Agricultural leases
An agricultural lease is any lease of land for the purpose of producing, growing, harvesting and farming of produce. There is an onus on the Registrar General to ensure that all agricultural leases define the land affected with an accuracy that is relative to the purpose and liability of the lease document.
NSW LRS has waived the requirements for a full plan of survey defining the site of the land to be leased where the lease is for 'banana plantation' or 'forestry purposes' over part of a Torrens Title. Such a plan may be lodged as a deposited plan or a plan annexed to a dealing (see below for specific plan requirements). The surveyor who prepares the plan must be satisfied that the accuracy of the plan provides adequate definition for the purposes of the lease.
NOTE: This concession only applies to a lease of land for banana plantation or for forestry lease purposes or other agricultural leases set out within this guideline. Any other lease affecting part of a parcel must comply with the requirements for Lease of land.
NOTE: These leases are distinguishable from a profit à prendre which is a right to use the produce of the land, not a lease of the land itself.
General Plan requirements
The plan defining the land to be leased in any head lease or sublease for agricultural lease purposes, whether prepared as an annexure to a dealing or as a deposited plan, must be prepared and signed by a land surveyor registered in NSW.
Where it is intended to register a series of leases based on the same plan it will be economical to either:
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lodge the plan as a deposited plan or
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lodge the plan as an annexure to the first lease and refer to that plan in subsequent leases as 'plan lodged with Lease No.' or
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lodge the plan as an annexure to a Request form 11R so as to place the plan on record as a reference source prior to lodgment of the first lease or
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lodge a memorandum with the plan annexed (compiled plan guidelines apply).
Banana plantation leases
Deposited plans or plans annexed to banana plantation leases need not comply with the provisions for compiled plans or the general requirements for plans annexed to leases, nor is there a need for a full plan of survey for the parcel.
Plan requirements for banana plantation leases
Head lease
A compiled plan, or a plan of survey prepared to a lesser standard of accuracy, depicting a parcel of land with multiple boundaries, will be acceptable for a banana lease provided it complies with the following requirements:
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the heading should read 'Plan of subdivision for banana plantation lease purposes'
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the plan must be prepared and signed by a registered surveyor. The plan should include the survey certificate in accordance with Schedule 6 Surveying and Spatial Information Regulation 2017, Form 2 “Certificate as to survey not requiring strict accuracy"
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the plan must be prepared as either:
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a plan of survey where each corner has been determined to a positional uncertainty of 3 metres or better (where it is considered to be the approximate the acceptable quality or standard of a coordinate obtained by current hand-held GNSS devices), or
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a plan compiled from aerial photographs
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the plan must define the land by full lines, bearings and distances and be mathematically correct
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the land affected should be tied into the title or current parcel boundary by bearings and distances
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references to all adjoining plans, including reference to lease plans which may have been lodged/or registered as deposited plans or as plans annexed to dealings, should be shown
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the plan must be signed by all parties pursuant to section 195D Conveyancing Act 1919
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if the term of the lease (including any option) is greater than five years it will constitute a subdivision as defined under section 6.2 Environmental Planning and Assessment Act 1979. In this case a Subdivision Certificate must be furnished endorsed by the local council or consent authority and a deposited plan of survey should be lodged. A plan annexed to a dealing can only be accepted where the lease including any option is not more than 5 years.
NOTE: The residue of the current parcel remaining after the lease need not be shown on a compiled plan. The residue will be required to be shown on a plan of survey.
NOTE: Any compiled plan prepared under this NSW LRS concession will not be available for the creation of folio(s) of the Register, whether or not supported by a completed Subdivision Certificate. Any request to create a folio of the Register for lots in the lease plan will be rejected. The plan will be noted "NOT TO BE USED FOR FOLIO CREATION".
Subleases
Lots that are subleased for banana plantation with areas of two hectares or less have the following concessions:
Lots that are subleased for banana plantations with areas larger than two hectares must comply with the same requirements as the head lease.
Forestry leases
Section 23J Conveyancing Act 1919 provides that a plan of subdivision for forestry lease purposes must have development consent to the subdivision. Any lease must be in terms of a whole lot in the lease plan and must not, together with any option of renewal, exceed 40 years, see section 23K Conveyancing Act 1919.
As distinct from forestry rights, which are profits à prendre, there have been various forestry schemes based on lease arrangements. State forests at one stage were proposing to lodge compiled plans of rectangular parcels of land. There is no current arrangement for the lodgment of forestry lease plans of this type withNSW LRS.
