22 December | Property Team Year in Review & Crown Land Briefing
Year in review - Property | Planning | Infrastructure
Message from the Managing Director
On behalf of Antony, Ilana, Lino, Michael, and the entire PremierNational team, I wish you and your family a Merry Christmas and a happy and safe New Year.
I want to welcome you to what will be the first in a series of monthly property, planning and infrastructure newsletters for clients and friends of firm. We will focus on providing relevant and topical summaries of events in government and industry, as well as fact sheets on complex policy issues. If you do not wish to receive the newsletter going forward, please do just let me know.
Despite the enormous challenges of 2020, it has been a year of growth for the PremierNational Property, Planning and Infrastructure team, as we have evolved our service offering to better enable our clients to navigate policy and regulatory challenges with Government. I want to particularly acknowledge our loyal clients and their advisors for their support throughout 2020, and look forward to a terrific 2021.
Read on for updates on the PremierNational team and projects, links to past news alerts, and our summary of key property and planning developments throughout 2020.
Ian HancockManaging Director
The Team
It has been a year of growth for the Property, Planning and Infrastructure team at PremierNational. Director, Antony Anisse was joined by two new Special Counsels - Lino Caccavo and Ilana Waldman.
Lino is an experienced property professional having worked on commercial, retail and industrial assets for over 25 years and appreciates the increasingly complex development approvals processes and matters relating to negotiating and securing development and investment approvals.
Lino has previously worked with Lend Lease, Stockland and most recently with AMP Capital where he was the Director of Real Estate, Government Policy & Stakeholder Strategy. He has delivered many commercial and retail projects and helped secure development approval for shopping centres, industrial premises and commercial buildings. Most recently he was a member of the senior executive team at AMP Capital, and played a vital role in helping secure development approvals for the ambitious and visionary $2B Quay Quarter Sydney development at Circular Quay, which included developing the concept of a digital ‘backbone’ for the development which allows the worker of 2030 to connect to ‘place’ through technology.
Ilana has a wealth of experience in Government, most recently having served as an executive in the Department of Planning, Industry and the Environment. As part of her role as Director, Strategy and Policy for the Crown Lands Division, Ilana led the reform of the Crown land legislation, culminating in the introduction of the new Crown Land Management Act 2018. She was also responsible for the development of the first State Strategic Plan for Crown land.
Ilana has extensive experience in strategy and policy and has worked with a range of Government and non-Government stakeholders to ensure that policy is fit for purpose, clear and delivers public benefits. She also has a deep knowledge and understanding of the legislative regimes that apply across the property, planning and infrastructure spheres and which form the broader context for developments in NSW.
Prior to her work in Government, Ilana was a Senior Associate in the Property, Construction and Planning team at King & Wood Mallesons. She specialised in negotiating complex development, lease and acquisition arrangements for a range of top tier clients including Westpac, Frasers, Commercial & Industrial Property and Mirvac.
Knowledge specialists
The team is committed to keeping clients up to date with developments in the property, planning and infrastructure space. News and updates can be accessed at https://pstate.com.au/pn-news. We are also developing a series of clear fact sheets with the key points on topical and relevant matters – our most recent fact sheet on developing and acquiring Crown land is attached.
Year of Developments in Planning
It has been a significant year of change in the planning space, with a number of developments. Key matters of interest included:
Response to COVID-19 – the Government led a multi-pronged approach in response to the pandemic, with the intention of laying the foundations for economic recovery. Key from a planning perspective was the Planning System Acceleration Program, which fast-tracked assessments of State Significant Developments, development applications and rezoning.
Planning Reform Action Plan – the Government announced its Planning Reform Action Plan for the next three years, which has several components, including:
A commitment to a faster assessment program by June 2023 through new resources, better case management and system improvements;
A review of existing concurrence and referral provisions, with the aim of reducing concurrence and referral requests by 25 percent by June 2023;
A new role for the Land and Environment Court in hearing appeals by developers in relation to rezonings that have taken too long to resolve. The legislation to introduce this new function is expected by mid 2021;
Reforms to complying development, focused on employment areas and offering a fast-tracked approval pathway for low impact development. This work is also expected to be delivered by mid 2021;
A new framework for development in Government-identified precincts that prioritises, accelerates and improves coordinated delivery of these strategic precincts. This work is expected to be delivered by mid 2022.
Establishment of the Planning Delivery Unit – This new unit was established with the aim of unblocking planning projects by pulling together NSW Government agencies to work with councils and proponents. Early evidence is that there have been some successes, but that the unit is limited to a liaison role, as opposed the being able to influence decisions by the various Government agencies.
Infrastructure contribution system review – The Government commissioned the Productivity Commissioner to review and report on the infrastructure contributions system. The report recommends a number of changes which were detailed in a recent update and can be accessed at https://pstate.com.au/pn-news.
