Transfer of Land (Alpine Resorts) Act 2006

i Transfer of Land (Alpine Resorts) Act 2006 Act No. 39/2006 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1. Purposes 1 2. Commencement 2 PART 2—AMENDMENTS TO THE TRANSFER OF LAND ACT 1958 3 3. Abolition of requirement for Crown leases to be in duplicate 3 4. Creation of folio of the Register and certificate of title 3 5. Insertion of new section 67A 4 67A. Variation of registered leases 4 6. Bankruptcy of lessee 4 7. Substitution of section 69 5 69. Surrender of lease 5 8. Recovery of possession by lessors 6 9. Transitional provision—duplicate Crown grants 6 127. Duplicate Crown grants for Crown leases 6 PART 3—AMENDMENTS TO THE ALPINE RESORTS (MANAGEMENT) ACT 1997 7 10. Definition 7 11. Insertion of new section 7A 7 7A. Leasing of land in strata 7 12. Insertion of new section 8A 11 8A. Licence for strata of land 11 13. Insertion of communications systems in section 9 13 ═══════════════ ENDNOTES 14 -- 1 of 15 -- 1 Transfer of Land (Alpine Resorts) Act 2006 † [Assented to 20 June 2006] The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY 1. Purposes The purposes of this Act are to— (a) amend the Transfer of Land Act 1958 to make further provision in relation to leases; and Victoria No. 39 of 2006 -- 2 of 15 -- Part 1—Preliminary Transfer of Land (Alpine Resorts) Act 2006 Act No. 39/2006 2 (b) amend the Alpine Resorts (Management) Act 1997 to make further provision in relation to the powers of Alpine Resort Management Boards to lease and licence Crown land; and (c) make other minor amendments to those Acts. 2. Commencement This Act comes into operation on the day after the day on which it receives the Royal Assent. __________________ s. 2 -- 3 of 15 -- Part 2—Amendments to the Transfer of Land Act 1958 Transfer of Land (Alpine Resorts) Act 2006 Act No. 39/2006 3 PART 2—AMENDMENTS TO THE TRANSFER OF LAND ACT 1958 3. Abolition of requirement for Crown leases to be in duplicate For section 8(2) of the Transfer of Land Act 1958 substitute— "(2) The Crown grant of that land must be delivered to the Registrar.". 4. Creation of folio of the Register and certificate of title (1) Insert the following heading to section 28 of the Transfer of Land Act 1958— "Creation of folio of the Register and certificate of title". (2) For section 28(1) and section 28(1A) of the Transfer of Land Act 1958 substitute— "(1) On receipt of a Crown grant in fee or by way of a perpetual lease or a lease for years, in accordance with section 8, the Registrar must— (a) register the Crown grant; and (b) create a folio of the Register for the land to which the Crown grant relates; and (c) cancel the Crown grant.". (3) In section 28(1B) of the Transfer of Land Act 1958— (a) for "(1A)" substitute "(1)"; (b) after "as contained in the Crown grant" insert "or Crown lease (as the case requires)". See: Act No. 6399. Reprint No. 14 as at 1 January 2003 and amending Act Nos 23/2004, 30/2004, 47/2004, 106/2004, 108/2004, 10/2005, 18/2005, 71/2005 and 88/2005. LawToday: www.dms. dpc.vic. gov.au s. 3 -- 4 of 15 -- Part 2—Amendments to the Transfer of Land Act 1958 Transfer of Land (Alpine Resorts) Act 2006 Act No. 39/2006 4 (4) Section 28(2) of the Transfer of Land Act 1958 is repealed. 5. Insertion of new section 67A After section 67 of the Transfer of Land Act 1958 insert— "67A. Variation of registered leases (1) The registered proprietor of a lease of freehold land or of a perpetual Crown lease or of a Crown lease for years may, with the consent in writing of the lessor, vary the covenants or conditions of that lease by an instrument of variation in an appropriate approved form. (2) A variation under sub-section (1) is not valid and binding against the registered proprietor of any mortgage or charge over the lease unless the mortgagee or chargee has consented in writing to the variation. (3) For the purposes of this section the variation of a lease does not include any of the following— (a) a transfer or assignment of a lease; (b) an alteration of— (i) the term of a lease; or (ii) an area of leased land; or (iii) the parties to a lease.". 6. Bankruptcy of lessee (1) In section 68(1) of the Transfer of Land Act 1958, after "registered proprietor of a lease" insert "of freehold land or of a perpetual Crown lease or of a Crown lease for years". s. 5 -- 5 of 15 -- Part 2—Amendments to the Transfer of Land Act 1958 Transfer of Land (Alpine Resorts) Act 2006 Act No. 39/2006 5 (2) In section 68(2) of the Transfer of Land Act 1958, after "The lessor" insert "of freehold land or of a perpetual Crown lease or of a Crown lease for years". 7. Substitution of section 69 For section 69 of the Transfer of Land Act 1958 substitute— "69. Surrender of lease (1) The registered proprietor of a lease of freehold land or of a perpetual Crown lease or of a Crown lease for years may, with the consent of any mortgagee and of the holder of any charge over the lease, surrender the lease by an instrument in an appropriate approved form. (2) Sub-section (1) is in addition to any other method of determining the operation of a lease. (3) On lodgement of an instrument in an appropriate approved form under sub- section (1), the Registrar shall make on the relevant folio of the Register a recording of the surrender and, on the making of the recording, the estate and interest of the lessee vests— (a) in the case of the surrender of a perpetual Crown lease or a Crown lease for years, in the Crown; or (b) in any other case, in the registered proprietor of the land.". s. 7 -- 6 of 15 -- Part 2—Amendments to the Transfer of Land Act 1958 Transfer of Land (Alpine Resorts) Act 2006 Act No. 39/2006 6 8. Recovery of possession by lessors In section 70 of the Transfer of Land Act 1958, for "The Registrar" substitute "In the case of any lease of freehold land or any perpetual Crown lease or any Crown lease for years, the Registrar". 