A plan for forestry lease purposes is not a current plan within the meaning of section 7A Conveyancing Act 1919 but land shown as a lot in the plan may be leased and the leasehold interest may be dealt with without contravening the provisions of that section, see section 7A(3)(b) Conveyancing Act 1919.
Plan requirements for forestry lease subdivisions
Head lease
The plan may be either a full plan of survey, a survey plan of lesser accuracy determined to a positional uncertainty of 3 metres or better, or a compiled plan. The plan requirements are set out below:
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the plan must comply with all Acts and Regulations (particularly the Conveyancing Act 1919, Conveyancing (General) Regulation 2018 and Surveying and Spatial Information Regulation 2017)
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the plan must be prepared on either of Plan form 1 (for plans prepared on A3 paper) or Plan form 2 (for plans prepared on A2 paper) and include an Administration Sheet Plan form 6A. All plan forms are available on the NSW LRS website under Deposited Plan Forms
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the plan must be prepared and signed by a registered surveyor. The plan should include the survey certificate in accordance with Schedule 6 Surveying and Spatial Information Regulation 2017, Form 2 “Certificate as to survey not requiring strict accuracy”
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the plan heading should read "Plan of subdivision for forestry lease purposes"
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the plan must must have a completed subdivision certificate being a subdivision consent in terms of section 23J Conveyancing Act 1919.
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lots to be leased must be connected to satisfactory definitions of the boundaries
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the residue of the title should not be shown as a separate lot
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any easements and restrictions on the use of land may be shown as proposed to be created on registration of leases
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s.88B easements, restrictions on use of land etc. will not apply
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folios of the Register will be created on registration of the plan.
When the leased area is divided into parcels of two hectares or less the internal lots may be defined for subleases.
Subleases
Lots that are subleased for forestry purposes with areas of two hectares or less have the following concessions:
Lots that are subleased for forestry purposes with areas larger than two hectares must comply with the same requirements as the head lease.
Aquaculture leases
The Fisheries Management Act 1994 provides for the registration of Oyster leases and other aquaculture leases under the provision of the Real Property Act 1900. Section 180 provides that any dealings with the lease once registered must be dealt with under the Real Property Act 1900. Section 169 indicates that the Minister may require that the lessee prepare a plan of survey defining the leased area. A lease of this nature must not exceed 15 years, see section 163 Fisheries Management Act 1994.
A plan for an aquaculture lease must define a parcel of “land” constituting part of the bed of a river, estuary or the Pacific Ocean. Such a lease will constitute a subdivision unless the intended term (plus any option for renewal) is five years or less. The plan must be prepared in accordance with the standard requirements for a deposited plan of subdivision (including a completed Subdivision Certificate unless an exemption is sought pursuant to section 23G Conveyancing Act 1919).
A plan for a lease with a term of five years or less must comply with the above requirements except that a Subdivision Certificate will not be necessary. A statement should be added to the plan indicating that the term of any lease must be five years or less.
NOTE: The boundaries of the new lot(s) may be also be defined by GNSS coordinates as per Surveyor Generals Directions No.13.
The plan will require the specific consent of Crown Lands and the Department of Primary Industries (formerly NSW Fisheries). As the fee of the parcel will be Crown Title land a completed CL45-11 document (which is prepared by Crown Lands) should be lodged with the plan directing the Registrar General to create a First Title in the name of the State of New South Wales. Following folio creation, an appropriate lease dealing may be lodged for registration.
All aquaculture lease plans must comply with the requirements of the Surveyor General’s Direction No 13, which can be found here.
Leases of dip sites
A lease of a new dip site or any alteration to a current site will require the lodgment of a new plan defining that site. The plan may be lodged as either:
The description in the lease should refer to the new plan.
Renewal of a dip site lease
A further lease of a dip site may refer to a plan annexed to the original lease or a deposited plan. The plan referenced may be:
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a plan of survey
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a plan bearing consent authority approval refiled as a deposited plan
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a plan bearing consent authority approval that has not been refiled or
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a compiled plan not bearing consent authority approval that satisfactorily defines the site.
A new plan defining the site is not required. The description in the further lease must refer to the plan annexed to the original lease or to the deposited plan.
Where a compiled plan does not have a consent authority approval and also does not satisfactorily define the site, a plan of survey must be lodged as a deposited plan with the stated purpose of 'lease'. The deposited plan must bear a statement by an officer of the Department of Primary Industries that the plan is a true copy of the plan lodged with the original lease. The description in a further lease must refer to the new deposited plan.
All NSW legislation can be accessed at www.legislation.nsw.gov.au/
Publish date: October 2023