of the Macquarie Nature Reserve No 45, reserved by notice published in Gazette No 3 of 9 January 1970 at pages 83–84, shown by hatching in diagram Misc R 00106, subject to any variations or exceptions noted on the diagram.

[26]Schedule 3 Savings, transitional and other provisions

Insert at the end of clause 1 (1):

National Parks and Wildlife Amendment (Visitors and Tourists) Act 2010

[27]Schedule 3

Insert at the end of the Schedule with appropriate Part and clause numbers:

PartProvision consequent on enactment of National Parks and Wildlife Amendment (Visitors and Tourists) Act 2010(1)

Despite section 81, a licence may be granted under section 152 in relation to a wilderness area (and operations under such a licence may be undertaken in the wilderness area) even if a plan of management under Part 5 of this Act that was adopted before the commencement of this clause prohibits commercial activities in that area.

(2)

Nothing in subclause (1) affects any other prohibition or restriction in such a plan of management.

Note—

For example, despite subclause (1), a prohibition in an existing plan of management against all mountain biking in a specified wilderness area would still have effect to prohibit commercial mountain biking in that wilderness area.

(3)

This clause ceases to have effect 5 years after the date on which it commences.

[28]Schedule 15 Leases in respect of which head leases may be granted

Omit “Section 151A” from the source reference.

Insert instead “Section 151H”.

Schedule 2Amendment of Wilderness Act 1987 No 196

Insert “(whether of a commercial nature or not)” after “self-reliant recreation” in section 9 (c).