By a series of landings, flag raising ceremonies and proclamations, the eastern side of Australia (initially) and later Western Australia were deemed vacant (terra nullius) and claimed on behalf of the British Government as colonies and all the land was claimed for and declared to belong to the British Crown.
The process of settlement was soon followed by the subdivision of parts of the land and subsequent issue of a Crown lease or Crown Grant to the successful applicant. The original grants were issued by the Governor, as the Queen’s Representative. Land is now granted in fee simple by the cancellation of the Crown land title (on lodgement of a transfer) and the creation and registration of a certificate of (freehold) title.
2. Introduction to the Land Administration Act 1997 (LAA)
The introduction of the LAA on 30 March 1998 revolutionised the administration of Crown land in Western Australia. The legislation modernised Crown land administration and management and is a substantial rewrite of existing laws.
The legislation introduced new practices and policies for the release and protection of the Crown estate and the legislation implemented a document registration process for the Crown estate, where all documents will need to be registered to be effectual. Well-established conveyancing procedures used for freehold land now applies to the Crown estate, while preserving the current benefits of the Crown legal system.
This has resulted in a Single Registration System, which has simplified and streamlined many processes relating to the Crown estate. A title is intended to be created for all land parcels in the State. This will result in a consolidated register for all Crown and freehold tenure and interests.
On implementation of the LAA, all existing Crown land records automatically became Qualified certificates of Crown land titles (QCLTs). This ensured that existing records endorsed on Crown land records (CLRs) could be brought across subject to minor modification, into the new system. CLRs created prior to implementation of the Act for reserves did not have in most cases leases, mortgages, etc. registered against them. In addition, over 65% of the total Crown land parcels did not have a CLR created for them.
Many local governments and some statutory authorities have powers to grant interests over Crown land (generally leases). Pre-LAA, these interests and any associated encumbrances were maintained on individual registers by different agencies throughout the State. For 5 years Landgate undertook a take-up program of all interests granted pre-LAA, to be registered or have caveats recorded free of registration fees, against the relevant Crown land parcel on Certificate of Crown land title (CLT) or QCLT. This take-up program also formed the basis for the process to remove the qualification from all QCLTs (see paragraph 9).
3. Crown Land Administration – Department of Planning, Lands and Heritage (DPLH)
The Department of Planning, Lands and Heritage (DPLH) is the primary government agency charged with the administration of Crown land. Included in the matters allocated to the Department to arrange on behalf of the State are:
- to arrange the subdivision of Crown land creating or extending roads and townships
- to arrange the sale of Crown land for private or commercial use, either subject to conditions for development or not
- to arrange to set areas of Crown land aside to create reserves in the public interest for public use or for services and utilities to provide a public benefit
- to arrange the placing of the day to day control and management of reserves in local Governments, statutory utilities or incorporated or statutory associations (such as service clubs, sporting clubs and churches)
- to arrange for the creation and registration of a lease of Crown land for residential, agricultural or industrial purposes
- to co-ordinate the amendment of roads, for matters such as widening, deviation and closing;
- to co-ordinate the taking and revesting of freehold land required for public purposes
- to co-ordinate the collection and registration at Landgate of dealings as to interests in the Crown estate on certificates of Crown land title.
Other government agencies are entrusted with varying degrees of management roles over Crown land, with the major roles being played by the Department of Biodiversity Conservation and Attractions, the Water Corporation, the Department of Mines, Industry Regulation and Safety and, to a lesser extent, the Department of Transport.
4. Defining Crown Land
It could be stated in very simplistic terms that Crown land is all land in Western Australia for which there is no certificate of title under the TLA or a memorial or grant registered under the Registration of Deeds Act 1832. Where a government department purchases the land in a certificate of title the land is not automatically revested as Crown land and (subject to the legislation controlling the Department) the Department has all the rights and obligations of every land owner.
Nearly all roads are Crown land (road extends from fence line to fence line of the properties on each side of it, not just the bituminised portion set aside for vehicles). Most recreation reserves, river foreshores and beaches are Crown land, and public utilities (dams, pump stations, electricity switch yards, etc.) are usually constructed on Crown land.
