Property and Development NSW Act 2006 No 40 An Act to constitute Property and Development NSW as a corporation with functions relating to the acquisition, management and disposal of property vested in the Crown and government agencies; to provide for the transfer of certain property to Property and Development NSW; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Property and Development NSW Act 2006. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definitions (1) In this Act— Chief Executive Officer means the person employed in the Public Service as the Chief Executive Officer of Property and Development NSW. contaminated land has the same meaning as in the Waste Assets Management Corporation Act 2010. exercise a function includes perform a duty. function includes a power, authority or duty. government agency means any of the following— (a) a public authority constituted by or under an Act, (b) a statutory body representing the Crown, (c) a Public Service agency, but does not include a State owned corporation, a local authority or any person or body exempted by the regulations from this definition. interest in land means— (a) a legal or equitable estate or interest in the land, or (b) an easement, right, charge, power or privilege over, or in connection with, the land. liabilities means any liabilities, debts or obligations (whether present or future and whether vested or contingent). private corporation means a corporation within the meaning of the Corporations Act 2001 of the Commonwealth formed in or outside New South Wales. private subsidiary corporation means a private corporation in which Property and Development NSW has a controlling interest. property of a government agency means— (a) land that is vested in the government agency, or land that is vested in the Crown or Her Majesty and that is controlled and used by the government agency, or (b) an interest in land, being an interest that is vested in or held by the government agency. Property and Development NSW means Property and Development NSW constituted by section 4. Note— See the Interpretation Act 1987, section 53(1), which provides for the effect of the alteration of the name of a body. rights means any rights, powers, privileges or immunities (whether present or future and whether vested or contingent). wholly owned subsidiary corporation means a private corporation in which Property and Development NSW is the only shareholder. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Notes included in this Act do not form part of this Act. Part 2 Constitution and management of Property and Development NSW 4 Constitution of Property and Development NSW There is constituted by this Act a corporation with the corporate name of Property and Development NSW. 5 Property and Development NSW represents the Crown Property and Development NSW is a statutory body representing the Crown. 6 Ministerial control Property and Development NSW is subject to the control and direction of the Minister in the exercise of its functions. 7 Chief Executive Officer (1) The Chief Executive Officer is responsible for the day-to-day management of the affairs of Property and Development NSW. (2) Any act, matter or thing done in the name of, or on behalf of, Property and Development NSW by the Chief Executive Officer is taken to have been done by Property and Development NSW. 7A Staff Persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable Property and Development NSW to exercise its functions. Note— Section 59 of the Government Sector Employment Act 2013 provides that the persons so employed (or whose services Property and Development NSW makes use of) may be referred to as officers or employees, or members of staff, of Property and Development NSW. Section 47A of the Constitution Act 1902 precludes Property and Development NSW from employing staff. 8 Delegation of Property and Development NSW's functions (1) Property and Development NSW may delegate to an authorised person any of its functions, other than this power of delegation. (2) A delegate may sub-delegate to an authorised person any function delegated by Property and Development NSW if the delegate is authorised in writing to do so by Property and Development NSW. (3) This section extends to any function delegated to Property and Development NSW under section 12. (4) In this section, authorised person means— (a) a member of staff of Property and Development NSW, or (b) a person, or a class of persons— (i) approved by the Minister, or (ii) prescribed by the regulations. 