An agricultural lease is any lease of land for the purpose of production, 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 agreed to waive 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 Produce' over part of a Torrens title. Such a plan may be lodged as a deposited plan or a plan annexed to a dealing. The surveyor who prepares the plan must be satisfied that the accuracy of the plan provides adequate definition against all title and property issues.
Note 1 This concession only applies to a lease of land for Banana Plantation or Forestry Produce lease purposes. Any other lease affecting part of a parcel must comply with the requirements for Lease of land.
Note 2 A Profit à Prendre is a right to use the produce of the land, not a lease of the land itself.
The plan defining the land to be leased in any head lease or sub-lease 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:
- lodge the plan as a deposited plan, or
- 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
- lodge the plan as an annexure to a Request form 11R (PDF 135 KB) so as to place the plan on record as a reference source prior to lodgment of the first lease.
Banana plantation leases
Deposited plans or plans annexed to Banana Plantation leases need not comply with the general provisions for compiled plans. Nor is there a need for a plan of survey for the parcel.
A compiled plan for Banana Plantation lease, depicting a parcel of land with multiple boundaries, will be acceptable to NSW LRS providing it complies with the following guidelines:
- the heading should read 'Plan of subdivision for Banana Plantation lease purposes'.
- must be prepared and signed by a registered surveyor. The surveyors declaration must clearly indicate the method used to define the boundaries. If a pre-printed plan form is used the surveyors declaration should be ruled through.
- must be prepared either:
- in accordance with cl.9 Surveying and Spatial Information Regulation 2012, with an accuracy of +/- 5 metres (for this purpose a hand held Global Positioning System Receiver may be used), or
- from aerial photographs.
- must define the land by full lines, bearings and distances and be mathematically correct
- the land affected should be tied into the title or current parcel boundary by bearings and distances
- references to all adjoining plans, including reference to lease plans which may have been lodged as deposited plans or as plans annexed to dealings, should be shown
- should been signed by all parties pursuant to s.195D Conveyancing Act 1919
- if the term of the lease is greater than five years it will constitute a subdivision under s.7A(3) Conveyancing Act 1919. In this case a subdivision certificate should be furnished endorsed by the local council or consent authority.
Note 1 The residue of the current parcel identity 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 2 Any compiled plan prepared under the NSW LRS concession will not be available for Certificate of title issue, whether or not supported by a completed subdivision certificate. Any request to issue a title for lots in the lease plan will be rejected. The plan will be noted "NOT TO BE USED FOR TITLE ISSUE".
Division 3C has been added to Part 2 Conveyancing Act 1919 permitting subdivisions to allow leases for forestry purposes see Schedule 1 Land Titles Legislation Amendment Act 2001. 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 s.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 arrangement for the lodgment of forestry lease plans.
The plan is not a current plan within the meaning of Section 7A Conveyancing Act 1919 (formerly s.327AA Local Government 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 s.7A(3)(b) Conveyancing Act 1919.
Plan requirements for Forestry Lease subdivisions
The plan may be either a compilation or survey and should:
- comply with all Acts and Regulations [particularly the Conveyancing Act, 1919, Conveyancing (General) Regulation 2013 and Surveying and Spatial Information Regulation 2012]
- be prepared on either of Plan form 1 (PDF 35KB) or Plan form 2 (PDF 37KB) and include an administration sheet Plan form 6B 2012 (PDF 126KB). All plan forms are available on this website.
- have a heading reading "Plan of subdivision for Forestry Lease purposes"
- have subdivision consent in terms of s.23J Conveyancing Act 1919 lots to be leased must be connected to satisfactory definitions of the boundaries
- the residue of the title should not be shown as a separate lot
- easements may be shown as proposed to be created on registration of leases
- s.88B easements, restrictions on use of land etc. will not apply
- on registration of the plan no title will be created, a message will be shown in ITS stating:
"DP................ is a subdivision for lease purpose pursuant to Division 3C Conveyancing Act 1919. Fee is in ............ . Leasehold title may issue on registration of lease".
When the leased area is divided into parcels of 2 hectares or less the internal lots may be defined as for sub-leases below.
Lots that are sub-leased for Forestry Produce with areas 2 hectares or less have the following concessions:
- a surveyor may define lots to be sub-leased by either:
- full dimensions, or
- part dimensions and co-ordinates for the corners, or
- co-ordinates for the corners of blocks of parcels of a stated size eg "lots x to y inclusive are all 100m x 100m, or
- traverse lines for natural features, or
- any combination of the above.
- provided the site and location of all lots to be sub-leased can be determined to be within the area of the head lease.
Lots that are sub-leased for Forestry Produce with areas larger than 2 hectares must comply with the same requirements as the head lease.
Section 180 Fisheries Management Act 1994 provides for the registration of Oyster Lease and other Aquaculture Leases under the provisions of 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.
Any 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 or exemption pursuant to s.23G(b) Conveyancing Act 1919).
A plan for a lease with a term of five years or less must comply with the above requirements with the exception 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 G.N.S.S. co-ordinates in accordance with the provisions of the Surveying and Spatial Information Regulation 2012.
The plan will require the specific consent of Crown Lands and NSW Fisheries. As the fee of the parcel will be Crown Title land a completed CL45-11 document 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 title creation an appropriate lease dealing may be lodged for registration.
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:
- a compiled plan annexed to the lease, or
- a deposited plan of survey for lease purposes.
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. The annexed plan may be:
- a plan of survey
- a plan bearing consent authority approval refiled as a deposited plan
- a plan bearing consent authority approval that has not been refiled, or
- 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 not bearing consent authority approval 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 will bear a statement by an officer of the Department of Agriculture 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.