5. Transmission of Interests from Crown to Freehold
Until the introduction of the Land Amendment (Transmission of Interests) Act 1992 all new Crown Grants were created and registered free of any interests created while the land was still Crown land. These interests, which were in the main leases, could range from those created when Government Departments made short term arrangements on property not immediately required, to long term commercial leases of land adjoining harbour facilities or railway sidings.
The new legislation, effective from 16 June 1992 provided a framework whereby when the land was registered under the TLA as a Crown Grant the previously unregistered interests were brought forward onto the grant and attained a status close to that of registered interests under the TLA. As not all of the interests have the precise boundary definition required for registration under the TLA, the Land Amendment (Transmission of Interests) Act 1992 provides for the adjustment of the interest to match the survey boundaries shown in the paper certificate of title or subdivision of the title without the need for partial surrenders or extensions of the original interest.
6. Registration of Pre-LAA Crown Documents
Under the Land Act 1933, Crown land was reserved and vested under that Act by Order in Council made by the Governor and gazetted in the Government Gazette. The Order was commonly known as a Vesting Order. The Order had the effect of vesting the parcel of Crown land in a particular person for a designated purpose and subject to such conditions and limitations, as the Governor deemed necessary. Under the Land Act 1933, the Governor could confer upon the person in whom the Crown land was vested, the power to lease, sub-lease or grant licences over the vested reserve.
These Vesting Orders have been transitioned into the LAA as Management Orders made under the LAA. The granting of leasing powers in the Vesting Order includes the power of the lessor to transfer/assign, extend, vary or sub-lease a lease.
On the introduction of the LAA the ability of the Minister for Lands to make orders creating reserves and Management Orders was created. These orders registered under the TLA are now used in place of gazettal actions by the Governor.
A transitional process had to be considered to register documentation prepared pre-LAA, which had been created in a deed format and were not registrable in that format. These pre-LAA types of documents can be accepted for registration under the TLA with TLA approved forms used as coversheets if the terms and conditions set out in the documents are clear.
All panels on a coversheet for pre-LAA documents should be completed. The coversheet does not need to be stamped or executed provided that the deed contained within the approved coversheet is an original or duplicate original document and has been correctly stamped and executed. The consent of the Minister for Lands must also be attached or endorsed on the document. Where a lease or sub-lease is lodged in duplicate, both the original and duplicate must have a coversheet attached.
Approved forms as found on Landgate’s corporate website can be used as coversheets for relevant Crown deeds created prior to 30 March 1998.
Since 30 March 1998, ‘Transfers of Leases’ should have been used instead of ‘Assignments of Leases’. Assignments of Leases created after 1 September 1999 will not be accepted for registration.
A mortgage over a registered Crown interest (such as a lease or sub-lease) in Crown land may be registered under the TLA, the mortgage must be prepared in the same format as a freehold mortgage. The form of mortgages by way of sub-demise, used regularly for Crown interests created pre-LAA, is not acceptable for registration under the TLA.
However, mortgages by way of sub-demise, created pre-LAA, may be protected by a caveat recorded against the interest for which the mortgage has been taken provided that the mortgage and the interest it is securing received the approval of the Minister for Lands.
6.1. Registration of Current Interests Only
The sequence of acts and events forming documentation that convey interests from one party to another along a transaction trail is commonly known as the Chain of Title. The exception to registering the complete chain of title is where pre-LAA documents creating interests in Crown land are lodged for registration. Normally, only current (or live) interests will be registered against a Crown title. However, to be able to register the current (or live) interests, the lodging party must also present the complete chain of original stamped documents.
The chain of title will, in many cases, contain original documents that are no longer current. For example, a lease may have been assigned/transferred six times from the date of the original head lease. In such cases, only the current interests such as the original head lease, which is the main interest that contains the lease conditions, and the last assignment/transfer of lease, which contains the details of the current lessee, need to be lodged for registration. The in between documents are simply presented for sighting and verification of the chain of title. The in between documents presented may be an original, duplicate or a stamped photocopy.
If the complete chain of title cannot be presented as evidence to a current interest, the dealing will be referred to the Commissioner for a determination as to the validity of the title held by the lodging party. The Commissioner may issue a request for the production of evidence as the Commissioner thinks fit before the interest will be registered. Alternatively, the lodging party may consider lodging a caveat in lieu of the interest where the chain of title cannot be established.