9 Exercise of functions through wholly owned subsidiaries, private subsidiaries etc Any function of Property and Development NSW may be exercised— (a) by Property and Development NSW itself, or (a1) by a wholly owned subsidiary corporation, or (b) by a private subsidiary corporation, or (c) by Property and Development NSW or such a private subsidiary corporation, or both, in a partnership, joint venture or other association with other persons or bodies. Part 3 Objectives and functions of Property and Development NSW 10 Objectives of Property and Development NSW The principal objectives of Property and Development NSW in exercising its functions are as follows— (a) to improve operational efficiencies in the use of properties of government agencies, particularly generic properties (such as offices, warehouses, depots and car parks), (b) to manage properties of government agencies in a way that supports the service delivery functions of those agencies, (b1) to promote development of property that— (i) accords with best practice environmental and planning standards, and (ii) is environmentally sustainable, and (iii) applies innovative environmental building and public domain design, (c) to provide advice and support within government on property matters, (d) to operate at least as efficiently as any comparable business, consistently with the principles of ecologically sustainable development and social responsibility for the community (including the indigenous community). 11 Functions—generally (1) The principal functions of Property and Development NSW are as follows— (a) to hold, manage, maintain, acquire or dispose of property for the government and government agencies, (b) to carry out, manage, co-ordinate or participate in the development of the property of government agencies (including property of Property and Development NSW), (b1) to design workspaces for use by the government or government agencies, including the fit-out of the workspaces, (c) to arrange, where appropriate, for the sharing of facilities and premises by government agencies to reduce operational expenses for the government, (d) to provide services or do other things for the management, maintenance or improvement of property of government agencies (including property of Property and Development NSW), (d1) to develop, hold and manage information technology relating to land-use analysis or the management, maintenance or improvement of land, including providing access to the technology by government agencies and other persons, whether or not on payment of a fee, (d2) to enter into agreements with— (i) government agencies under section 12, or (ii) government agencies or other persons in relation to property vested in, or otherwise held or managed by, Property and Development NSW, (e) to provide advice to the Minister in relation to properties of government agencies and, in particular, as to whether those properties are being efficiently utilised, (f) to provide advice to the Minister on the transfer of properties to Property and Development NSW and on budgetary measures relating to the properties of government agencies, (g) to provide advice to the Minister on such matters relating to the properties of government agencies (including the property of Property and Development NSW) as the Minister directs. (1A) Without limiting subsection (1)(a), Property and Development NSW's functions include the following— (a) to enter into agreements, including leases and licences, for the use of land and buildings by the government and government agencies, (b) to acquire property so that Property and Development NSW may carry out development, including development that is environmentally sustainable, (c) to acquire, hold and manage contaminated land for a purpose referred to in paragraph (d), (d) to provide services and do other things for the following purposes in relation to contaminated land acquired, held or managed by Property and Development NSW— (i) the remediation of the land, (ii) the use or development of the land, (iii) activities that relate to or are incidental to the remediation, use or development of the land. (2) Property and Development NSW has such other functions as are conferred or imposed on it by or under this or any other Act. (3) Property and Development NSW may do all such supplemental, incidental or consequential acts as may be necessary or expedient for the exercise of its functions. (4) (Repealed) 11A Requirements in relation to particular leases (1) Property and Development NSW may enter into a lease in relation to a relevant building with a lessee that is not a government agency only if the area the subject of the lease will be used under the lease for a purpose that— (a) is not inconsistent with, or is complementary to, the building's existing uses, and (b) delivers benefits to the State. (2) If Property and Development NSW enters into a long-term lease with a lessee that is not a government agency, whether or not the lease is in relation to a relevant building, Property and Development NSW must publish notice of the lease in the Gazette— (a) within the period prescribed in the regulations, or (b) if a period is not prescribed in the regulations—not later than 14 days after entering into the lease. (3) In this section— long-term lease means a lease with an original term of more than 20 years. relevant building means a commercial building— (a) owned by Property and Development NSW, and (b) used for the purpose of providing offices for government agencies. 