Division 8 of Part X of the Land Act 1996 exists because no list of lease types can anticipate everything. It is the catch-all — and it carries powers the other lease types do not.
Section 100(1) — the residual test
Subject to section 69 and to subsection (2), where the Minister thinks that the grant of a lease under any other Division of this Part would not be appropriate or would not be possible, he may grant a special purposes lease of Government land.
The test is expressed in the Minister’s own opinion — “where the Minister thinks” — and covers two situations: the grant under another Division would be inappropriate, or it would be impossible.
In practice this covers uses that do not fit the agricultural, pastoral, business, residence or mission categories: quarries and borrow pits, jetties and wharves, communications and power installations, sports grounds, cemeteries, clubs, and places of worship for faiths outside the Christian mission lease.
Section 100(2) — the one prohibition
A special purposes lease shall not be granted for private residence purposes within a physical planning area.
The reason is straightforward. Town residential land is meant to go through the Division 5 residence lease route, which requires the land to be offered by tender under section 95. Allowing residential grants under Division 8 would let that competitive process be bypassed.
Section 100(3) — term and area
A special purposes lease may be granted for such term, not exceeding 99 years, and for such area of Government land, as seem to the Minister proper. The same 99-year ceiling as the other main lease types.
Sections 100(4) to (6) — rent, royalties and re-appraisal
This is where the special purposes lease differs most sharply from the others.
- Rent is such (if any) as seems to the Minister proper and as is specified in the lease. A special purposes lease can be granted at a nominal rent, or at none.
- Royalties. In addition to, or in place of, rent, the Minister may make the lease subject to the payment of royalties on any substance or thing to be recovered from or taken off the land, as he thinks proper and as specified in the lease.
- Re-appraisal. At such times, in such manner and on such basis as are specified in the lease, the Minister may re-appraise the rent, impose rent where none was specified, or vary or impose royalty.
The power to re-appraise, or to impose rent where none was specified, is exercisable at the times and on the basis specified in the lease. Those mechanics are in your lease document, not in the Act. A lease granted rent-free today can carry rent later if the clause allows it.
Royalty is the more significant exposure for extractive uses — quarrying, gravel, sand, stone. Confirm what substances attract royalty, at what rate, and how it is calculated and varied.
Section 100(7) disapplies sections 83 and 84 — the general rent provisions — to a special purposes lease. The rent regime is the one in the lease itself, read with section 100.
Section 101 — tender in a physical planning area
Subject to section 69, before a lease under Division 8 of land within a physical planning area is granted, the land shall in the first instance be offered for lease by tender.
The same principle as section 95 for business and residence leases: urban land goes to tender unless the Minister exempts it on one of the section 69 grounds.
How it compares with the other leases
| Agricultural / pastoral | Business / residence | Special purposes | |
|---|---|---|---|
| Maximum term | 99 years | 99 years | 99 years |
| Rent | Under ss 83–84 | Under ss 83–84 | As the Minister thinks proper — possibly none |
| Royalties? | No | No | Yes — s 100(5) |
| Re-appraisal | Under the general provisions | Under the general provisions | As specified in the lease — s 100(6) |
| Mandatory conditions | Minimum improvements / stocking | May specify class of business | As the Minister determines |
| Residence in a planning area? | n/a | Yes | Prohibited — s 100(2) |
What still applies
A special purposes lease remains a State lease. So:
- Section 67 — it cannot be granted for a purpose contravening zoning or physical planning requirements;
- Section 66 — where the land is customary land leased to the State, a provision inconsistent with the head lease is of no effect;
- Section 82(3) — minerals and petroleum are reserved to the State, with rights of entry;
- Part XV — the lease may be forfeited for breach of condition, including non-payment of rent or royalty; and
- Part XVII — approval of dealings is required before a transfer.
Royalty under section 100(5) is a lease royalty on substances taken off the land under the lease. It is not the same as mineral rights. Under section 5 of the Mining Act 1992 all minerals are the property of the State, and mining requires a tenement under that Act — a special purposes lease does not authorise mining.
Sources
- Land Act 1996 — ss 66, 67, 69, 82–84, 95, 100, 101; Parts XV and XVII
- Mining Act 1992 — s 5
- Land Registration Act (Chapter 191)
The Physical Planning Act 1989, which defines physical planning areas, 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.