A question to consider for Local Governments facing the
Commencement of an amalgamation is what effect this might have upon
land under Local Government control and to any leases or licences
granted over that land.
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 position of a Local Government in relation to 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
Pursuant to Regulation 6 (4) (a) of the Local Government
(Constitution) Regulations 1998 (WA) (the Constitution
Regulations) the rights to ownership of any land owned by an
abolished local government will automatically transfer to the new
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 to ensure that Landgate carry out
formal alterations to the Register reflecting the change in
ownership between the Local Governments. If necessary the Governor
may, by order under section 9.62 of the Act give directions to
facilitate any of the matters set out in Clause 11(1) of Schedule
2.1 of the Act. These include the vesting, transfer, assumption or
adjustment of property, rights and liabilities of a Local
Where a Local Government takes over part only of the area of
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. As noted
above, this clause allows the Governor to make further regulations
to give effect to property transfers where they may not be covered
by the Constitution Regulations.
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) owns land within the area that it has lost to
(B). Fundamentally (A) will still retain the ownership of the land
and consequently the rights as Landlord or Licensor under any lease
or licence granted with respect to that land.
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 Governor may
by order under section 9.62(1) of the Act give directions.
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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