12 Agreements for management of property by Property and Development NSW (1) A government agency may enter into an agreement with Property and Development NSW for Property and Development NSW— (a) to hold property for the agency or to manage, maintain or dispose of property of the agency, or (b) to carry out, manage, co-ordinate or participate in the development of the property of the agency, or (c) to acquire any property on behalf of, or for the purposes of, the agency, or (d) to provide services or do other things for the management, maintenance or improvement of property of the agency. (2) Any functions of a government agency or person employed in or by a government agency in relation to the management of property that is the subject of an agreement under this section may be delegated to Property and Development NSW, despite the provisions of any other Act. (3) No trust relationship or any other equitable relationship is established solely because Property and Development NSW holds, manages, maintains, disposes of or acquires property on behalf of, or for the purposes of, a government agency under arrangements entered into under this section. (4) If a government agency is authorised by or under any Act to use specified funds to acquire, manage, maintain or develop property, the authorisation is taken to extend to providing those funds to Property and Development NSW for the acquisition, management, maintenance or development of the property in accordance with arrangements entered into under this section. 13 Land dealings (1) Property and Development NSW may, with the consent of the Minister, sell, lease, exchange or otherwise dispose of or deal with any land vested in Property and Development NSW and grant easements or rights-of-way over such land or any part of it. (1A) Property and Development NSW may dispose of or deal with land under subsection (1) only for the following purposes— (a) the achievement of Property and Development NSW's principal objectives under section 10, (b) the exercise of Property and Development NSW's functions under this part. (2) The consent of the Minister under subsection (1)— (a) may be given in relation to particular land or a class of land or a particular disposition of or dealing with land or a class of dispositions or dealings, and (b) may be subject to conditions, and (c) may be varied from time to time, and (d) may be withdrawn (but any such withdrawal of consent does not affect any disposition or dealing made, or the subject of a binding agreement made, before the withdrawal). (3) Property and Development NSW must establish and maintain a register of all land that is, from time to time, vested in or managed by Property and Development NSW. 14 Dedication of land (1) Property and Development NSW may, by notification published in the Gazette, declare that it proposes to surrender land vested in it and described or referred to in the notification to the Crown to be dedicated— (a) for any public purpose specified in the notification, or (b) if so specified in the notification, as a public road. (2) When the land is surrendered— (a) it becomes Crown land reserved from sale, lease or licence under the Crown Land Management Act 2016, and (b) on revocation of the reservation, it may be dedicated under that Act for the public purpose specified in the notification or under section 12 of the Roads Act 1993 as a public road. (3) Property and Development NSW may, in a notification published under subsection (1), limit the description of, or reference to, land to a specified depth below the surface of the land. If the description or reference is so limited, subsection (2) does not apply to land below the specified depth. (4) Property and Development NSW may, by notification published in the Gazette, declare any elevated or subterranean structure owned by Property and Development NSW that continues the line of a public road to be a public road. On the publication of the notification in the Gazette, the structure, except in relation to any vesting of the structure, is taken to be a public road. 14A Compulsory acquisition of land (1) Property and Development NSW may acquire land, by agreement or compulsory process, under the Land Acquisition (Just Terms Compensation) Act 1991 for the following purposes— (a) the achievement of Property and Development NSW's principal objectives under section 10, (b) the exercise of Property and Development NSW's functions under this part. (2) To avoid doubt, subsection (1) does not authorise a private subsidiary corporation to acquire land, by agreement or compulsory process, under the Land Acquisition (Just Terms Compensation) Act 1991. 15 Acquisition of property by gift, devise or bequest (1) Property and Development NSW may acquire by gift, devise or bequest any property for the purposes of this Act and may agree to carry out the conditions of any such gift, devise or bequest. (2) The rule of law against remoteness of vesting does not apply to any condition of a gift, devise or bequest to which Property and Development NSW has agreed. (3) The Duties Act 1997 does not apply to or in respect of any gift, devise or bequest made or to be made to Property and Development NSW. 15A Dealing with land subject to Crown lease (1) This section applies if land subject to a lease under the Crown Land Management Act 2016— (a) is vested in Property and Development NSW by an order under section 19, and (b) the order specifies that the land continues to be subject to a lease. (2) On the vesting of the property