Transfer aquaculture lease - information kit

When does an aquaculture lease need to be transferred?

The transfer of an aquaculture lease is required when a lessee sells a current lease to another party. The transfer of the lease, if approved by the Minister, formalises the change in ownership of the lease. A joint application from both parties is required.

Who is the transferor and the transferee?

Transferor - the individual or company who currently owns the lease and is making application to transfer the lease to another party.

Transferee - the individual or company to whom the lease will be transferred to.

When can an aquaculture lease be transferred?

An application to transfer a lease may be lodged at any time while the lease is current. If the lease is about to expire, a renewal application must be submitted with the transfer application. A lease cannot be transferred if it has expired or is otherwise terminated.

If a mortgage or other interest is endorsed on the lease documents, a transfer application will not be progressed without the written consent of the party who has a registered interest in the lease.

How is an application to transfer a lease duly made?

  • Complete the lease transfer application form (link provided above). This involves completing every section of the form in clear and legible print. Ensure all parties (transferees and transferors) sign the form. An incomplete application form will be rejected.
  • Attach the original lease documents. If the lease documents are lost or destroyed, the current lessee must submit a request to replace the lease documents (fee applies).
  • Submit payment of the application fee (refer to the aquaculture fee schedule).

What if there is a structure on an aquaculture lease to be transferred?

The application form asks for information about the presence of structures on the lease to be transferred, including sheds, jetties, work platforms, fences, etc. A transfer application may not be progressed if the lease has an illegal structure on it. Illegal structures may need to be removed, or necessary approvals gained, prior to the transfer being completed.

Will the lease area need to be surveyed?

Not unless the current lease area is inconsistent with the lease plan. In these cases, the Minister may require that the area be surveyed at the expense of the lessee before the transfer can be progressed.

Why does the transferee need to nominate a tenancy arrangement for the lease?

A lease may be held under either a Common tenancy or Joint tenancy arrangement.

Under Joint tenancy, following the death of one of the lessees, the lease is automatically transmitted to any surviving lessees. Only leases held by a partnership can be held under a Joint tenancy arrangement.

Under Common tenancy, the portion of the lease held by the deceased lessee is transmitted according to their Last Will and Testament and/or at the direction of the Executor of the Estate. For leases held by an individual or company, the tenancy arrangement will default to Common tenancy.

If the new lessee does not nominate a tenancy arrangement in the transfer application form, the tenancy arrangement will default to Common tenancy.

A lessee can request a change to the tenancy arrangement on their current leases at any time in writing. The only time when this cannot occur is when the leases are already affected by the death of a lessee and are pending transmission.

Does the transfer of an aquaculture lease attract stamp duty?

No. Following changes to the Duties Act 1997 in 2016, the transfer of an aquaculture lease is not liable for stamp duty.

What happens to the transferor’s and transferee’s lease security arrangement?

Transferor - if their lease security arrangement is annual contribution, there will be no adjustment to the arrangement (annual contribution is not refundable). If their lease security arrangement is bank guarantee or cash deposit, an adjustment to the arrangement may occur if the lease transfer results in a decrease in the total permit area.

Transferee - if the lease security arrangement is annual contribution, there will be no adjustment to the arrangement unless the transferor had a bank guarantee or cash deposit arrangement. In these cases, an adjustment to the arrangement may be required if the lease transfer results in an increase in total permit area.

What happens to the lease and permit fees when a lease is transferred?

Lease rent and permit fees that have been charged to the transferor’s account for the current billing period are not refundable or transferable. They remain the responsibility of the transferor.  If the transferor wishes to recoup these fees, then these fees should be considered when negotiating a sale price for the lease.

After the transfer has been completed, lease and permit fees will be redirected to the new lessee and permit holder in the next billing period (on 1 July).

Can a lease be transferred to any person?

No. The transferee must:

  • not be an individual, corporation or director of a corporation who is disqualified from holding an aquaculture permit under section 161 of the Fisheries Management Act 1994.
  • not be an individual or corporation with outstanding lease or permit fees payable to the Minister.
  • not be an individual or corporation who, in the Minister's opinion, is considered to have a poor record of managing one or more other leased areas.

Does the transferee need to hold an aquaculture permit?

All aquaculture leases must be held under the authority of a current class A aquaculture permit. If the transferee does not hold a current permit, they may either:

  • sublet the lease to a current class A or class B permit holder, or
  • lodge an application for a new class A or class B aquaculture permit.

A lessee is not authorised to undertake aquaculture on their lease unless they hold a current aquaculture permit.

How can the transfer application fee be paid?

Payment options are provided on the lease transfer application form.

Is the application fee refundable if the application is withdrawn or refused?

If an application to transfer an aquaculture lease is withdrawn or refused, NSW DPI is not required to refund the application fee. NSW DPI may, however, refund the whole or part of the fee if appropriate.

What happens after an application to transfer a lease is lodged?

NSW DPI will check to ensure the applicants have addressed all matters relating to the lease transfer. If anything is missing or outstanding, the application will not be progressed until the outstanding requirements are met. If these are not met in a reasonable timeframe, the application may be refused.

Once all requirements are met, NSW DPI will endorse the lease documents with the details of the new lessee (transferee). The endorsed original lease documents are returned to the new lessee for safekeeping. An updated aquaculture permit is sent to the relevant permit holder.

Under what circumstances would an application to transfer a lease be refused?

An application to transfer an aquaculture lease may be refused if:

  • the transferee is disqualified from holding an aquaculture permit.
  • the applicants fail to submit or complete any requirements of the transaction within a specified timeframe.
  • the applicants have overdue debt which has been outstanding for more than 90 days.
  • the applicants have failed to clean up a previously terminated lease area.
  • the transfer of the lease is not in the public interest.

Before an application is refused, NSW DPI may write to the applicants inviting them to lodge objections to the refusal of the application.

Where can I get more information about transfer applications?

For more information, contact Aquaculture Administration via email at aquaculture.administration@dpi.nsw.gov.au.

Application checklist

This checklist will help you to lodge a successful application.

  • Have you completed every section of the application form?
  • Has the application form been signed by all transferors and transferees?
  • Does the transferee hold a current aquaculture permit, or have they lodged an application to sublet the lease being transferred, or an application for a new class A aquaculture permit?
  • Have the original lease documents been attached to the application, or have you lodged a request to replace the lease documents (fee applies)?
  • Is the lease current at the time of application? If the lease is about to expire, have you lodged an application to renew the lease?
  • Have you paid any outstanding aquaculture lease and permit fees?
  • Have you addressed all outstanding clean up responsibilities on any expired or otherwise terminated lease area?
  • If a mortgage or other interest is endorsed on the lease documents, do you have the written consent of the mortgagee?