The State has other ways of granting occupation rights, it may issue a permit to occupy or it may temporarily close a road and issue a road licence to allow the occupation of the closed area. This section discusses permits to occupy and road and occupation licences.
Permit to occupy
A permit to occupy is a permission to occupy or use a specified parcel of unallocated state land, reserve or road (including a stock route). It cannot be issued over freehold or leasehold land.
A permit to occupy is not an interest in the land (such as a lease) as it does not allow for exclusive possession of the land and cannot be transferred, sublet or mortgaged. If the permit is granted, the right to occupy applies only to the permit holder.
A short term permit is a permit to occupy issued for not more than twelve months.
A permit to occupy is issued for a specific purpose for minor or temporary matters including:
• pump sites
• apiary sites
• an entrance ramp to a building site during construction
• advertising signs on roads
• investigation work on unallocated state land.
As a permit to occupy is for uses of a minor nature, no major structural improvements, other than boundary fencing, are allowed. In addition, the reason for occupation must be one that can co-exist with the purpose for which the land has been set aside (e.g. use as a road, stock route or reserve).
If a permit is granted over a part of a road, the area remains open for use as a road. If the permit is over a reserve, the land remains available for the particular community purpose it was reserved for. If a permit is sought over a reserve with a trustee, DNRM will consult with the trustee before deciding to issue a permit.
A permit can be issued for areas that are below highwater mark if:
• it would not unduly affect safe navigation and sound development of the state’s waterways and ports
• its impact on marine infrastructure has been considered
• it would not have a detrimental effect on coastal management
• it would be consistent with the intent of any relevant state management plan.
The person, to whom a permit has been issued, may surrender a permit, and DNRM can cancel a permit. If a permit is cancelled or surrendered, any improvements to the area become the property of the State and no compensation is payable. However, the person to whom the permit was issued may be allowed to remove improvements.
General provisions which apply to permits
The general provisions which apply to a permit to occupy are:
• The permittee must obtain a tree clearing permit to destroy any trees on land covered by the permit to occupy.
• The annual rental is determined in the same manner as that of a lease.
• The Minister may set a rent of the permit area has not been valued.
• The annual rent is due and payable on or before 1 September each year unless the rent is over $2,000 in which case the permittee may elect to pay the rental quarterly.
For more information on a permit to occupy refer to Application for a permit to occupy on the DNRM website at. http://www.qld.gov.au/environment/land/state/leases/permits/.
A road licence is the tenure granted for the use of a road which has been temporarily closed.
A road licence provides a right to exclusive occupation of the road within the conditions of the licence but only while the rent continues to be paid. DNRM may however, after giving reasonable notice to the licensee, cancel the licence at any time with no compensation.
The Minister may issue a road licence over a temporarily closed road to an adjoining owner. However a road licence can be issued to another person, if the road license is only to allow the licensee to make structural improvements to:
• pipes for irrigation purposes that cross the road beneath its surface
• water channels for irrigation purposes that cross the road.
All licences are subject to the following conditions:
• There is no covenant, agreement or condition to renew the licence, convert it to another form of tenure or to sell the land.
• No more structural improvements other than fencing, pipes or channels across the road are permitted.
• If adjoining land held by the licensee is sold, the licence must also be sold or surrendered.
• A road licence can not be mortgaged, subleased or subdivided, but with the consent of DNRM may be transferred.
For more information on a road licence refer to Road Licence on the DNRM website at http://www.qld.gov.au/environment/land/state/roads/licence/
An occupation licence is a licence to occupy unallocated State land. Although the Land Act 1994 makes no provision for the issue of an occupation licence, previously existing licences continue under this Act.
No term applies to the licence, which the Minister may cancel in whole or part on giving three months notice. No compensation is payable for the cancellation. The Minister must approve all improvement or development work the licensee wishes to undertake. 10
General provisions which apply to licences
The Land Act contains various provisions which apply to licences. They include the following:
• The annual rental is due and payable on or before 1 September each year unless the rent is over $2,000 in which case the permittee may elect to pay the rental quarterly. .
• A licensee may not sell a licence without the prior consent of the Minister.
• A licence may not be sub-leased or subdivided.
• A licensee must comply with the conditions of the licence.
• A tree clearing permit is required to destroy trees on land covered by the licence.
• The annual rental is determined in the same manner as for a lease; however, if the land has not been valued, the Minister may set the rent.
Sale of unallocated State land
Unallocated State land becomes freehold when the land is sold and the buyer issued with a deed of grant for the area. However, even when land is freeholded, any mineral and petroleum products found on the land are reserved to the State.
In some instances the freehold may contain a reservation of an area for a public purpose (e.g. road) or for forest products by the inclusion of a forest entitlement area. A forest entitlement area is a State reservation of commercial timber and the land in which it stands. No charge is made for the land covered by an forest entitlement area and the owner may use the area as desired, subject to entering into an agreement under the Forestry Act 1959. As a general rule, quarry material has been reserved to the State since 1 January 1992.