6.2. Accepting Duplicate Documents as Originals
The registration of an interest in Crown land requires the lodgement of the signed and stamped original document in a prescribed form with the Registrar. Section 81U of the TLA however, does allow for the registration of a signed and stamped duplicate original document in the absence of a signed and stamped original document where the document was granted prior to 30 March 1998.
If the lodging party is unable to locate the signed and stamped original document, they should contact the Department of Planning Lands and Heritage and request a search of their relevant Department file to ascertain if it contains the original document. At times in the past, a number of document copies could have been sent in to the Department for Minister’s approval wherein the Department may have retained one copy to be placed on their file.
The lodgement of an executed and stamped duplicate original document in place of the original stamped and executed document will only be acceptable for registration upon production of a statutory declaration from the lessor (management body/agency) and the lessee.
The statutory declaration from the lessor (management body/agency) should include the following:
- State the position the declarant holds within the organisation and that he/she is authorised to make the declaration on behalf of the organisation.
- Identify the land by parcel identifier (lot or location), reserve number and purpose.
- Identify the document (set out the details of the document) and indicate if and when the Minister for Lands approval had been received.
- What enquires have been made to locate the original document.
The statutory declaration from the lessee should include the following:
- Identify the land by parcel identifier (lot or location), reserve number, purpose and lease details.
- Identify the current occupant of the land.
- Statement to the effect that the original document was never in their possession or original document was in their possession and what searches and enquires were made to locate it.
- Statement that the original document had not been deposited with any bank, firm or person by way of security for any lien or loan or any other purpose.
Duplicate original documents in place of the original cannot be accepted for documents created after 30 March 1998.
7. Minister for Lands Consent for Transactions over Crown Land
All transactions over Crown land require LAA s.18 consent of the Minister for Lands unless the Crown land is set aside or vested for purposes of another Act. The approval from the Minister should be obtained in writing prior to completion and execution of agreements for a transaction, including documents such as a lease, transfer, mortgage, sub-lease or evidence for a caveat.
The approval may be by letter or fax signed on behalf of the Minister by a delegated officer approving in-principle the proposed transaction and agreement or by an approval stamp placed on the document. A copy of the in-principle approval letter or fax is required to be included with the document or caveat when lodged with Landgate for registration who will check the document for compliance with the in-principle approval. To arrange for the necessary consent, contact can be made with the Department of Planning, Lands and Heritage.
Section 18 approval is not required in relation to dealings under management orders issued to Ministers or government agencies and corporations, unless the management order specifies that the Minister’s consent is required (see sections 18(8)(d) and 46(3b)). All dealings under management orders issued to local governments require s.18 approval. Consent for dealings over leases under the War Service Land Settlement Act can in certain circumstances be exercised by the Bank of Western Australia Ltd under a delegated authority in lieu of the Minister for Lands.
7.1. Section 75 of the LAA
Consent of the Minister for Lands is required for any freehold Conditional Tenure land (see paragraph 14) or a Crown Grant in Trust that is being transferred, mortgaged, leased, charged or otherwise encumbered.
7.2. Section 134 of the LAA2
Consent of the Minister for Lands is required for any Pastoral Lease that is being transferred, mortgaged, sub-leased, charged or otherwise encumbered.
2Section updated 12/04/2022
7.3. Section 172 of the LAA
Consent is required for any transaction over Crown or freehold land that is encumbered by a Notice of Intention to Take (NOITT), subject to certain exceptions (see TAK-02 Taking Orders – NOITT). The consent should be obtained from the relevant agency responsible for the NOITT. Where the NOITT is over Crown land, the transaction additionally requires s.18 consent of the Minister for Lands.
7.4. Section 178 of the LAA
Consent of the Minister for Lands is required for any Taking Order over Crown land that proposes to grant an interest from the Crown estate. It is unlikely the Department of Planning, Lands and Heritage would grant such a consent.
8. Internal Interests, Plans and Sites
A Subsidiary Crown Land Title (SCLT) is a Crown title created and registered for a lesser interest in the Crown land to facilitate the recording of interests affecting that lesser interest (see TYP-02 Crown Land). The SCLT forms part of an existing CLT, referred to as the Head CLT.
