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The Pamphlet Collection of Sir Robert Stout: Volume 56



Land may be acquired—
1.By conditional purchase;
2.By additional conditional purchase;
3.By improvement purchases in gold-fields;
4.By conditional purchase without residence;
5.By the preferent right of purchase attached to conditional leases;
6.By auction sales; and
7.By special sales without competition.

Conditional Purchase.

In the Eastern division (which may be generally described as extending westerly from the coast line, with a maximum breadth of about 170 and a minimum of about 120 miles therefrom, running from the Victorian border in a north-easterly direction so far as geographical centres will allow), the conditional purchase is incepted by the intending selector lodging his application with the land agent on any "land office day"—a day notified for the purpose—for the area he desires to acquire, which in this division may not be less than 40 nor more than 640 acres. If the land be unmeasured, he must mark it and properly identify it. Should improvements exist thereon, the fact must be stated. Land structurally improved, other than by fencing to the extent of £1 per acre and upwards, in special cases, is exempt from conditional sale, but the selector can amend his application to exclude the improvements if he desire. If the land selected contain improvements of a less value than £1 per acre, the Local Land Board appraises their value, and payment, if the Crown be owner thereof, is made by the purchaser to the Government by annual instalments of a quarter of the appraised value; if the improvements are private property, the owner and purchaser arrange the terms of payment, the Board intervening in cases where the parties do not agree. But if the removal of the improvements be not likely to permanently injure the land, there is nothing to prevent the owner removing them within three months from the confirmation of the selection. Where improvements have been effected since the 1st July, 1876, on land reserved from sale, upon the revocation of the reserve or withdrawal of the land from lease, the improvements become the property of the Crown, and if alienated will be dealt with as herein described.

Upon tender of application, the applicant deposits a sum of 2s. per acre for every acre applied for, together with a declaration of good faith and intention, with questions to be answered somewhat similar to the forms employed in the United States and in Victoria, but of rather less inquisitorial character. There is besides a stringent confiscatory clause to secure the integrity of these declarations, supported by provisions voiding any collusive agreements between persons inducing others to contract for the page 11 procuring of land for the benefit of others than themselves, and rendering person: so inducing liable to prosecution for misdemeanor.

The application for the conditional purchase being considered in open court by the Board, the surveyor's report being satisfactory, and no caveat or objection lodged, the applicant receives a certificate of confirmation, which is official recognition of his status as a conditional purchaser.

But this certificate cannot be issued until all caveats, objections, or appeals be disposed of. The purchaser then enters upon a five years' term of residence, within the first two years of which he must fence the area with a fence of the prescribed character at least four feet in height. (There is a latitude which may be exercised by the Board in this particular, both as to time and the natural features, upon application.) At the end of the third year from the confirmation referred to, or three months thereafter, the selector is required to declare that he has so far complied with the conditions essential, and to pay an instalment of 1s. per acre, to be annually continued until the balance of 17s. per acre, with 4 per cent, interest added, be liquidated. A further declaration is required at the end of five years (or three months after) that he has fulfilled the whole of the conditions, expect payment of balance; and the Board, after due enquiry, and no obstacles intervening, issues to him a certificate of fulfilment of conditions, known as the certificate of conformity. Every provision is made to ensure the proper attention to caveats or objections, and for appeal by aggrieved persons to the Minister; but having obtained this certificate, which is a transferable document if lodged with the transfer, the holder is competent to transfer his estate, with the contingent liability as to payment of balance, &c. (see "Transfer," post). Additional conditional purchases may be transferred with the original purchase, but cannot be separated until all the conditions have been fulfilled. The purchaser may, if he desire it, at this period pay off the remainder of his indebtedness to the Crown, and secure a deed of grant upon tender of the stipulated small fees; and he may equally, if he prefer, extend the time of purchase to a term of 30 years from the payment of the first instalment of Is. per acre (inclusive), the period being so lengthened by the collection at each annual payment of the interest chargeable. In default of the fulfilment of the residence and fencing conditions (which may at any time be the subject of an investigation by the Board), the purchase may be declared forfeited, and the land revert to the Crown, together with any additional conditional purchase or conditional lease acquired in virtue thereof. After the issue of the certificate of conformity, the payment of instalments in each purchase must be maintained, or each holding is equally liable to forfeiture.

