On 11 October 2021, the Real Property Amendment (Certificates of Title) Act 2021 commenced, which abolished the Certificates of Title (CTs) and the control of the right to deal (CoRD) framework. All existing CTs have been cancelled and CTs will no longer be issued. Existing CTs will not need to be produced, and CoRD holder consent will not be required, for a dealing or plan to be registered. All existing Guidelines subject to this change are currently being reviewed and will be updated to reflect these changes. For further information regarding the abolition of CTs, please see https://www.registrargeneral.nsw.gov.au/property-and-conveyancing/eConveyancing/abolition-of-certificates-of-title

Forestry covenants

A forestry right is defined in section 87A Conveyancing Act 1919 and refers to an interest in land where a person is given the right to access land to establish, maintain and harvest a crop of trees. The forestry right may also include the right to construct and use such buildings, works and facilities as may be necessary to establish, maintain and/or harvest the trees. A forestry right can also mean a carbon sequestration right in respect of the land.

A forestry covenant is also defined in section 87A Conveyancing Act 1919 and means a covenant that is incidental to a forestry right and includes any such covenant that imposes obligations requiring:

  • the construction and maintenance of access roads within the land
  • the erection and maintenance of fencing on the land
  • the provision and maintenance of water supplies within the land
  • the provision of access to or the maintenance of trees or forests on land that is the subject of any carbon sequestration right or
  • the ownership of any tree or trees on land that is the subject of a forestry right to be vested in the person who owns the forestry right

or imposes any term or condition with respect to the performance of or failure to perform any such obligation.

  • See also section 88EA Conveyancing Act 1919.

Creation

A forestry right may be created by Transfer Creating Profit à Prendre or Forestry Right form 01TH or in an Old System deed.

A forestry covenant can be created by:

  • a deed registered in the General Register of Deeds (Old System) or
  • section 88B instrument or
  • in an annexure to the instrument creating the forestry right.

Requirements

A forestry covenant must:

  • define the site of the forestry right. If a plan is required it may be a compiled sketch plan annexed to a dealing or deed or a deposited plan of partial survey and
  • specify the particulars of the covenant.

Variation and Release

A release of forestry covenant must be executed by the persons entitled to enforce the covenant. A variation of forestry covenant must also bear written consent of each person against whom the forestry covenant is enforceable.

For Torrens title land a Request form 11R may be used. For Old System land a deed should be registered in the General Register of Deeds.

A forestry covenant may also be extinguished or modified by Court Order. For Torrens title land a Release or Extinguish a Positive Covenant form 13PRE (where extinguished) or a Variation or Modification of Positive Covenant form 13PVM (where modified) by the court pursuant to section 89(8) Conveyancing Act 1919 must be used.

NOTE:  There is no provision in the Conveyancing Act 1919 for a forestry covenant to be varied or released in a section 88B instrument.

All NSW legislation can be accessed at www.legislation.nsw.gov.au/

 

Publication Date: September 2024