Not every use of government land needs a lease. Part XVI of the Land Act 1996 provides a lighter instrument for temporary use.
Section 125(1) — the four purposes
The Minister or his delegate may grant a licence in the approved form to a person to enter on Government land for one or more of:
(a) to graze stock, or a specified kind of stock;
(b) to strip, dig and take away any valuable material or substance;
(c) for fishermen’s residences and drying grounds; or
(d) for any other temporary purpose approved by the Minister.
Paragraph (d) is the flexible one, but note the word temporary. A licence is not a route to long-term occupation; that is what a State lease is for.
Paragraph (b) is the commercially significant one — gravel, sand, stone and similar materials for construction.
Section 125(2) — zoning still applies
A licence shall not be granted for a purpose that would contravene zoning requirements under the Physical Planning Act 1989, any other physical planning law, or any law relating to the use, construction or occupation of buildings or land.
The same restriction as section 67 for leases. A licence is not a way around planning control.
Section 125(3) — what the licensee may do
A licence may be granted subject to such conditions as the Minister or granting officer thinks proper, and, subject to those conditions, empowers the licensee:
- (a) to make temporary improvements and do such things on the land as are necessary or convenient for the purposes of the licence; and
- (b) to remove such of those improvements as are severable on or before the termination of the licence, doing as little damage as may reasonably be to the land.
Paragraph (b) uses the identical wording to section 119(6) for a surrendered lease. Remove severable improvements on or before termination — there is no right of entry afterwards, and no entitlement to be paid for anything left behind.
Section 125(4) — one year maximum
A licence continues in force for a period, not exceeding one year, specified in the licence. That is the essential difference from a lease, and it is why a licence should not be relied on for anything requiring capital investment.
Section 125(5) — royalties on material taken
Where a licence is issued for the section 125(1)(b) purpose — stripping, digging and taking away valuable material — the licence is subject, in addition to or in substitution for the prescribed fee, to the payment of such royalties (if any) on the material or substance stripped, dug or taken away, and to such restrictions and conditions as are prescribed or as seem proper to the Minister or granting officer.
Royalty may replace the licence fee or sit on top of it, and the rate and basis are set in the licence rather than in the Act. Establish what substances attract royalty, at what rate, how it is measured, and when it is payable — before you move any material.
Note also that a licence is not a mining authority. Under section 5 of the Mining Act 1992 all minerals are the property of the State, and mining requires a tenement under that Act.
Section 125(6) — revocation
A licence granted under Division 1 may be revoked by the Minister for failure to comply with, or for a contravention of, the conditions of the licence.
Note what is absent: there is no show-cause procedure equivalent to section 122(2) for forfeiture of a lease. Revocation is a considerably lighter process, which is another reason a licence is a weak foundation for investment. The principles of natural justice under section 59 of the Constitution nevertheless apply to the decision.
Division 2 — licences over resumed land
Section 126 addresses a specific and humane situation: land the State has acquired but is not yet using.
Notwithstanding any other law, the Minister or an authorised officer may grant a licence to the person from whom the land was acquired under this Act or a repealed Land Act — or, where that person does not apply, to some other person — allowing them to use the land for the purpose for which it was used immediately before the date of acquisition, or any other purpose.
Two differences from a Division 1 licence:
- the licensee may make improvements and do such things as are necessary or convenient for the purpose — not limited to temporary improvements; and
- it continues in force for such period as is specified in the licence — no one-year cap.
It is subject to payment of the amounts section 126(4) specifies.
Compulsory acquisition vests the land in the State immediately and converts your interest into a right to compensation. Section 126 is the mechanism that can let you keep farming or occupying in the interim. It is worth asking for — and note that the former owner has first refusal in the drafting.
Licence or lease?
| Licence (Part XVI) | State lease (Part X) | |
|---|---|---|
| Interest in land | None — permission to enter and use | A leasehold estate |
| Maximum term | 1 year (Div 1); as specified (Div 2) | Generally up to 99 years |
| Registered? | No | Yes — certificate of title |
| Can be mortgaged? | No | Yes |
| Ending it | Revocation for breach of conditions | Forfeiture, with show-cause protection |
| Improvements | Remove severable ones before termination | Possible payment under s 119 |
Sources
- Land Act 1996 — ss 67, 119, 121, 122, 125, 126; Part XVI
- Mining Act 1992 — s 5
- Constitution — ss 41, 53, 59
The Physical Planning Act 1989 is not carried in the PacLII databases, so no direct link is given here rather than an unverified one.
Before relying on anything here, read the current text of the Land Act 1996 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.