Renewal of Oyster Lease Information Kit
Why is a renewal of an oyster lease required?
The term of an oyster lease may not be for longer than 15 years. A renewal of an oyster lease is required when the tenure of the lease is due to expire and the lessee wishes to renew the lease for a further term. The renewal application may be refused if NSW Department of Primary Industries (NSW DPI) determines that the area is not suitable for sustainable oyster aquaculture.
When can an oyster lease be renewed?
NSW DPI sends a reminder notice and a renewal application form to the lessee at least 90 days prior to the expiry date, inviting the lessee to apply for a renewal of the lease. If a lessee wishes to renew a lease before this time, duly made applications are accepted within 12 months prior to the expiry date.
How is an application duly made to renew an oyster lease?
The renewal of an oyster lease is not an automatic process and the Minister is not obliged to renew the lease simply because an application is lodged. For an application to be duly made, the lessee is required to make a considered and complete effort in addressing all matters relating to the renewal process.
- Complete the renewal application form. This involves completing every section of the form in clear and legible print. An incomplete application form will result in the application being rejected.
- Attach the current original lease deeds. If the lease documents are not supplied with the application form the application will be rejected. If the deeds are lost or destroyed, the current lessee(s) must complete the statutory declaration on the back of the form and replacement documents applied for with the relevant fee (see fee schedule).
- Submit all payments with the application. The applicant must submit the prescribed renewal application fee (see fee schedule) and any other payment required with the application. If payment is made at a local office of NSW DPI, a copy of the receipt must be attached to the application. Any overdue account matters relating to the relevant aquaculture account should be settled prior to an application being lodged.
When must the application to renew be lodged?
An application for renewal should be lodged before the lease expiry date. The application may be refused if lodged later than 120 days after the date of expiry of the lease.
Does the lessee have a right of renewal?
If a lessee duly applies for the 1st renewal of a lease, the lessee has a preferential right to a further lease of the area, as against any other applicant, providing the application is duly made prior to or within 30 days after the expiry of the lease. The preferential right only arises when the Minister is satisfied that the lessee has substantially observed and performed the covenants and conditions of the lease and is satisfied the area should continue to be available for aquaculture.
Will the area have to be surveyed?
Generally not, however, if it has become apparent at any time that the lease area is inconsistent with the lease plan the Minister may require that the area be surveyed at the expense of the applicant before the renewal proceeds.
What should be requested for lease tenancy?
A lease may be held under either a “tenancy in common” or “joint tenancy” arrangement. Under joint tenancy, upon the death of one of the lessees, the lease is automatically transferred to any surviving lessee/s. Under tenancy in common, the portion of the lease held by the deceased lessee is transferred according to the deceased’s will and/or at the direction of the executor of the deceased’s estate.
An adjustment to the tenancy agreement may be made at renewal by completing the section on tenancy or by submitting a written request at any time at any time during the currency of the lease. If no indication is given the previous tenancy agreement is maintained. Tenancy arrangements do not apply to a lease held solely by an individual or company.
What if the lessee wishes to change cultivation methods or lease use, or grow different species on the lease?
Any proposed changes must be applied for on an “Aquaculture Permit/Lease Variation Assessment” form and will be assessed in accordance with the Environmental Planning and Assessment Act 1979. This ensures the activity is acceptable to the Minister and does not damage the environment. Approval from NSW DPI is required for any subtidal culture infrastructure such as rafts and long-lines, for fences and for any change of species. New platforms and sheds are not permissible on an oyster lease and will not be approved. Any person who carries out an activity on a leased area, which is not approved by the Minister, is liable to have the lease and their aquaculture permit cancelled. An application to add species to an aquaculture lease will also require those species to be endorsed on the relevant aquaculture permit.
How can the renewal fee be paid?
There are several methods available for the payment of fees.
- Submit a cheque or money order with your application, made payable to Department of Trade & Investment.
- Pay at any office of NSW DPI using the methods available there and attach the receipt to the application.
- Complete the credit card section on the application form to make payment by credit card.
Is the processing fee refunded if the application is withdrawn or refused?
If an application to renew an aquaculture lease is withdrawn or refused, the Minister is not required to refund the processing fee. The department may however, refund the whole or part of the fee in such circumstances as considered appropriate.
What happens after an application is lodged?
When the application is lodged with the department it is checked to ensure the applicant has addressed all matters relating to the renewal. If anything is missing or outstanding, the application will be rejected and returned to the applicant for further action.
If all matters are in order the department accepts the application as being duly made. A fresh set of lease documents are prepared and sent to the applicant for signing. Both the original and duplicate documents must be signed, witnessed and returned to the department within 90 days of receipt. Failure to return the lease documents within this timeframe may result in the refusal of the application.