Before SCLT’s are created, an Internal Interest Plan must be drawn up to show the multiple interests that are contained within an existing parcel/tenure of Crown land. Internal Interest Plans are used to identify sites, which are parcels of Crown land within a reserve or lease. Its primary function is to display the location and boundaries of leasehold or sub-leasehold interests within a larger reserve or head lease.
Internal Interest Plans may be surveyed or unsurveyed deposited plans. It is the spatial relationship that is to be portrayed and the ability to relate a site number to the relevant SCLT that is important, rather than the question of absolute accuracy. Where accurate data exists, it will be used. However, where available information, generally from management bodies/agencies, identifies the relative position of sites, an Internal Interest Plan can be prepared without the additional cost of survey.
Management bodies/agencies and lessees can liaise with Landgate to help collate graphical information required to prepare Internal Interests Plans. All Internal Interest Plans have to be suitable for the creation of site lots for the purposes of creating SCLT’s and QSCLT’s and must be approved by an authorised land officer.
9. Unqualification and Validation of Qualified Crown Land Titles
The LAA provides for the creation and registration of four types of Crown title:
- Certificates of Crown land title (CLT)
- Qualified certificates of Crown land title (QCLT)
- Subsidiary certificates of Crown land title (SCLT)
- Qualified subsidiary certificates of Crown land title (QSCLT).
A CLT or SCLT is a guaranteed title for a defined parcel of Crown land. A QCLT or QSCLT is a title for a defined parcel of Crown land that does not guarantee that all current interests have been registered or recorded against it.
The unqualification or validation of a qualified Crown land title enables the qualified Crown land title to be unqualified and converted to a guaranteed Crown land title.
Any person with a registrable interest in a parcel of Crown land that is not already the subject of a validated certificate of Crown land title, can make written request to the Minister for Lands via the relevant Manager in the Department of Planning, Lands and Heritage to have a certificate of Crown land title created for that parcel.
Only the Minister for Lands can apply under the LAA and Part IIIB of the TLA to the Registrar for the creation and registration of a title for Crown land. Where the Department of Planning, Lands and Heritage lodge an Application for a CLT or SCLT, a statement in support made by that Department on behalf of the Minister must state any current interests that have been granted over the subject land.
Any interests identified in the supporting statement (e.g. lease, sub-lease, mortgage, easement) must either be registered against the Crown title or be supported by a caveat lodged to protect that interest.
To be certain with information that is added to a statement for unqualification, the Department of Planning, Lands and Heritage may request interest holders to confirm in writing or supply a statutory declaration to verify their interests and to confirm the status of their interest, including whether they have granted any further interests against their existing interest.
When the Department of Planning, Lands and Heritage state that all interests for a parcel of Crown land have been identified, and registered or protected by a caveat, a QCLT may be unqualified and converted to a guaranteed CLT.
10. Subject to Survey – Not for Alienation Purposes
Unlike freehold land, many Crown land parcels have not been surveyed or are only partially surveyed. Examples are national parks and pastoral leases where the cost of a full survey would be prohibitive and probably never be required.
The production of a Crown title for an unsurveyed land parcel requires a graphic in the form of a deposited plan drawn to the standard of the cadastral information available. The deposited plan and Crown title are noted with the statement Subject to Survey-Not for Alienation Purposes.
Crown land cannot be transferred to a fee simple estate until the land boundaries have been fully surveyed and a new deposited plan created.
11. Adjustment of Boundaries
Section 23 of the LAA allows the Minister for Lands, in conformity with sound planning and land management principles, to survey, resurvey or subdivide Crown land the subject of any interests or caveats, with or without the encumbrancers consent.
The lot boundaries are adjusted accordingly despite the encumbrances and the affected interests or caveats then encumber the lots defined in the Adjustment of Boundaries - Continuing Interests document and not the land defined in the document that created them. An appropriate endorsement on the register will remain under each affected encumbrance until the encumbrance is removed.
It is not compulsory to show an Adjustment of Boundaries - Continuing Interests document as an encumbrance in following instruments being recorded against the land.
Section 141 of the LAA allows the Minister for Lands, on recommendation of the Pastoral Lands Board, by order provide for the adjustment of boundaries between two pastoral leases. To support the amendment to the register, a Pastoral Lease Boundary Amendment Order document is lodged by the Department of Planning, Lands and Heritage.
