Land legislative update review

Natural Resources and Other Legislation Amendment Act

The Natural Resources and Other Legislation Amendment Bill 2019 received assent on 24 May 2019 and become Act No. 17 of 2019 (NROLA).

The NROLA is a piece of omnibus legislation that amends various Acts to achieve a wide variety of purposes.  In this update, we summarise some of the significant changes to the Land Act 1994 (Land Act).

Dispute resolution

Due to issues arising out of disputes between lessees and sublessees of State land (particularly resort leases on State-owned islands), the Land Act has been amended to provide for a dispute resolution process to apply to all Land Act subleases. The new process applies where:

• there is a dispute about a sublease in relation to its terms; and
• no other Act establishes a dispute resolution process that can deal with the particular dispute; and
• the sublease does not already include a dispute resolution process that can be used to resolve the dispute.

The new process:

• does not apply to subleases of trust land (e.g. reserves) or transport land;
• may not apply in some situations where the dispute is being dealt with under a separate court process or dispute resolution scheme; and
• does not prevent the parties from agreeing to go straight to arbitration or a party taking the matter to court.

In summary, the new dispute resolution requirements govern the provision of information, mandatory referral to mediation before arbitration and, if required, an arbitration process.  A regulation can prescribe the type of information the parties must supply to each other.

State agencies should ensure they are comfortable with the new dispute resolution process or include an alternative dispute resolution process in subleases that is more appropriate for the relevant arrangement.

Prescribed terms

Mandatory standard terms under the Land Act applying to various “sub” interests under the Land Act (excluding equitable interests) may be replaced with terms to be prescribed in the Land Regulation.  The prescribed terms will immediately apply to new interests and will also apply to existing interests after the end of a 12 month transitional period.

The mandatory standard terms documents continue to form part of existing interests unless and until the interest becomes subject to the new prescribed term.  If the interest becomes subject to a new prescribed term, it is no longer subject to any condition requiring the application of a mandatory standard terms document.

The prescribed term prevails over any inconsistent term that may apply to the interest, irrespective of whether the term is part of the registered document or another document that may apply to the interest.  The prescribed terms are binding on each holder of a prescribed interest, including successors in title.

At the date of writing, no prescribed terms have been included in the Land Regulation.  It is expected that prescribed terms will be broadly similar to existing mandatory standard terms, however State agencies may need to review existing arrangements once prescribed terms come into place to ensure that arrangements will still be suitable following the expiry of the transitional period.  State agencies will also need to update precedent documents.

Strengthened witnessing requirements

Witnesses to Land Act titling document signatures now have increased obligations, consistent with national changes to witnessing requirements brought into place in conjunction with electronic conveyancing arrangements.  Witnesses are now also required to:

• take reasonable steps to verify the identity of the individual (a witness is deemed to take reasonable steps if they comply with the steps set out in the Queensland Land Title Practice Manual); and
• either keep a written record of the steps they took or keep certain other evidence for a period of 7 years.

The chief executive may ask the witness to advise on the steps taken by the witness and to produce the evidence kept by the witness. A penalty applies for non-compliance with the chief executive’s request.  In addition, improper witnessing may have adverse implications for the validity of land dealings.

State agencies should put procedures in place to ensure that officers witnessing Land Act titling documents comply with the new requirements.

Access to State land

The NROLA amends the Land Act to allow for a process to gain access to “landlocked” State land where access cannot be agreed with adjoining land owners. The process is similar to entry provisions under resources Acts and is linked to a statutory power under the Land Act that allows an authorised person to enter particular land to carry out authorised activities on the giving of an ‘entry notice’.

The new regime does not appear to support long term uses of the land accessed and a State agency may still be required to negotiate long-term arrangements with adjoining landowners (or resume land) depending on the intended use of the land.

Land, Explosives and Other Legislation Amendment Act 2019

The Land, Explosives and Other Legislation Amendment Act 2019 (assented to 29 March 2019) gives the Registrar of Titles the ability to mandate that certain titles forms may only be electronically lodged, including through the PEXA e-conveyancing system.  This change may be related to the relatively slow take-up of PEXA by the conveyancing industry in Queensland.

State agencies with significant land titling operations may wish to consider whether a mandate to electronically lodge titles forms or other documents would adversely affect practice.