If the lease documents are returned within the 90-day deadline, the Minister's delegate endorses them and the renewal is published in the Government Gazette. The endorsed original lease documents are then sent to the lessee and the amended aquaculture permit, reflecting the term of the new lease, is sent to the permit holder.
Must the lease be covered by public liability insurance?
Yes. All aquaculture leases must be covered by public liability insurance. It is the responsibility of the permit holder, on whose permit the lease is authorised, to ensure that the lease is covered by public liability insurance. From time to time, NSW DPI may request information from aquaculture permit holders regarding their public liability insurance policy details.
What if the lessee chooses not to renew the lease, should they just ignore the renewal advice?
No. If a lessee chooses not to renew the lease they should advise the department in writing of their intent. The lease area must be in a suitable condition for return to public water land so all cultivation materials and any improvements must be removed from the lease area. If a lessee fails to make the area suitable for return to public water land the Minister may employ a third party to carry out the work, and court action taken to recover the cost of such work. Any lease security deposits will not be released unless the area is left in an acceptable condition.
Where can more information about renewing an oyster lease be obtained?
More information about renewing an oyster lease may be obtained from Aquaculture Administration at Port Stephens on 02 4982 1232.
Information about the Aquaculture Lease Area Condition Statement (ALAC)
What is the purpose of an ALAC?
The purpose of the ALAC is for all parties subject to the lease renewal to identify and agree on the condition of a lease area or work required, prior to the renewal being progressed. The ALAC aims to improve the time taken to process oyster lease transactions. The lease condition statements relate mainly to neat and tidy and marking provisions.
Where do I find information about lease condition standards?
Standards for lease marking, signs, neat and tidy, other structures, storage and mooring can be found in the NSW Oyster Industry Sustainable Aquaculture Strategy (OISAS) or by contacting Aquaculture Administration on 02 4982 1232.
What parts of the form must I complete?
All condition statements 1 to 11 must be answered and the ALAC declaration signed and dated. Photographs of the lease area with the lease number, date and time they were taken written on them must be attached. If the ALAC is incomplete the application will be rejected and returned to the applicant.
What if I answer No to any of the lease condition statements?
Where any one item from 1 - 11 on the ALAC is answered No the renewal application will be rejected unless there is an approved work plan. To obtain an approved work plan complete a work plan form. After completing the work plan form the District Fisheries Officer for the area where the lease is situated will need to approve and sign the work plan – always leave a message if the office is unattended. The approved work plan must then be submitted with the rest of the renewal application to NSW DPI Aquaculture Administration at Port Stephens. Alternatively, contact Aquaculture Administration on 02 4982 1232.
Who has to sign the ALAC declaration?
- All current aquaculture permit holders who have the lease number listed on their aquaculture permit.
- All current lessees (If two or more people own the lease they all must sign).
If the ALAC declaration is not signed by all parties the application will be returned as incomplete.
I do not agree with the answers on the lease condition statement. Do I have to sign it?
- DO NOT sign it until you agree with it.
- Talk with all parties involved and make it a truthful condition statement BEFORE anyone signs the declaration.
- If an agreement over the lease condition statement can not be made you can engage the District Fisheries Officer to complete the statement for all parties to sign. A fee of $250 is payable to NSW DPI for this service.
How do I get the District Fisheries Officer to complete the ALAC?
- Contact the NSW DPI District Fisheries Office for the area where the lease is situated.
- Once the ALAC has been completed and signed by the District Fisheries Officer it will be sent to all relevant parties for signature. All people involved in the transaction MUST sign the statement and submit it with the rest of the renewal application.
What happens if the condition statement is false or misleading?
Where false or misleading information is provided penalties may apply and the work may be completed by NSW DPI and costs recovered. Action may also be taken to have the lease and aquaculture permit suspended or cancelled.
- This checklist will help you to lodge a successful renewal application.
- Has the applicant completed every section of the application form?
- Are the lease deeds attached, or a statutory declaration for lost or destroyed documents completed and replacement fee submitted?
- Is the processing fee (made payable to Department of Trade & Investment), or receipt of such fee, or credit card details supplied with the application?
- Is the lease current at the time of application?
- Is the lease covered by current public liability insurance?
- Have any outstanding account matters been settled prior to the application?
- If a mortgage or other interest is noted on the lease documents, has the written consent of the mortgagee or other party been submitted with the application?
- If you have answered No to any of the lease condition statements 1 11 on the ALAC is an approved work plan attached?