Freehold title to land is obtained by the issue of a deed of grant by the Governor in Council following either a decision to sell unallocated State land, or a lessee’s successful application to purchase from the State the land contained in a lease. The following matters have an impact on the issue of freehold title:
• A deed of grant may not be issued for land below the high water mark.
• For all deeds of grant, the State reserves minerals and petroleum products.
• The State reserves quarry materials in the following instances:
• for leases made freehold as a consequence of a conversion-of-tenure application received on or after 5 February 1990 (or 31 October 1991 for leases granted under the Industrial Development Act)
• for a lease containing an entitlement to a deed of grant granted after 31 December 1991
• for freehold granted over unallocated State land after 31 December 1991.
• A deed of grant may issue containing a reservation for a public purpose.
• A deed of grant may be subject to a forest entitlement area
• A deed of grant may also issue over an operational reserve or an area of closed road.
• The Registrar of Titles may subsequently issue a Certificate of Title which contains the indefeasible title.
• Upon issue, the deed of grant is registered in the freehold land register.
• The Registrar of Titles creates an indefeasible title recording the particulars of the grant in the freehold land register.
Deeds of grant in trust
Deeds of grant in trust have the following characteristics:
• A deed of grant may be issued on the condition that it is held in trust for a community purpose (known as a deed of grant in trust).
• A deed of grant in trust issued before the Land Act 1994 commenced may be mortgaged.
• A deed of grant in trust issued under the provisions of the Land Act 1994 may not be mortgaged.
• The Minister must give consent to any leasing of the land and the lease must be endorsed with the Minister’s approval, prior to its registration in the Land Registry.
The Minister may dedicate unallocated State land as a reserve for a community purpose. The following community purposes are listed in the Land Act.
• Aboriginal purposes
• beach protection and coastal management
• cemeteries, crematoriums and mortuaries
• environmental purposes
• heritage, historical and cultural purposes
• natural resource management
• navigational purposes
• open space and buffer zones
• parks and gardens
• public boat ramps, jetties and landing places
• public halls
• public toilet facilities
• scenic purposes
• scientific purposes
• sport and recreation
• strategic land management
• Torres Strait Islander purposes
• travelling stock requirements
• watering places.
Trustees may be appointed to run the reserves and, while the State retains ownership of the land, trustees are required to manage it in a manner that achieves the purpose of the trust. Trustees are considered to be the owners of the land only for the purpose of legal proceedings. Because of this, incorporated bodies are the preferred entity for appointment as trustees.
Subject to the Minister’s consent, trustees may lease or issue a permit over the reserve, provided the lease or permit is consistent with the purpose of the trust and would facilitate or enhance the purpose of the trust. The Minister may allow a trustee to issue a lease or permit inconsistent with the purpose of the trust provided the lease does not diminish the purpose of the trust and all further improvements are first approved by the Minister.
The Land Act gives the meaning of road as, an area of land, whether surveyed or unsurveyed:
• dedicated or notified or declared to be a road for public use or
• taken under an Act for the purpose of a road for public use—an example of this is a road taken under the Acquisition of Land Act 1967 (Qld) and Transport Infrastructure Act 1994 (Qld).
The term ‘road’ includes:
• a street, esplanade, reserve for esplanade, highway, pathway, thoroughfare, track or stock route
• a bridge, causeway, culvert or other works in, on, over or under a road
• any part of a road.
Note that while all stock routes are roads, not all roads are stock routes. The land in all roads dedicated and opened for public use is owned by the State. A road does not have to have been constructed as a pre-requisite to dedication to public use.
A road is not only the area covered by the actual road formation (carriageway) but encompasses the entire area of land set apart for road purposes, from property boundary to property boundary. Indeed, a constructed carriageway may not even exist.
While the ownership of the road rests with the State, the management, control and regulation of most roads lies with the relevant local government in terms of the Local Government Act 2009.
However, if a road is a declared road under the Transport Infrastructure Act 1994 (Qld), its management and control rest with the Department of Transport and Main Roads.
An activity may not be undertaken on a road if it substantially interferes with the purpose for which the land was dedicated, unless this has been authorised under an Act.
If the State grants tenure other than a permit to occupy over a road, the road must first be closed—temporarily for the issue of a road licence, or permanently if it is intended to grant a lease or freehold title.
For more information on roads refer to Roads on the DNRM website at http://www.qld.gov.au/environment/land/state/roads/
The Land Act contains provisions designed to protect against trespassers. On land that is covered by non-freehold or deed of grant in trust tenures, a person must not unlawfully:
• occupy or live on the land
• enclose the land
• build, place or maintain any structure, improvement work or thing on the land
• clear, dig up or cultivate the land
• depasture stock on the land.
In most circumstances, the authority to undertake one of the above activities will emanate from the Land Act, although other legislation may apply in certain circumstances (e.g. the Transport Infrastructure Act 1994, the Electricity Act 1994, the Mineral Resources Act 1989).
Severe penalties (currently a maximum of approximately $47,000) apply if a person is convicted of an offence against the trespass provisions of the Act. 13