Public land is one of councils’ greatest assets. The Local Government Act 1993 (Act) sets out the council’s charter and directs a council to bear in mind that it is the custodian and trustee of public assets and to effectively account for and manage the assets for which it is responsible.

All public land must be classified by a council as either ‘community’ or ‘operational’ land. Operational land should ordinarily comprise land that is held as a temporary asset or as an investment, land which facilitates the council in carrying out its functions or land which is not open to the public, such as a works depot or water plant.

Classification as community land reflects the importance of the land to the community because of its use or special features. Generally, it is land intended for public access and use, or where other restrictions applying to the land create some obligation to maintain public access.

Plans of management must be prepared for all community land. They are not only required under the Act but are an essential management tool. 

Plans of management:

  • are written by council in consultation with the community
  • identify the important features of the land
  • clarify how council will manage the land, and in particular
  • indicate how the land may be used or developed, e.g. leasing.

The Act contains important restrictions on the ability of a council to grant leases, licences and other estates over community land:

  • Lease: grants a legal exclusive possession of premises for a specified period in return for the payment of rent.
  • Licence: grants a contractual right to occupy premises in return for the payment of a licence fee.
  • Estate: the term ‘estate’ is wide and includes many rights over land that can be granted. The legal meaning is found in the Interpretation Act 1987 and includes an ‘interest, right, title, claim, demand, lien and encumbrance whether at equity or law’. A common example in local government is the grant of easements.

This is coupled with requirements for public consultation to ensure that community views are considered. The Act also outlines when a council must tender a proposed lease or licence and the tender process (s.46A and s.55).

Councils must ensure that any estate is authorised under the Act. An estate must:

  • be expressly authorised in a plan of management
  • be consistent with the core objectives for the land
  • only be granted with the consent of the Minister if the term of the estate exceeds 21 years.

Without reference to a plan of management, the Act allows a council to grant a lease, licence or other estate in respect of community land for:

  • the provision of public utilities (s46(1)(a); or
  • the purpose of providing pipes, conduits or other connections underground for the connection of premises adjoining the community land to a facility of the council or other public utility provider (s46(1)(a1).

A council may otherwise grant a lease, licence or other estate in accordance with an express authorisation in the plan of management applying to the land. The lease, licence or other estate must be for one of the purposes listed in section 46(1)(b) of the Act and the proposed purpose must be consistent with the core categorisation of the land.

A council must obtain the consent of the Minister for Local Government to grant a lease, licence or other estate over community land where:

  • the proposed term (including any renewal options and holdover periods) exceeds 21 years
  • the proposed term (including any options and holdover periods) exceeds 5 years, and a person makes a submission by way of an objection to the proposal during the submission period
  • the proposed term (including any renewal options and holdover periods) is 5 years or less and the Minister provides council with a written request that the proposal is to be referred to the Minister, who will determine whether the provisions of section 47(5)-(9) are to apply to the proposal
  • a lease or licence cannot be granted over community land for a term (including any renewal options and holdover period exceeding 30 years.

Read the Practice Note No. 1 – Public Land Management (PDF, 98 KB)

Statutory applications

All applications for the Minister for Local Government’s consent to grant a lease, licence or other estate over community land required by Local Government Act 1993 (Act) are to be sent to [email protected]

The following information must be included to enable the timely processing and assessment of the application:

Application checklist
  1. A copy of the council’s minutes showing the resolution made by the council to make the application to the Minister. The corresponding business papers must also be provided. View the template for the Lease application model resolution (DOCX, 16.7 KB).
  2. A copy of the proposed lease, licence or other estate agreement. Please note, some holdover clauses have the potential to extend the term of the lease beyond the term permitted under the Act and should be avoided or, at the very least, limited.
  3. A copy of the adopted plan of management that applies to the land. Please ensure that the express authorisation to grant the lease, licence or other estate is highlighted.
  4. Identification in the cover letter of the relevant section and subsection of the Act that allows the lease, licence or other estate to be granted (e.g. section 46(1)(b)(i) of the Act).
  5. A statement setting out all the facts concerning the proposal to grant the lease, licence or other estate.
  6. A statement setting out the manner in which and the extent to which the public interest would, in the council’s opinion, be affected by the granting of the proposed lease, licence or other estate, including the manner in which and the extent to which the needs of the area with respect to community land would, in the council’s opinion, be adversely affected by the granting of the proposed lease, licence or other estate.
  7. Where the proposed term exceeds 21 years (as defined by Act), a statement setting out the special circumstances that justify the extended period.
  8. Where objections have been received, details of all the objections received and a statement setting out, for each objection, the council’s decision and the reasons for its decision. A copy of the council’s minutes and corresponding business papers relating to these decisions must also be provided.
  9. Details of the public notice given, that includes the information listed in section 47(2) of the Local Government Act 1993, as follows:
    • A copy of the notice published on the council’s website and confirmation of the dates of publication.
    • A copy and photo of the public notice exhibited on the land and confirmation of the date the notice was erected on the land.
    • A copy of the notice sent to the owners or occupiers of the adjoining land, confirmation of the date the notice was given, and a map identifying the adjoining land owners/occupiers who were given a notice.
    • A copy of the notice sent to any other person appearing to the council to be the owner or occupier of land in the vicinity of the land (if in the opinion of the council the land the subject of the proposal is likely to form the primary focus of the person’s enjoyment of the land), confirmation of the date the notice was given, and a list of those persons who were given a notice.
  10. Evidence of the council’s compliance with the tendering provisions of the Act and/or the plan of management. View section 46A of the Local Government Act 1993 and the Local Government (General) Regulation 2021 for more details. Note, if the council proposes to grant the lease, licence or other estate to a non-profit organisation, council must provide documentation that evidences the non-profit status.
Application assessment process

Indicative timeline of the application assessment process

The Office of Local Government (OLG) reviews the application to ensure that it contains all the required information. Council will be informed if additional information is required. An assessment of the application will commence once all required information is provided.

2-4 weeks

A copy of the application is sent to the Director of Planning for a report in accordance with section 47(7) of the Act. Council will be provided an opportunity to respond to any issues raised in the director of Planning’s report. OLG commences its assessment of the application. Council will be informed if additional information is to be provided.

8-10 weeks

OLG prepares a report for the Minister for Local Government. The Minister for Local Government, after considering the application and any report of the Director of Planning, determines whether to grant consent for the council to grant the proposed lease, licence or other estate. Council will be notified accordingly.