These, then, are briefly the leading details attending alienation by conditional purchase in the Eastern division.

In the Central division the system is so far identical, with this exception that the area which may be taken in the original conditional purchase has a larger maximum, viz., 2,560 acres.

The Central division may be shortly referred to as having for its eastern boundary the western boundary of the Eastern division, and for its western boundary a line bearing about north-north-easterly from about the Lachlan-Murray junction to the Queensland border, with a mean width of about 117 miles, and watered by the Murray, Murrumbidgee, Lachlan, Macquarie, Namoi, and other rivers and tributaries.

The Western Division—which is bounded on the east by the Central Division, on the south by the Victorian border, on the west by the South Australian, and on the north by the Queensland border, and is chiefly watered by the Darling, Warrego, Barwon, and Lachlan rivers and tributaries—is unalienable by conditional purchase except within special areas.

Special areas may be proclaimed as set apart in any of the three divisions. In such areas not more than 160 acres may be conditionally purchased, the price (not less than 30s. per acre), deposits, and instalments, being notified in the proclamation.

The holder of a conditional purchase of less than 160 acres in a special area in any division may similarly, by additional purchase, bring it to that equivalent.

The combined purchase may be dealt with as one holding, and the selector may reside on the first selection to qualify both, and may fence the area as if there were no dividing line between the purchases. If he adopt the latter course, he may make the declaration of fulfilment of conditions required for the additional purchase at any time; but if he desire to extend a holding which is already 640 acres, and acquired under former acts, by addition under the present Statute, he must reside on either the original or the additional purchase for a further term of five years in order to qualify the latter. In all other respects conditional purchases under the repealed Acts may, equally with those under the existing law, form the qualification for the application for the additional area. The declarations and the payments to be made, as also the method and times of payment, are similar to those for the original purchases under the present Act, except in the matter of interest, which is reduced from 5 per cent, to 4 per cent.; but in cases where the prescribed declarations have been made for the page 12 additional purchase at earlier dates than the three and five year periods, the condition of payment of instalments apply as if the declarations had been made in the regular course, and the deed of grant will ultimately issue, if no-objections exist, in the same manner as for the original purchase; similar provisions for forfeiture applying in the event of similar laches, with the additional circumstance that the forfeiture of the additional purchase is involved in the forfeiture of the original, if they continue one holding.

Conditional Purchase without Residence.

This is a concession by which an area of not less than 40 nor more than 320 acres may be acquired, with certain restrictions, without residence. The applicant must be of the age of 21 years or upwards, and not at any time previously have been a conditional purchaser. The purchase-money is payable in like manner as for the ordinary conditional purchase, but is double the amount. The purchaser must properly fence the land within twelve months after survey—a certain latitude being allowed in exceptional circumstances—and must produce to the Local Land Board, after an interval of five years from survey,' evidence that he expended not less than £1 per acre in improvements besides fencing. Upon producing such evidence he receives a certificate of conformity, and may then, and not till then, transfer, alienate, or mortgage his interest. The estate may, however, devolve "by operation of law" at any time, upon payment of the instalments due. If the purchaser, in his original application, had not taken the full area of 320 acres, he may acquire the unselected balance by additional purchase. Once, however, having availed himself of this method of selection to the maximum area, he is debarred from making any other conditional purchase whatever.

Purchases in Gold-fields.

Special provision is made to enable residents on gold-fields to obtain the land upon which they have erected their residences or places of business. This they may do at a price to be fixed by the Local Land Board, not being less than £8 per acre for town lands, nor than £2 10s. for suburban or other lands, nor than £2 10s. for any area less than one acre.

The improvements to qualify the purchase need not be of greater value than these minimum rates. One person cannot purchase more than quarter of an acre of town land, nor over an acre of suburban or other land, nor can he make two purchases within three miles of each other. The purchaser must pay the full price within three months of notice, or be liable to a 10 per cent, penalty; and if he fail to pay the full price and penalty within six months, his right to purchase lapses. Lands in proclaimed gold-fields, within reserved areas, cannot be conditionally purchased, nor can lands lawfully occupied for mining purposes under any Mining Act; and further, all alienations of land under this Act are subject to the proviso that gold may be searched for thereon by persons properly licensed, and if the land be found auriferous the sale may be cancelled, wholly or in part, and the area become Crown lands, to be dealt with under the Statutes relating to mining in New South Wales. Any improvements which may be on the land at the time of such cancellation are to be compensated for to the owner, at their normal value, without reference to any enhancement from the discovery of the precious metal.

