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Permits to Diversify

 

Find out about the permits for pastoral and non-pastoral use, application process, approvals required, your obligations, and native title.

 

Types of permits available to pastoral lessees
Under section 106 of the Land Administration Act 1997 (WA), pastoral leases must not be used for purposes other than pastoral purposes, except in accordance with a Permit issued under Part 7 Division 5.
 
Permits can only be issued on approval from the Pastoral Lands Board to pastoral lessees’ seeking to carry out any other activity on the lease other than the primary pastoral use of grazing native vegetation with authorised stock.
 
Permits are not transferable to a third party and if the pastoral lease is sold, the Permit cannot be transferred to the new lessee. However, it may be possible for the new lessee to apply for a new Permit for the same activity under a ‘streamlined’ process (details available from the Pastoral Land unit).
 
Two types of Permits may be issued by the Pastoral Lands Board to the pastoral lease holder under the following sections of the Land Administration Act 1997:
 

1. Pastoral use permit

s.119 - Sowing of non-indigenous pastures

For the lessee to sow and cultivate specific varieties of non indigenous pasture on specified land area(s) under the lease. A permit under this section may include a permit for the sale of any produce of the pasture permitted. Please note: an approved pasture species list has been developed and pastoral lessees should contact their local Department of Agriculture and Food rangelands office for plant species advice prior to developing a Permit application.
 

s.120 - Agricultural uses of land under a lease

For the lessee to use specified land under the lease for crop, fodder, horticultural or other specified kind of agricultural production if the proposed use is reasonably related to the pastoral use of the land.
 

s.121 – Low-key pastoral-based tourism

To allow the pastoral lessee to use specific land area(s) for pastoral-based tourist activities of a specified kind if the activities will be purely supplementary to the pastoral use of the lease.
 

s.122A - Keep or sell prohibited stock

To keep prohibited stock on the land under a pastoral lease and/or sell prohibited stock. Prohibited stock are those classes of animals not ‘authorised’.
 
Authorised stock are controlled livestock managed according to industry codes of practice for husbandry and identification prescribed as:
 
  • Sheep (ovis aries)
  • Cattle (bos indicus, bos taurus)
  • Horses (equus caballas)
  • Goats (capra hircus)
  • Stock kept for domestic or household use.
 

2. Non-pastoral use permit

s.122 - Non-pastoral use of enclosed and improved land

The use of specified land under the lease for any non-pastoral purposes if the land has been enclosed or improved. An application must specify the use proposed, any facility proposed to be constructed, and the areas of land proposed to be used.
 
Permit application and assessment process
The current Land Administration Act 1997 (WA) permit application assessment process 4-6 months with exceptions depending on the complexity of the Permit proposal. This period includes:
 
  1. Liaison with lessee on the submitted Permit application quality, additional information if required and preparing documents for referral – up to 28 days depending on the lessee's availability
  2. Referral of Permit application and draft conditions of Permit, to government agencies – 28 days
  3. Compilation of agency and lessee responses – up to 14 days (may require further liaison with agencies or lessee to clarify feedback received)
  4. Presentation to the Pastoral Lands Board – up to 28 days (depending on sitting of the Board or the earliest an Out-of-Session Board teleconference)
  5. Post Board decision meeting – document preparation – up to 14 days
  6. Offer of a Permit and Conditions to the pastoral lessee requiring the lessee to accept, sign and return by facsimile to PLBU – up to 28 days (dependent on lessee’s response time)
  7. If the lessee accepts the offer of a Permit and the conditions, the Permit is issued.
As such the total period for the Permit application assessment and issuing if approved by the Pastoral Lands Board, could be up to 22 weeks dependent on:
 
  1. The quality and completeness of the Permit application submitted by the lessee
  2. The complexity of the Permit proposal
  3. The response timeframes by both the lessee and agencies during the process.
 
Government approvals required
Section 117 of the Land Administration Act 1997 (WA) stipulates that the Pastoral Lands Board is not to issue a permit unless environmental conservation requirements are satisfied.
 
This section of the Act lists the common legislation in addition to expressly stating that this requirement is for ‘any other written law relating to environmental conservation which is applicable to the land under the lease.’
 
