Another question to consider for Local Governments facing the
commencement of an amalgamation is what effect this might have upon
Crown land that has been leased by a Local Government pursuant to
The term Commencement in this article means the day of
commencement of any amalgamation order made by the Governor on the
recommendation of the Minister pursuant to section 2.1 of the
Local Government Act 1995 (WA) (the
The power of a Local Government to lease Crown Land is typically
given via Management Orders made pursuant to the Land
Administration Act 1997 (WA) (the LAA). In
the case of Reserves set aside for public purposes section 46 of
the LAA enables the Minister for Lands, by order, to delegate the
power to lease. This is referred to as a Management Order
and the Local Government receiving the power is referred to as a
The position of a Local Government in relation to Management
Order land to which it has an interest in is going to depend on the
type of amalgamation that has been ordered under section 2.1 of the
Where a Local Government takes over the whole of the
area of abolished District
Pursuant to Regulation 6 (4) (a) of the Local Government
(Constitution) Regulations 1998 (WA) (the Constitution
Regulations) the rights and liabilities under a Management
Order lease will automatically vest in the new Local
This will be the case where an existing Local Government remains
in existence but takes over the whole of the area of an abolished
Local Government by boundary change. Alternatively it will also be
the case where a new district is created that takes over the whole
of the area of an abolished District.
Consequently, the new Local Government will automatically
inherit the rights and obligations of the abolished Local
Government (as Landlord or Licensor) of any lease or licence that
may have been granted by the abolished Local Government. There
should be no need to prepare assignments of leases from one Local
Government to another.
However, it will be necessary for the Minister for Lands to
amend the Management Order to reflect the new Local Government
entity if indeed a new one has been created.
Where a Local Government takes over part only of the
area of abolished District
Provided the land in question was situated within the area taken
over then the position is likely to be the same as set out above.
However that position is not expressly set out in the Constitution
A Local Government that believes it may find itself in this
position may need to seek and order from the Governor (through the
Minister) under clause 11 of Schedule 2.1 to the Act. This clause
allows the Governor to make further regulations to give effect to
property transfers where they may not be covered by the
Where a Local Government takes over area from a Local
Government that is not abolished.
What happens where a Local Government, let's call
them (A) is not abolished but say loses part of its area to
another local government, let's call them (B) and
local government (A) has the power to lease delegated to it
pursuant to Management Orders over land within the area that it has
lost to (B). Fundamentally (A) will still retain the rights under
the Management Orders and consequently the rights as Landlord or
Licensor under any lease or licence granted with respect to that
However, there is an obligation under clause 11 (2) of Schedule
2.1 to the Act on all Local Governments affected by an amalgamation
to negotiate as to any adjustment or transfer of property rights.
If the Local Governments do not agree on what should happen and
they cannot resolve the matter by negotiation then the Minister has
power to resolve those disputes under section 9.63 of the Act.
Consequently the Governor has power under clause 11 (3) of
Schedule 2.1 to the Act to give effect to the Minister's
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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