Prickly-pear (Amendment) Act 1944 (NSW)

PRICKLY-PEAR (AMENDMENT) ACT.

Act No. 6, 1944.

An Act to make provision for the extension of the term of prickly-pear leases to leases in perpetuity and for the fixing of the rents of prickly-pear leases; to make provision for the subdivision of prickly-pear leases and for the reference of certain matters to local land boards for report; for these and •other purposes to amend the Prickly-pear Acts, 1924-1934, the Crown Lands Con- solidation Act, 1913, and certain other Acts in certain respects; and for purposes con- nected therewith. [Assented to, 11th April, 1944.]

BE it enacted by the King's Most Excellent Majesty, lative Council and Legislative Assembly of New South by and with the advice and consent of the Legis-	Wales in Parliament assembled, and by the authority of
the same, as follows :—
1 . (1) This Act may be cited as the "Prickly-pear (Amendment) Act, 1944."
(2) The Prickly-pear Act, 1924, as amended by sub- sequent Acts, is in this Act referred to as the Principal Act.
(3) The Prickly-pear Act, 1924, as amended by sub- sequent Acts and by this Act, mav be cited as the Prickly-
pear Act, 1924-1944.

2 .     The P r inc ipa l Act is amended—

(a)	by omitting subsection two of section twenty- one ;
(b)	by inserting next after the same section the following new sect ions:—

21A. (1) The holder of a lease g ran ted under th i s Act or the Act hereby repealed m a y apply to have the t e rm of the lease extended to a lease

in perpe tu i ty .

(2) A n applicat ion shall be made in t h e
m a n n e r and in o r to the effect of the form and
shall be accompanied by the deposit prescr ibed.
(3) The Minis ter may a t his discretion,
but subject to this section, g r a n t the appl icat ion

ei ther as to the whole o r p a r t of the land in the

lease.

W h e r e the Minis ter g r a n t s any such appl ica­

t ion the lease shall (in addi t ion to any special, or o ther conditions imposed under any other provision of this Act) be subject to such special conditions (if any) as the Minister , on the recommendat ion of the Commissioner, m a y impose.

Wi thou t prejudice to the genera l i ty of the

foregoing provis ions of this subsection such

special conditions may include—

(a) conditions designed to protect the land from soil e ros ion; and

(b) conditions designed to p reven t over­

stocking.

(4) The following provis ions shall app ly in respect of every such appl ica t ion:—

(a)	The appl icat ion shall be g ran ted only in respect of such p a r t of the land com­ pr ised in the lease as in the opinion of the Minis ter will not , toge ther wi th all other lands of the appl icant and the spouse of the appl icant which a r e to be taken into considerat ion unde r th is
p a r a g r a p h , substant ia l ly exceed a home
maintenance area .

F o r

F o r the purposes of this p a r a g r a p h

" h o m e maintenance a r e a " means an a r ea which when improved by neces­ s a ry r ingbarking , suckering, scrubbing, clearing, p e a r destruct ion, and p ro ­ vision for water supply, and when used for the purposes for which i t is reason­ ably fitted, would be sufficient for the maintenance in average seasons and circumstances of an average family.

I n considering wha t is a homo main­ tenance a rea for the purposes of this p a r a g r a p h the Minister shall take into considerat ion only such lands as under section two hundred and seventy-six of the Crown L a n d s Consolidation Act, 1913, as amended by subsequent Acts , he is required to take into considerat ion when de termining what a r ea is or will be sufficient for home maintenance unde r tha t Act, as so amended.

(b) The application shall not be granted in respect of such p a r t of the land com­ pr ised in the lease as i s —

(i)   reserved from sale, conditional

sale, conditional purchase or

other al ienat ion unde r the Crown L a n d s Acts (as defined by the Crown Lands Consoli­ dat ion Act, 1913, as amended by

subsequent Acts)—unless the

Minis ter for the t ime being

charged with the adminis t ra t ion

of the Crown Lands Acts so
a p p r o v e s ;

(ii)    within a State forest or timber or forest reserve—unless the Fo r ­ es t ry Commission so a p p r o v e s ;

(iii)   within a reserve for mining or for min ing purposes or within an a rea exempted from aliena­ tion unde r the Mining Act, 1906,

as

as amended by subsequent A c t s —unless the Secre ta ry for Mines-

so a p p r o v e s ;

(iv)    within the a r ea of erosion h a z a r d const i tuted unde r the Soil Con­ servat ion Act, 1938, or wi th in any a rea of erosion hazard not i ­ fied under t ha t Act or within a catchment a r ea notified or con­ st i tuted under tha t Act—except upon the recommendat ion of and subject to such special condi­ t ions as may be recommended by the Catchment Areas P ro tec t ion Board .