As such there is a requirement that any additional government approvals that may be required for the proposed activity, must also be secured by the pastoral lease holder prior to commencement of an activity permitted by the Pastoral Lands Board. These additional government approvals often include but are not limited to:
 

Planning and/or construction approval

Local Government Authority approval(s) may be required where a permit application involves:
 
  • Building construction or addition to an existing building
  • Creation of a new supplementary business
  • Preparation of food for the public
  • Creation of additional waste.
 
Failure to do so may result in penalties applied under local By-Laws.
 
Contact details for all Local Government Authorities is are available in the Regions section. Simply select your region and go to ‘Contacts’.
 

Permit to clear leased land and/or remove native vegetation

If the application involves clearing a portion of land, a clearing permit is required from the Department of Environment Regulation.
 
There are substantial penalties under the Environmental Protection Act 1986 for clearing land without a permit.
 
For more information contact the Department of Environment Regulation.
 

Licence for water allocation and/or extraction

The Department of Water grants licenses to take water under the Rights in Water and Irrigation Act 1914. License applications are required to take water, interfere with bed and banks of a watercourse, or construct a well. In granting licenses, consideration is given to both the short and long-term economic, environmental and social impacts.
 
Water licensing is active in all proclaimed areas and for all artesian groundwater wells throughout the State. There are 45 groundwater and 22 surface water management areas proclaimed under the Rights in Water and Irrigation Act 1914.
 
For more information contact Department of Water.
 

Licence for aquaculture

Aquaculture on pastoral leases requires a licence from the Department of Fisheries and is assessed as a ‘Non-freehold Land Site’. Applications must be made on a specified form and submitted to the licensing branch of the Department of Fisheries.
 
For more information contact the Department of Fisheries.
 
Pastoral lessees' obligations

Conditions of permit

A Permit is not issued unless the pastoral lessee has acknowledged in writing the conditions of Permit. Most conditions are standard and pastoral lessees must abide by them. Failure to do so may result in the issue of a Default Notice which may result in a fine and/or forfeiture of the pastoral lease. Persons authorised by the Pastoral Lands Board to inspect pastoral leases may inspect Permit activities to determine whether conditions of Permit are being complied with.
 

Permit rent

The standard pastoral lease annual rental is for the right to graze the native vegetation. As permit activities are additional to this, they may incur additional Permit annual rental. Any additional permit annual rental is calculated by Valuer Generals Office at Landgate and charged separately to the standard annual pastoral lease rental.
 

Annual Returns

A section of the ‘Annual Return of Livestock and Improvements’ submitted by the pastoral lessee by 31 December of each year, requires information about Permit activities. 
 

Proposals to expand or amend permit activity

Permits are issued for specific activities over a specific area of the lease. Should you want to change the size, location or nature of the activity (including using different plant species for crop and pasture Permit activities), you must contact us to discuss the process for obtaining a new permit. Failure to do so may result in the issue of a Default Notice which may result in a fine and/or forfeiture of the pastoral lease.
 

Operation of the permit activity

Permits are not transferable to a third party and permit activities may only be conducted by a pastoral lessee or their employees. Therefore, if you have a permit, as the pastoral lessee you must be in control of the permitted activity. If the pastoral lease is sold, the permit cannot be transferred to the new lessee. However, it may be possible for the new lessee to apply for a new permit for the same activity through a ‘streamlined’ process, under which a permit may be issued within a shorter timeframe than usual.
 

Currency of the Permit

We will endeavour to remind lessees three months prior to the expiry of their permit. However, we recommend you contact us well before your permit expiry date. The onus is on the pastoral lessee to ensure that the Permit is current and has not expired. Reminders are not sent. Failure to do so may result in the issue of a Default Notice which may result in a fine and/or forfeiture of the pastoral lease.
 
Native Title
The issuing of any the Land Administration Act 1997 (WA) (Land Act) permit may entail a ‘future act process’ if the act of issuing that permit affects the rights and interests of native title.
 
‘Subdivision G – Future acts and primary production’ of the Native Title Act 1993 (Cwlth) (Native Title Act), section ‘24GB – Acts permitting primary production on non-exclusive agricultural and pastoral leases’, sets out those activities that may not entail a ‘future act’ under this Act.
 
Generally (but not exclusively), Permits for pastoral use purposes issued under sections 119, 120, 121 and 122A of the Land Act, do not entail a ‘future act’ and as such are permitted under the Native Title Act. Non-pastoral activity however covered by section 122 of the Land Act, does require scrutiny to determine its native title status.
 