This document is utilised where a boundary does not follow a fence line and the lessees wish to adjust the legal boundary to conform with the on ground accepted boundary or, as the result of a cadastral survey it is found that the surveyed boundary does not conform with the current legal boundary.
12. Leases of Crown Land and Documents Affecting Leases of Crown Land
For information on leases of Crown land and documents affecting leases of Crown land Crown see the following references to other Policy and Procedure Guides:
13. Crown Grant in Trust
Before the introduction of the LAA the Minister for Lands may have issued a freehold title over a reserve, (commonly known as a Crown Grant in Trust) for a particular purpose or any ancillary or beneficial purpose. Crown Grants in Trust were usually issued to an organisation rather than a person and the organisation usually had a strong social or welfare reason for existence.
The land was granted in fee simple free of cost but could only be used for a designated purpose, such as a church site, hall site, ambulance quarters, etc. Mortgages to fund the development of the site of a Crown Grant in Trust created under the Land Act 1933 could be registered with the consent of the Governor (obtained through the Department of Planning, Lands and Heritage) and leases could be registered in a similar fashion but the lessee may only use the land for the same designated purpose as the original proprietor or lessor. There was no specific provision in the Land Act 1933 to transfer a Crown Grant in Trust.
However, grants issued in recent times contain a condition requiring the approval of the Governor to any transfer. Under the LAA the approval of the Minister for Lands is now required in lieu of the Governor.
Following the case of Ramage v the Druids & Others, (Supreme Court of Western Australia 2273/1990) approval to transfer is only given in exceptional cases. If a new title is created on the registration of the transfer of the land in a Crown Grant in Trust, the new title remains bound by the trust pursuant to s.68 of the TLA.
A Crown Grant in Trust for Public Endowment in the name of Trustees of The Public Endowment may be transferred to another party where gazettal has been included with the Transfer that confirms the Governor has approved the sale of the land free of all trust. No additional consents are required and the trust is removed from any title.
To assist searchers, a stamp bearing the words Crown Grant contains a trust has been placed on the top left hand side of the front of paper titles which have their origins in a Crown Grant in Trust. In the case of a digital title, the reference to a Crown Grant in trust appears in the Second Schedule.
As a result of the implementation for the LAA, no more Crown Grants in Trust will be created under the Land Act 1933. The existing Crown Grants in Trust created under the Land Act 1933 are deemed to have been granted under the LAA and any changes to them may be made in accordance with the provisions of the LAA.
Under the LAA Crown Grants in Trust are called Conditional Tenure Land (see paragraph 14).
Crown Grants in Trust under the Land Act 1898 have not been transitioned into the Land Act 1933 or the LAA. Leases, Mortgages or Transfers over a Crown Grant in Trust which was created under the Land Act 1898 (s.42) do not require consent of the Governor or the Minister. However, there may be limitations imposed by other Acts e.g. those under the Uniting Church in Australia Act 1976 require Governor's consent. When dealing with a Crown Grant in Trust created under the Land Act 1898 an assessment of the trust purpose is to be made and a determination as to whether another Act could govern it.
14. Conditional Tenure Land under Section 75 of the Land Administration Act 1997
Crown land may be sold into the fee simple subject to conditions in accordance with s.75 of the LAA. The land is known as conditional tenure land. Conditional tenure land is fee simple land subject to conditions of use of the land registered against the certificate of title. The conditions are such conditions determined by the Minister for the use of the land, usually requiring that the land be used only for a designated purpose.
The land is transferred either for nominal value, or for a discounted price, reflecting the restrictions placed on the land’s use, and the value to the community of the service provided on the land (e.g. aged persons’ home, or church). The State’s equity in the land consists of the difference between the land’s unimproved market value at the time of transfer, and the price paid by the recipient of the title for the land. Where a nominal price was paid, the State’s equity is 100%.
If the minister specifies that conditional tenure is subject to the condition that due performance of other conditions by the holder of the freehold is to be secured by a charge of that land, then under s.16 of the LAA the Minister may lodge a Memorial.
