What Is a Pastoral Lease?

Division 4 of Part X of the Land Act 1996 governs grazing land. It contains an obligation to stock, and a power to require destocking — pulling in both directions for good reason.

Section 89 — the grant

Section 90 — minimum stocking conditions

This is the pastoral equivalent of the agricultural lease’s minimum improvement conditions. The State grants grazing land on the footing that it will actually be grazed. Holding a large run understocked, on pastoral rent, is what section 90 exists to prevent.

Failure to comply with a lease condition is a ground of forfeiture under Part XV.

Section 91 — the inquiry into depasturing

The opposite problem gets its own procedure.

1. Section 91(1) — the Minister may at any time direct the Departmental Head to inquire into the number of stock depastured on the land comprised in a pastoral lease.
2. Section 91(2) — the Departmental Head must inquire and report to the Minister.
3. Section 91(3) — if the Minister is satisfied that the land is likely to be permanently injured on account of the number of stock, and after considering a report of the Land Board, he may cause a notice to be served on the lessee requiring the lessee:
   • (a) within a time specified, to reduce the number of stock to not more than a stated number; and
   • (b) to comply with such other conditions and restrictions as to depasturing as the Minister thinks proper and specifies in the notice.

The threshold: “likely to be permanently injured”

The Minister’s power is not a general power to manage a lessee’s herd. Three things must be established:

• an inquiry and report by the Departmental Head;
• the Minister’s satisfaction that the land is likely to be permanently injured on account of stock numbers — not merely degraded, or overgrazed in a season; and
• consideration of a Land Board report.

A lessee served with a notice should ask to see the Departmental Head’s report and the Land Board report, and should put its own evidence — carrying capacity, rainfall, rotation practice, pasture condition — before the Department.

The environmental overlay

Section 91 is an early piece of land-degradation law. It now sits alongside the Environment Act 2000, whose general environmental duty in section 7 requires a person carrying out an activity that causes or is likely to cause environmental harm to take all reasonable and practicable measures to prevent or minimise it.

Overgrazing that degrades soil or watercourses can therefore engage both statutes: a destocking notice under the Land Act, and an environment protection order under the Environment Act.

Practical points for a pastoral lessee

1. Know your minimum stocking figure and keep records that prove you meet it — musters, tallies, sale and purchase records.
2. Keep pasture records too. They are your answer to a section 91 inquiry.
3. Treat a section 91 notice as urgent. It specifies a time for reduction, and non-compliance is a breach of a lease requirement.
4. Watch the two directions at once — too few stock risks forfeiture under section 90; too many risks a destocking notice under section 91.
5. Take advice early — the Public Solicitor, or a firm from the law firms directory.