(5) (a) W h e r e an applicat ion under th i s

section has been g ran ted (whether as to the whole or as to p a r t of the land in the lease) t he annual ren t of the lease shall be a t the r a t e of two and one-half pe r centum of the capi ta l va lue of the land comprised in the lease, as de te rmined in accordance with this Act by the de te rmina t ion which is for the t ime being in force.

(b) The capi tal value of the land

shall be determined by the local land board.

The first such de terminat ion shall be made a s a t the da te of g r an t ing of the applicat ion, a n d shall remain in force for a per iod of ten yea r s . Subsequent de terminat ions shall be made a t in te rva ls of ten yea r s and each such determina­ t ion shall be made as a t the da te of exp i ra t ion	of the per iod of the last preceding de termina­	t ion and shall remain in force for a per iod of
ten yea r s from tha t date .
(c) The provis ions of this subsec­ tion which prescr ibe the r a t e at which r en t is payable shall, in thei r appl icat ion to and ire respect of any lease, take effect as from the d a t e upon which rent under t ha t lease is next p a y ­ able after the da te as a t which the capi ta l v a l u e of the land in tha t lease is de te rmined .

(d)

(d) W h e r e the t e rm of the lease has

been extended to a lease in pe rpe tu i ty as to p a r t only of the land comprised therein, a de termina­ t ion of the capi ta l value of such p a r t shall be made as a t the da te upon which the t e r m of the lease expires as to the p a r t not so extended, and as from such date the annual ren t shall be a t the r a t e of two and one-half per centum of the capi ta l value so determined.

Any determinat ion under this p a r a g r a p h

shall continue in force unt i l the next periodic de terminat ion made p u r s u a n t to p a r a g r a p h (b) of this subsection comes into force.

(e) In determining capital value

p u r s u a n t to this subsection the local land board shall take into considerat ion the following m a t t e r s : —

(i)   the conditions of the lease and in

pa r t i cu la r the conditions re la t ing to

pr ickly-pear hav ing due r ega rd t o —

(a)	the state of the land with respect
to pr ick ly-pear ;
(b)	the compliance or non-com­ pliance, as the case m a y be, by the holder with the conditions of
the lease ;
(c)	the expenditure incurred by him and tha t may be required to be incurred by him in compliance with such conditions or any modification thereof;

(ii)   the extent to which the holding com­ pr ises land which is suitable for ag r i ­

cul ture or mixed fa rming p u r p o s e s ;

(iii)   the proximity or otherwise of the hold­ ing to an exist ing or proposed line of ra i lway or main road or to exist ing or

probable agr icu l tura l se t t lement ;
(iv)	the public in te res t ;

(v)   the effectiveness or otherwise of bio­ logical means and methods in destroy­ ing prickly-pear on the land comprised in the lease,

and

and such capital value shall be determined i r respect ive of the value of any improvements (other than those resul t ing f rom the adopt ion of biological means and methods) owned by the appl icant or in respect of which he is liable to p a y the value or an annua l r en ta l value.

(f) Any determinat ion by the local land board of capi tal value under this subsection may be the subject of an appea l o r reference to the L a n d and Valuat ion Cour t and tha t court shall have jur isdict ion to hear and determine any such appea l or reference.

The provis ions of section nineteen of the Crown Lands Consolidation Act, 1913, as amended by subsequent Acts , and the regula­ tions thereunder , shall, muta t i s mutandis , apply to and in respect of any appeal under this sub­ section.

A reference under this subsection may be made by the Minis ter within one month af ter receipt of any de terminat ion aga ins t which an appeal is not made , or if an appea l is made aga ins t the determinat ion, then within one month af ter the receipt of the notice of appeal

by the U n d e r Sec re ta ry for Lands .

(6) The cost of any necessary survey shall be pa id by the holder in the m a n n e r and a t the t ime prescr ibed and upon defaul t of pay­ ment the lease shall be liable to forfei ture .