When such a Memorial is registered it is a charge on the land for the benefit of the Minister. While the relevant memorial is registered, the Minister has the same powers of sale over the subject land, as are given by the TLA to a mortgagee under a mortgage that is in default of payment of the principal, where any default is made in respect of the performance of the conditions.
When conditional tenure land is used in breach of any condition concerning the specified purpose, the conditional tenure land can be forfeited by the Minister under s.35 of the LAA and the Minister may recover a value consideration from the holder of the freehold.
Conditional tenure land cannot be licensed, mortgaged, charged or otherwise encumbered without consent of the Minister for Lands under s.75(6) of the LAA and cannot be transferred without consent under s.75(5).
A subdivision of conditional tenure land may only occur when the land is being subdivided as part of a leasehold scheme and with the consent of the Minister for Lands under s.75(3A) of the LAA.1
1Paragraph added 08/09/2021
Conditional Tenure land replaced Crown Grants in Trust formerly issued under s.33(4) of the Land Act 1933 over reserved land and limited to a specific purpose.
Conditions relating to conditional tenure land can only be removed pursuant to an application made to the Minister, together with payment to the Department of Planning, Lands and Heritage of the State’s equity in accordance with s.75(7) of the LAA.
If the Minister agrees to this payment, the conditions and covenants registered against the certificate of title may be removed and cancelled on the registration of a Removal of Conditions document lodged by the Department of Planning, Lands and Heritage. A Removal of Conditions document must have a duty notation affixed or attached to it.
15. Removal of Trust from Crown Grant
There was no specific provision in the Land Act 1933 to remove a trust from a Crown Grant but where the land was to be exchanged, or was no longer required, the Crown Grant could be surrendered to the Crown pursuant to s.37A of the Land Act 1933.
Where an organisation holding a Crown Grant in Trust wished to have the trust removed, it had to pay to the government (Department of Planning, Lands and Heritage) the unimproved value of the land. On payment for the land (or satisfactory arrangements to pay), parliamentary sanction for the removal was sought in the annual reserves bill fostered by the Department of Planning, Lands and Heritage.
The above procedures were not required where the proprietor of the Crown Grant in Trust had the benefit of a special legislation permitting the sale of the land. Examples of such legislation are the University Endowment Act 1904 and the Roman Catholic Bunbury Church Property Act 1955.
As a result of the implementation for the LAA, no more Crown Grants in Trust will be created under the Land Act 1933. The existing Crown Grants in Trust are deemed to have been granted under the LAA and any changes to them may be made in accordance with the provisions of the LAA.
Under the LAA Crown Grants in Trust are called Conditional Tenure Land (see paragraph 14).
Section 82 of the LAA provides for the revestment of fee simple land in to Crown land, with or without encumbrances. A Revestment Order will not be registered unless the fee simple land to be revested is in the name of the State of Western Australia. On registration of the revestment the freehold title is converted to a Crown title with a new Volume and Folio number. The same lot and plan number for the land is usually retained in the freehold to Crown conversion.
The Minister for Lands will generally allow for easements and covenants to service authorities and valid notification documents under s.165 P&D Act (formerly s.12A TP&D Act) and s.70A TLA to be shown as encumbrances in a revestment order and brought forward onto the new Crown title.
If another type of encumbrance affects the land it cannot be shown as an encumbrance in the revestment order without approval from the relevant Manager in the Department of Planning, Lands and Heritage. CMS Gas Transmission of Australia easements created when the land was freehold are not acceptable and must be surrendered. They may be replaced with an LAA easement. Implied rights, e.g. s.167 TLA rights, which encumber the land will usually prevent revestment. All rights benefiting the land to be revested continue and are automatically brought forward onto the new Crown title.
Revestments prior to the LAA were considered to remove existing encumbrances.
17. Easements and Covenants over Crown Land
For information on easements and covenants over Crown land and documents affecting easements and covenants over Crown land see the following references to other paragraphs in this manual:
18. Transfers for Purchase of Crown Land
For information on the transfer of Crown land to fee simple land see TFR-05 Transfer of Mortgage, Charge or Lease section 5.3.
19. Transfers for Surrender of Freehold Land to Crown Land
For information on the transfer and surrender of fee simple land to State of Western Australia- see TFR-01 Transfers
20. Further Information
Further information on Crown land can be found at the Department of Planning, Lands & Heritage
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