in Property and Development NSW, the lease— (a) ceases to be a lease under the Crown Land Management Act 2016, and (b) becomes a lease between the lessee and Property and Development NSW on the same terms as were in force immediately before the vesting. Note— See the Native Title (New South Wales) Act 1994, section 104A, which provides that certain acts under this Act do not extinguish native title rights and interests, and the Aboriginal Land Rights Act 1983, section 36, which provides for claims to Crown lands by the New South Wales Aboriginal Land Council and Local Aboriginal Land Councils. (3) For the purposes of subsection (2)(b), a reference in the lease, or another instrument in relation to the lease, to the Minister administering the Crown Land Management Act 2016 is taken to be a reference to Property and Development NSW. 15B Wholly owned subsidiary corporations (1) Property and Development NSW may, with the approval of the Treasurer, establish wholly owned subsidiary corporations to hold property for Property and Development NSW. (2) A wholly owned subsidiary corporation is— (a) a statutory body representing the Crown, and (b) is subject to the direction and control of Property and Development NSW. 16 Private subsidiary corporations etc (1) (Repealed) (2) Property and Development NSW may, but only with the approval of the Minister— (a) form, or participate in the formation of, private corporations, and (b) acquire interests in private corporations, and (c) sell or otherwise dispose of interests in private corporations. (3) A private subsidiary corporation is not, and does not represent, the Crown. Part 4 Transfers relating to property of government agencies 17 Definitions In this Part— transfer date—see section 19(1A). transferor, in relation to property, means the person or body in whom or which the property was vested immediately before the transfer date. 18 (Repealed) 19 Transfer of property to Property and Development NSW (1) The Minister may, by order published in the Gazette, transfer property specified in the order to Property and Development NSW. (1A) Property transferred to Property and Development NSW by an order under this section vests in Property and Development NSW on the later of the following dates (the transfer date)— (a) the date the order is published in the Gazette, (b) the date specified in the order. (1B) Property specified in an order under this section vests in Property and Development NSW for an estate in fee simple, or another interest specified in the order— (a) without the need for further conveyance, transfer, assignment or assurance, and (b) subject to any trusts, estates, interests, dedications, conditions, restrictions and covenants to which the land was subject immediately before the transfer date. (1C) On the transfer date for the property, the following have effect— (a) the rights and liabilities of the transferor in relation to the property become the rights and liabilities of Property and Development NSW, (b) all proceedings relating to the property commenced but not finished immediately before the transfer date are taken to be proceedings by or against Property and Development NSW, (c) an act, matter or thing done or omitted to be done in relation to the property before the transfer date by or in relation to the transferor is, to the extent the act, matter or thing continues to have force or effect, taken to have been done or omitted to be done by, to or in relation to Property and Development NSW, (d) subject to the regulations, a reference in an Act, an instrument made under an Act or another document to the transferor or a predecessor of the transferor is, to the extent the reference relates to the property or the rights or liabilities of the transferor, taken to be or to include a reference to the transferee. (2) Property is authorised to be transferred to Property and Development NSW by an order under this section only if it is property of a government agency (including vacant Crown land). This section does not prevent land, the fee simple in which is vested in Her Majesty, the Crown or a government agency, from being transferred by order under this section even if the land is subject to other interests. (3) Property is not authorised to be transferred to Property and Development NSW by an order under this section if it comprises, wholly or in part, any of the following— (a) land that is reserved under the National Parks and Wildlife Act 1974 as a national park, historic site, state conservation area, regional park, nature reserve or karst conservation reserve or land that is acquired under Part 11 of the National Parks and Wildlife Act 1974, (b) any area that is declared as a marine park under the Marine Estate Management Act 2014, (c) any land that is reserved or dedicated under an Act for any purpose, being a reservation or dedication that can only be revoked by an Act, (d) Crown managed land within the meaning of the Crown Land Management Act 2016 unless the Minister for Lands has given concurrence to the transfer of the particular land identified by the Minister administering this Act. (4) Subject to the other provisions of this section, property may be transferred by order under this section despite any requirement of any other Act or law that relates to dealing with or disposing of the property. 