9. Transitional provision—duplicate Crown grants After section 126 of the Transfer of Land Act 1958 insert— "127. Duplicate Crown grants for Crown leases Sections 8 and 28, as in force immediately before the commencement of sections 3 and 4 of the Transfer of Land (Alpine Resorts) Act 2006, continue to apply to any Crown grant by way of a perpetual lease or a lease for years issued before that commencement as if those sections had not been enacted.". __________________ s. 8 -- 7 of 15 -- Part 3—Amendments to the Alpine Resorts (Management) Act 1997 Transfer of Land (Alpine Resorts) Act 2006 Act No. 39/2006 7 PART 3—AMENDMENTS TO THE ALPINE RESORTS (MANAGEMENT) ACT 1997 10. Definition Insert the following definition in section 3 of the Alpine Resorts (Management) Act 1997— ' "VicRoads" has the same meaning as in the Road Management Act 2004;'. 11. Insertion of new section 7A After section 7 of the Alpine Resorts (Management) Act 1997 insert— "7A. Leasing of land in strata (1) A lease under section 7 may be granted— (a) without being limited to a particular stratum of any land in the resort; or (b) for a stratum of land in the resort. (2) The Board of an alpine resort must not grant a lease under section 7 for a stratum of land in the resort unless the Board— (a) has first consulted the Minister administering the Planning and Environment Act 1987, where a planning scheme applies to the stratum; and (b) is satisfied that— (i) each lessee for the time being under the lease can obtain reasonable access to and use of the land to be leased; and See: Act No. 89/1997. Reprint No. 2 as at 1 November 2004 and amending Act No. 108/2004. LawToday: www.dms. dpc.vic. gov.au s. 10 -- 8 of 15 -- Part 3—Amendments to the Alpine Resorts (Management) Act 1997 Transfer of Land (Alpine Resorts) Act 2006 Act No. 39/2006 8 (ii) the granting of the lease would not interfere with the exercise of rights by the registered proprietor, lessee or licensee of other land; and (iii) provision has been made (in the lease or otherwise) for any necessary rights of support of the stratum or other land or of any building or structure erected or to be erected on those lands; and (iv) provision has been made (in the lease or otherwise) for any necessary rights of passage or provision of services (including drainage, sewerage, or the supply of water, gas, electricity or communications systems) to or through the stratum, where those rights are necessary for the reasonable enjoyment of the stratum or other land. (3) In determining whether the requirements of sub-section (2)(b)(i), (iii) and (iv) are met the matters which the Board may take into account include, but are not limited to, any of the following— (a) the fact that the proposed lessee is the owner, lessee or occupier of land that can be used for access to or support of the stratum or for the provision of services to the stratum or through it to other land; s. 11 -- 9 of 15 -- Part 3—Amendments to the Alpine Resorts (Management) Act 1997 Transfer of Land (Alpine Resorts) Act 2006 Act No. 39/2006 9 (b) the fact that the lessee has obtained rights over neighbouring land sufficient to provide access to or support of the stratum, or for the provision of services to the stratum or through it to other land whether, those rights are proprietary interests or not, and however they are created; (c) the extent to which the rights referred to in paragraph (b) are capable of being enjoyed by the lessee's successors in title. (4) The granting under this subdivision of a lease of a stratum of Crown land is conclusive proof of compliance with sub- section (2) in respect of the lease. (5) A lease under section 7 may be granted for a stratum of Crown land— (a) over or under land that is— (i) shown as a road on a map or plan kept in the Central Plan Office; or (ii) proclaimed as a road or public highway under an Act; or (iii) reserved as a road; or (iv) constructed or used as road in the resort— but not on the level at which the road is constructed; or (b) over or under land that is a freeway or an arterial road within the meaning of the Road Management Act 2004, if the consent of VicRoads has first been obtained, but not on the level at which the freeway or arterial road is constructed. s. 11 -- 10 of 15 -- Part 3—Amendments to the Alpine Resorts (Management) Act 1997 Transfer of Land (Alpine Resorts) Act 2006 Act No. 39/2006 10 (6) Without limiting section 7(1), the conditions, covenants, reservations, restrictions and exceptions in a lease for a stratum of Crown land in an alpine resort may include, but are not limited to, provision for any of the following— (a) access to and use of the stratum; (b) support of the