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 Act).
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 Act.
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 to ownership of any land owned by an abolished local government will automatically transfer to the new Local Government.
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 Government.
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 Regulations.
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.
If you have any questions about the Effects of Amalgamation on Local Government Land and Property Leases or the process to be followed, please contact Brenton Oakley or Philip Mavor on (08) 9321 3755.
The information published on this website is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.