Given the complexity of the Native Title Act when it is considered that there may be a native title impact, permit applications are referred by us for legal advice.
 
If a permit application is found to be impacted by the Native Title Act, then we can work with you to negotiate and resolve if possible the native title requirements. However such processes 2-3 years in duration.
 
  
More information and advice on permits to diversify
Technical and business planning advice is available to pastoral lessees from a number of sources, depending on the nature of the proposed activity.
 

Pastoral use permits

For advice related to s.119 - Sowing of non-indigenous pastures, s.120 - Agricultural uses of land under a lease, and/or s.122A - Keep or sell prohibited stock, contact:
 
 
  • Department of Agriculture and Food
  • Association of Australian Agricultural Consultants (WA).
    The use of pastoral (plus agricultural and horticultural) consultants is a growing trend amongst pastoral lessees and their use can prove to be beneficial well beyond station and livestock management planning. Information on the range of consultants available in Western Australia can be found on the Association of Australian Agricultural Consultants (WA) website.
 
For advice related to s.121 – Low-key pastoral-based tourism contact:
 
 

Non-pastoral use permits

For advice related to s.122 - Non-pastoral use of enclosed and improved land, contact:
 
 

All other enquiries

For assistance in regards to the eligibility of a proposed activity and the required application process for Permits available to pastoral lessees’ under Part 7 Division 5 of the Land Administration Act 1997, please contact us.
  
Alternative tenure options
Where proposed activities over land comprised in a pastoral lease are not eligible under a Permit, the following alternative tenures under the Land Administration Act 1997 (WA) may be considered:
 

Land Tenure Pathway for Irrigated Agriculture

Section 79 – General Lease

The Minister for Lands may grant a Lease over a parcel of State (Crown) land for any purpose and subject to any conditions. The Minister may require a performance bond for any such lease. For a section 79 lease to be issued, the affected land would need to be surrendered out of the relevant pastoral lease and legal access be determined.
 
A general lease may contain conditions including:
 
  1. Option to renew (or extend)
  2. Option to purchase the fee simple in the State (Crown) land that is the subject of the lease.
In line with National Competition Policy, preference is for competitive release, but under certain circumstances we may enter into a private treaty arrangement.
 
In the assessment of a general lease application, it is not assumed that a pastoral lessee of the land to be excised, is the most appropriate operator of the activity proposed and to this extent a justified business case and development plan is required. We can advise you on whether this applies to your proposal.
 

Section 83 – Lease for the benefit of Aboriginal people

Section 83 empowers the Minister to grant leases for a fixed term or in perpetuity for the purpose of advancing the interests of any Aboriginal person or persons to that person or persons or an approved body corporate (as defined in section 83(3)). The affected land would need to be surrendered out of the relevant pastoral lease prior to a section 83 lease being granted.
 

Applying for a lease – what is involved

Depending on the complexities of the proposal, the time taken to finalise each lease or licence varies considerably from case to case with determination factors including the following:
 
  • Consultation with a range of planning and regulatory bodies (e.g., Department of Environment Regulation, Western Australian Planning Commission, Department of Mines and Petroleum, relevant local governments and relevant community groups)
  • Impact of the new tenure on the commercial production area of the remaining pastoral lease; survey and/or plan production
  • Determination of a legal access route if the area to be excised is not adjacent to a public road;
  • Assessment of and agreement in relation to, rental (new tenure is often valued higher than a pastoral lease)
  • Procedural requirements of the Native Title Act 1993 (Cwlth). This may include a requirement for the proponent to pay any negotiated costs
  • Changes to existing tenures
  • An examination of the broader policy and legal issues relevant to the proposal.
 
We can advise you on these matters as they relate to your proposal.
 

Licence co-existence with pastoral leases

Section 91 – Licence

The Minister may grant a licence that is a contractual, non-exclusive right authorising a use of land to do an act which would otherwise be a trespass or illegal. The Minister will determine the fees and conditions to be applied and may fix or extend the duration of such agreements.
 
Licences can co-exist with pastoral leases and with the agreement of the pastoral lessee, can be held by third parties. Recent examples of licences issued over specified areas of pastoral leases have included walking tours.

 

Contact Us

For further information please contact us.