stratum and of any building or structure erected or to be erected on it; (c) access through the stratum to other land; (d) support of other land; (e) any necessary rights for the passage or provision of services to or through the stratum; (f) the prevention of interference by the lessee with the use or enjoyment of other land; (g) the prevention of interference by the lessee with the use of any road by the public and the protection and maintenance and management of any road above or below the stratum. (7) Without limiting the circumstances in which a lease may be declared forfeit, a lease of a stratum of Crown land in an alpine resort may be declared forfeit by the Board if the Board is satisfied that, the lessee cannot have reasonable access to the leased stratum or there are no rights of support for the stratum or no necessary rights for the provision of services to or through the stratum.". s. 11 -- 11 of 15 -- Part 3—Amendments to the Alpine Resorts (Management) Act 1997 Transfer of Land (Alpine Resorts) Act 2006 Act No. 39/2006 11 12. Insertion of new section 8A After section 8 of the Alpine Resorts (Management) Act 1997 insert— "8A. Licence for strata of land (1) A licence granted by the Board of an alpine resort over land that is in the resort may be granted— (a) without being limited to a particular stratum; or (b) for a stratum of Crown land. (2) A licence for a stratum of land in an alpine resort must not be granted unless the Board granting the licence— (a) has first consulted the Minister administering the Planning and Environment Act 1987, where a planning scheme applies to the stratum; and (b) is satisfied that— (i) the licensee can obtain reasonable access to and use of the land to be licensed; and (ii) the granting of the licence would not interfere with the exercise of rights under any other licence for a stratum or for land. (3) The matters which must be taken into account under sub-section (2)(b)(i) include but are not limited to the following— (a) the fact that the stratum is to be used as a crossing over or tunnel under the surface of the land, for the purpose of passing between 2 pieces of land owned s. 12 -- 12 of 15 -- Part 3—Amendments to the Alpine Resorts (Management) Act 1997 Transfer of Land (Alpine Resorts) Act 2006 Act No. 39/2006 12 or occupied by the applicant for the licence; (b) the fact that the stratum is to be used as a crossing over or tunnel under the surface of land and that the licensee has obtained rights of access to neighbouring land sufficient to enable the licensee to use the crossing or tunnel, whether those rights are interests in land or are created by agreement or otherwise; (c) if the licensee proposes to erect a building or structure, the fact that provision has been made for the support of the building or structure, whether by the creation of proprietary interests or rights under an agreement, or in any other way. (4) A licence over a stratum of land in an alpine resort may be granted— (a) over or under land that is— (i) shown as a road on a map or plan kept in the Central Plan Office; or (ii) proclaimed as a road or public highway under an Act; or (iii) reserved as a road; or (iv) constructed or used as road in the resort— but not on the level at which the road has been constructed; or (b) over or under land that is a freeway or an arterial road within the meaning of the Road Management Act 2004, if the consent of VicRoads has first been obtained, but not on the level at which s. 12 -- 13 of 15 -- Part 3—Amendments to the Alpine Resorts (Management) Act 1997 Transfer of Land (Alpine Resorts) Act 2006 Act No. 39/2006 13 the freeway or arterial road has been constructed. (5) A licence for a stratum of Crown land in an alpine resort is subject to any conditions, covenants, reservations, restrictions and exceptions determined by the person granting the licence that are specified in the licence, including, but not limited to— (a) access to and use of the stratum; or (b) support of any building or structure to be erected on the stratum; or (c) the prevention of interference by the licensee with the exercise of rights under licence for other strata or other land; or (d) the prevention of interference by the licensee with the use of any road by the public. (6) Without limiting the circumstances in which a licence may be declared forfeit, a licence for a stratum of Crown land in an alpine resort may be declared forfeit by the Board if the Board is satisfied that, because an interest, right or power has ceased to have effect or no longer exists or for any other reason, the licensee cannot have reasonable access to or use of the stratum covered by the licence.". 13. Insertion of communications systems in section 9 In section 9(4)(d) of the Alpine Resorts (Management) Act 1997 for "telephone" substitute "communications systems". ═══════════════ s. 13 -- 14 of 15 -- Transfer of Land (Alpine Resorts) Act 2006 Act No. 39/2006 14 ENDNOTES † Minister's second reading speech— Legislative Assembly: 4 May 2006 Legislative Council: 13 June 2006 The long title for the Bill for this Act was "to amend the Transfer of Land Act 1958 and the Alpine Resorts (Management) Act 1997 to make further provision in relation to leases and licences and for other purposes." Endnotes -- 15 of 15 --