Conditional Leasehold.

This form of tenure first appears in the Statute-book as part of the present Act, and may be described as a contingent leasehold privilege attaching to a conditional purchase, with a preferent right of conditional purchase in some cases, without residence after five years' tenure, or, sinking the preferent right, with an extension of the lease for a further five years, with residence.

By the system of pre-emptive leases in the land policy now repealed, a grazing right was accorded to the conditional purchaser of three times the area of his selection, which right was at any time liable to be reduced, or even cancelled, by alienation to other selectors. The system of conditional leases, on the other hand, gives a much more secure tenure. These leases are only obtainable in the Eastern and Central divisions, and may be granted to any applicant for a conditional or additional conditional purchase, or any holder of a conditional-purchase under any of the repealed Acts (special areas excepted); the area being limited to three times that of the purchase, the area of the purchase and lease together not to aggregate more than 1,280 acres in the Eastern, and 2,560 in the Central divisions; a smaller area—not less than 40 acres—being allotted if there be not more available.

The application may be confirmed or disallowed as in the case of conditional purchase, and if confirmed, the Local Land Board, with the approval, of the Minister, fixes the rent payable, which cannot be less than 2d. per acre. The holder may, if he page break choose, reside on the leasehold to satisfy the residence condition of the conditional purchase in virtue of which the leasehold is held, but must give notice to the Board of his intention to do so; further, he must fence the land in a similar manner, as far as practicable, to that stipulated in the case of conditional purchases, but one exterior fence will suffice for purchase and lease.

The preferent right to purchase the whole or part of the leasehold matures at the end of five years from the confirmation of the application, and should he so elect, the leaseholder may thereby become the conditional purchaser thereof, in the following manner:—He first lodges his application with the Local Land Board for a certificate of fulfilment of conditions of the leasehold, which, if granted, is prim âfacie evidence of his right to purchase the leasehold in whole or in part. If he prefer to purchase a part only, such part must adjoin the prior purchase. Furnished with this certificate, tie lodges' his application with the land agent for the preferent purchase, paying a deposit of 2s. per acre, which application is dealt with by the Board in open court; and failing caveat or objections, he ultimately, having paid the balance of the instalments as in the case of other conditional purchases, obtains the freehold.

Provision has been made for the conversion of pre-emptive leases under the repealed Acts (for which application was necessary within ninety days from 1st January, 1885) into conditional leases under this Act, which has been largely availed of.

Residence on these converted leases is not essential, but the preferent right to purchase does not attach thereto.

Auction Sales.

The aggregate area allowed to be sold by auction, for the whole colony, in any one year, is 200,000 acres. Two to three months' notice is always given of any sale, and the minimum upset 'prices are fixed for town lands at £8; suburban lands, £2 10s.; and other lands, £1 5s. per acre. But a higher upset may be determined upon, and the value of any improvements be added thereto; and if the improvements were made in misapprehension, their value may be remitted to the improver. Twenty-five per cent, of the purchase-money must be paid at time of sale, and the balance within three months, or the deposit may be forfeited and the sale declared void. The maximum area which may be sold under the empowering section, is in the case of town lands, one-half acre; suburban, 20; and country lands, 640 acres.

Special Sales without Competition.

This is a provision for enabling the public in certain cases to obtain the freehold of water frontage to their properties, which had been previously reserved from sale; to reclaim land beyond high-water mark in continuity of their freeholds; to secure slips of land inconvenient for conditional sale; and to procure the closing and inclusion m their purchased area of unnecessary roads previously excluded therefrom.

In the latter case, if the original purchase be conditional, the payments may be made as for a conditional purchase.

The price for the reclaimed land is based upon one-half the net market value, less cost of reclamation, as appraised by the Board; the prices for the intervening small areas are determined by the Minister or by the Board, but to be not less than the minimum upset price for the class of land if sold by auction; and the water frontage area must also be paid for in like manner. All costs, charges, survey fees, and purchase moneys must be paid within three months after approval of purchase, under penalty of lapsing thereof.