21B . (1) The holder of a lease g r an t ed unde r

this Act or the Act hereby repealed m a y make

appl icat ion to the Minis ter for the subdivision

of his lease into two or more por t ions .

A n applicat ion may be made under this sec­ t ion whe ther or not the t e r m of the lease has been extended to a lease in pe rpe tu i ty .

(2) The applicat ion shall be made in the prescr ibed m a n n e r and in or to the effect of the prescr ibed form and shall be accompanied by the prescr ibed deposit which shall be available for the paymen t of the costs of any survey or r epor t s which may be required.

(3)

(3) The Minis ter m a y g r a n t or refuse

any applicat ion unde r this section or g r a n t any such applicat ion with such modifications a s he m a y think fit, and where he g ran t s an applica­ t ion, with or without modifications, he shall settle the lines of subdivision and shall—

(a)

in any case where the term of the lease has been extended to a lease in per­ petui ty , cause a de terminat ion of the capi ta l value of the land comprised in each of the por t ions to be made by the local land board as a t the da te of the application, and, for the per iod com­ mencing on the date upon which ren t is next payable after the g ran t ing of the applicat ion and ending on the da te as at which the next periodic determina­ tion of the capi tal value of the land is made under section 21A of this Act, the ren t payable in respect of each such por t ion shall be at the r a t e of two and one-half pe r centum of the capi ta l value of tha t por t ion as so de te rmined ;

(b)

in any other case, apportion the rent as between the subdivided por t ions .

(4) The holder of the lease shall sur­ render such land as may be necessary for provid ing roads of access to the subdivided por t ions , which land shall thereupon become Crown land free from any claim thereto of such

holder. (5) E a c h por t ion of a subdivided lease	shall be subject to the same conditions as
a t tached to the lease before subdivision, and shall be subject to all the provis ions of this Act, and to the provis ions of section 193A of the Crown Lands Consolidation Act, 1913, as amended by subsequent Acts , as if it were a
separa te lease.
21c. The Minister upon the recommendation of the Commissioner may accept a su r r ende r of any lease g ran ted under this Act or the Act hereby repealed ei ther as to the whole or any p a r t of the land leased. This

Thi s section shall app ly whether or not the t e r m of the lease has been extended to a lease in pe rpe tu i ty .

3 . The P r inc ipa l Act is fu r ther amended—

(a)	by inserting in subsection two of section eleven af ter the words " m a y s t a t e " the words " a period of t ime within which the land shall be freed from prickly-pear to the satisfaction of the
Commissioner or may s t a t e " ;

(b) (i) by omit t ing from section twenty-eight the words " o r who sca t ters or causes to be scat tered the leaves or seed of p r i c k l y - p e a r " and by inser t ing in lieu thereof the words " o r purchases any pr ickly-pear or the leaves or any other p a r t or the seed of pr ickly-pear or who sca t ters or causes to be sca t tered any prickly-pear or the leaves or any o ther p a r t or the seed of p r i c k l y - p e a r " ;

(ii)   by inserting in the same section after the

words " l e a v e s any p r i ck ly -pea r " the words

" o r the leaves or any other p a r t " .

4. The Crown Lands Consolidation Act, 1913, as

amended by subsequent Acts , is amended—

(a) by inserting in section seventeen after the words and figures " o r the Public T r u s t s Act, 1897 ," the words and figures " o r the Pr ickly-pear Act, 1924-1944";

(b) by omit t ing subsection seven of section 193A and

by inser t ing in lieu thereof the following sub­

section :—

(7) The capital value of a homestead f a rm or Crown-lease or the price of a conditional pur­ chase under this section or the price a t which the land converted into a condit ional lease unde r this section shall be convertible into an addi­ t ional condit ional purchase shall be—

(a) the capital value of the land comprised in the pr ickly-pear lease where the same has been determined by the local land boa rd ; or

(b)

(b)	where the capital value has not been so determined, but the capital value of the prickly-pear lease has been notified, the capital value as so notified; or
(c)	where the capital value has not been so determined or notified, such capital value as the local land board may, upon an application for conversion under this section, determine:

Provided that the local land board in determining the capital value of the land under this paragraph shall deter- mine the same as at the date of appli- cation for the prickly-pear lease and irrespective of the value of any improvements owned by the applicant for conversion.