20 Effect of transfer of property under this Part (1) No compensation is payable to any person or body in connection with the operation of this Part. (2) The operation of this Part is not to be regarded— (a) as a breach of contract or confidence or otherwise as a civil wrong, or (b) as a breach of any contractual provision prohibiting, restricting or regulating the assignment or transfer of assets, rights or liabilities, or (c) as giving rise to any remedy by a party to an instrument, or as causing or permitting the termination of any instrument, because of a change in the beneficial or legal ownership of any asset, right or liability. (3) The operation of this Part is not to be regarded as an event of default under any contract or other instrument. (4) No attornment to the transferee by a lessee from a transferor is required. (5) No provision in a lease transferred under this Part to Property and Development NSW is breached solely because Property and Development NSW sublets the property the subject of the lease to a government agency. 20A Transfers operate to revoke existing reservations or dedications (1) This section applies to Crown land within the meaning of the Crown Land Management Act 2016. (2) The vesting of Crown land under this Act revokes any dedication or reservation of the land under the Crown Land Management Act 2016. (3) This section extends to any Crown land vested under this Act before the commencement of this section that was dedicated or reserved under the Crown Lands Act 1989. (4) Accordingly, any dedication or reservation of land to which subsection (2) refers is taken to have been revoked on the vesting of the land. Part 5 Miscellaneous 21 No duty payable in relation to agreements, vestings or transfers under Act Duty under the Duties Act 1997 is not chargeable for or in respect of— (a) a vesting or transfer of property effected under this Act or in accordance with arrangements entered into under this Act, or (b) anything certified by the Minister as having been done in consequence of such a vesting or transfer or under any such arrangements. 21A Land register of GSF agency property (1) (Repealed) (2) A GSF agency is required to furnish to Property and Development NSW details of the following within such time and in such manner as are specified by Property and Development NSW— (a) all land owned or occupied by the GSF agency, (b) the current use of that land, (c) all land which is, at the time at which the details are furnished, considered by the GSF agency to be essential to its operations, (d) all land which is, at the time at which the details are furnished, considered by the GSF agency not to be essential to its operations, (e) in relation to land to which paragraph (d) applies that is owned or occupied by a GSF agency that is not a Public Service agency— (i) a valuation of the current market value of that land, and (ii) the date and source of that valuation, (f) such other matters relating to the land owned or occupied by the GSF agency as Property and Development NSW may determine. (2A) For subsection (2)(e)(i), the valuation of the current market value of the land must be prepared in accordance with— (a) any Treasurer's directions that are applicable, and (b) any applicable policy of the Secretary of the department in which the Government Sector Finance Act 2018 is administered. (3) Without limiting the generality of subsection (2)(f), Property and Development NSW may require a GSF agency to give detailed reasons and other relevant information to indicate why land to which subsection (2)(c) applies is considered by the GSF agency to be essential to its operations. (4) A GSF agency that is not a Public Service agency must, at intervals of not more than 3 years, review a valuation of the current market value of land to which subsection (2)(d) applies. (5) Property and Development NSW must cause to be kept a register which includes the details furnished to Property and Development NSW under this section (or furnished under section 17 of the Annual Reports (Departments) Act 1985 or under section 14 of the Annual Reports (Statutory Bodies) Act 1984 before the repeal of those sections). (6) Property and Development NSW may ask the Valuer-General to— (a) provide advice on the details in the register under subsection (5) or any other matter under this section, or (b) conduct a valuation mentioned in subsection (2)(e)(i) and provide the valuation to Property and Development NSW. (6A) If Property and Development NSW makes a request under subsection (6)(b)— (a) the request must be in the form approved by the Valuer-General, and (b) a fee determined by the Valuer-General is payable, by the GSF agency that owns or occupies the land, for the valuation. (7) Property and Development NSW may exempt a GSF agency from compliance with such of the provisions of this section as are specified in the exemption. Property and Development NSW may at any time revoke any such exemption. (8) An exemption may be granted generally or subject to such conditions as Property and Development NSW may specify in the exemption or in relation to such matters as may be so specified. (9) A reference in this section to land owned or occupied by a GSF agency that is a Public Service agency is a reference to land owned or occupied, or under the control of, the agency or the Minister to whom the agency is responsible. (10) In this section— GSF agency has the same meaning as in the Government Sector Finance Act 2018. Public Service agency has the same meaning as in the Government Sector Finance Act 2018. Treasurer's directions has the same meaning as in the Government Sector Finance Act 2018. 