Cutting-edge Projects
This year, we have been really excited to work on some major, cutting-edge projects and developments, including a shopping centre redevelopment, a data centre, numerous mixed use and residential precincts, land release projects and public-private partnerships.
With more projects lining up for next year, we want to take this opportunity to thank our clients for involving us in their ventures as part of their strategic team. Have a safe and joyful break and we look forward to working with you in 2021!
Developing and acquiring Crown land
What is Crown land?
Crown land is the land that is owned by the State of NSW and that is not national parks or state forests. There are over 34 million hectares of Crown land in NSW, with Crown land covering approximately 42 per cent of the state. The vast majority of this land – approximately 85% - is in the far west of New South Wales, where it is leased to graziers and farmers.
In the central and eastern parts of NSW, Crown land is more scattered and usually exists in the form of parks, reserves and remnant strips of land that were left over when land was historically sold to private interests.
Who manages Crown land?
Crown Lands, a part of the Department of Planning, Industry and Environment, is responsible for the management of Crown land in NSW. Crow Lands reports to the two Crown Lands Ministers – currently Minister Stokes in relation to the Greater Sydney area and Minister Pavey in relation to the rest of NSW.
What is special about Crown land?
Crown land is different from all other land in NSW. It is governed under its own legislation and cannot be bought or sold except under special provisions and in limited circumstances. It is also subject to special management provisions that determine how the land is used and managed.
Crown land is also unique in that it is subject to the Commonwealth native title and NSW Aboriginal land rights regimes, which give special rights and interests in Crown land to Aboriginal people. These rights and interests must always be considered when dealing with Crown land.
What do I need to consider when my development includes Crown land?
Crown land issues can arise when undertaking development, even where the development does not itself include Crown land. Often, a parcel of Crown land is adjacent to a development site and is used to access the site. In other cases, Crown land can form part of what would be a logical addition to the developable land. In these cases, property owners and developers may wish to buy or lease the Crown land to maximise the development potential of their sites.
Care needs to be taken if development plans are contingent on the acquisition or use of Crown land, due to the extremely limited circumstances where it can be purchased or obtained for private uses. Some considerations include:
Crown land is often reserved or dedicated for a public purpose
Most Crown land is reserved or dedicated for a public purpose and can only be used in a manner that is consistent with the reservation or dedication. Common reservations include reservations for public recreation, environmental purposes, conservation and sporting fields. There is a process for changing the reserved or dedicated purpose, but this is subject to a public interest test, is extremely rare and requires a Ministerial decision.
Crown land is subject to Commonwealth native title
Crown land and certain other Government-owned land can be subject to native title claims by Aboriginal people. Native title is the legal recognition of Aboriginal people's traditional rights and interests in land and waters held under traditional law and custom. Native title rights include customary rights such as the right to hunt, fish and hold corroborees, and may include rights to occupy land. The Federal Court determines where native title exists over Crown land. Unless there has been a determination by the court that native title has been extinguished, there is generally a presumption that native title rights continue to exist.
Development cannot occur on Crown land where it would be inconsistent with any native title rights. Similarly, land that is subject to native title, or is yet to have native title determined by the Federal Court cannot be sold.
Crown land is subject to land rights under the NSW Aboriginal land rights regime
Crown land is the only land in NSW where Aboriginal people can make land rights claims under the Aboriginal Land Rights Act 1983 – legislation that only applies in NSW. This legislation was set up to provide a means of compensating Aboriginal people for historic dispossession of land in NSW. It allows Aboriginal Land Councils to claim and be granted title to Crown land that is not being used or required for residential or essential public purposes.
Any piece of Crown land can be subject to a land claim and until that claim is determined the land cannot be sold or used in any way that could disturb the land. There is a large backlog of land claims awaiting determination by Crown Lands (over 35,000 claims are yet to be determined). This means that there are thousands of parcels of land across the State that cannot be sold, leased or otherwise used until the land claims are assessed – which is likely to take many years.
Available Crown land is sold in accordance with a planned sales program
Where land is not subject to native title or land claims and is not required for a public purpose, that land may be identified for sale by Crown Lands as part of its sales program. Outside of this fixed program, which is generally set at least 12 months in advance, requests for purchase are very unlikely to be considered unless an extremely high public benefit or immediate State need can be demonstrated.
What does this mean for me?
Owners and developers should be flexible with their development strategies if they involve Crown land. The special characteristics of Crown land mean that it is unlikely to be available for sale or private use, and the time taken to complete transactions will be protracted as the various rights and interests are investigated and dealt with by Crown Lands.
There may still be some good options to use Crown land, including through flexible lease and licence arrangements. There is also the potential for developers to contribute to the revitalisation and upkeep of Crown land as part of their development contributions for larger developments – Crown land is often the green, open space that can provide amenity for development sites.