22 Regulations The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act. 23 Savings, transitional and other provisions Schedule 2 has effect. 24 (Repealed) 25 Review of Act (1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives. (2) The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to this Act. (3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years. Schedule 1 (Repealed) Schedule 2 Savings, transitional and other provisions (Section 23) Part 1 General 1 Regulations (1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act or any Act that amends this Act. (2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date. (3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as— (a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or (b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication. Part 2 Provisions consequent on enactment of Statute Law (Miscellaneous Provisions) Act 2008 2 Operation of amendments made by Statute Law (Miscellaneous Provisions) Act 2008 Any thing that was done before the commencement of this clause that could have been validly done under this Act if the amendments made to this Act by the Statute Law (Miscellaneous Provisions) Act 2008 had been in force when it was done is taken to have been validly done on and from the time when it was done. Part 3 Provisions consequent on enactment of Statute Law (Miscellaneous Provisions) Act 2009 3 Transfer of certain property removed from Schedule 1 (1) This clause applies to Lot 7, Section 5 in Deposited Plan 759003. (2) On the transfer date, the property to which this clause applies vests in the original owner for an estate in fee simple— (a) without the need for any further conveyance, transfer, assignment or assurance, and (b) subject to any trusts, estates, interests, dedications, conditions, restrictions and covenants to which the land was subject immediately before the transfer date. (3) Sections 18(2) and 20(1)–(4) apply, with any necessary modifications, to, and in respect of, the transfer of the property by the operation of this clause in the same way as those provisions apply to and in respect of the transfer of property under Part 4. (4) For the avoidance of doubt, in section 18(2), as applied— (a) a reference to the transfer date is taken to be a reference to the transfer date within the meaning of this clause, and (b) a reference to Government Property NSW is taken to be a reference to the original owner, and (c) a reference to the transferor is taken to be a reference to Government Property NSW. (5) In this clause— original owner means the government agency which held the property to which this clause applies immediately before it was vested in Government Property NSW by this Act. transfer date means the date on which the description of the property to which this clause applies was omitted from Schedule 1 by the Statute Law (Miscellaneous Provisions) Act 2009. 4 Transfer date of amended descriptions For the avoidance of doubt, the amendment of the description of a lease listed in Schedule 1 by the Statute Law (Miscellaneous Provisions) Act 2009 does not affect the date on which the transfer of that lease was purported to occur. Part 4 Provisions consequent on enactment of Environmental Planning and Assessment Amendment Act 2012 5 Definition In this Part— amending Act means the Environmental Planning and Assessment Amendment Act 2012. 6 Change of name of State Property Authority to Government Property NSW The substitution of section 4 of this Act by the amending Act effects the alteration of the name of the State Property Authority in terms of section 53 of the Interpretation Act 1987 and accordingly that section applies. Note— Section 53 of the Interpretation Act 1987 provides that if an Act alters the name of a body or office— (a) the body or office continues in existence under its new name so that its identity is not affected, and (b) a reference in any Act or instrument, or in any other document, to the body or office under its former name is to be read as a reference to the body or office under its new name (except in relation to matters that occurred before the alteration took place). Part 5 Provision consequent on enactment of Statute Law (Miscellaneous Provisions) Act (No 2) 2016 7 Change of name of Government Property NSW to Property NSW The substitution of section 4 of this Act by the Statute Law (Miscellaneous Provisions) Act (No 2) 2016 effects the alteration of the name of Government Property NSW in terms of section 53 of the Interpretation Act 1987 and accordingly that section applies. Schedule 3 (Repealed)