NSW Department of Primary Industries

Aquaculture permit and lease holder responsibilities

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Aquaculture permits

Aquaculture permits are issued under section 146 of the Fisheries Management Act 1994 (the Act). There are 6 different classes of permit that can be issued, which are defined in clause 4 of the Fisheries Management (Aquaculture) Regulation 2017 (the Regulation).

Aquaculture is prohibited except in accordance with a permit (s. 144 of the Act).

The permit gives the holder the authority to take fish of the species authorised by the permit from within the area authorised by the permit (s. 149 of the Act).

Aquaculture permits remain in force until they are cancelled. Aquaculture permits are not transferable (s. 151 of the Act).

Responsibilities of the permit holder

All aquaculture permit holders must be aware of their obligations under the Act and Regulations. Specific provisions relating to aquaculture are described in part 6 of the Act (sections 142 – 191) and in the Regulation. Other sections of the Act and the Fisheries Management (General) Regulation 2019 may also have provisions that must be observed.

This section describes some of the responsibilities of permit holders that are not permit conditions. Permit holders are advised to become familiar with the relevant legislation and to seek their own legal advice if necessary.

Permit holders are required to provide information if required by the Minister (s. 153 of the Act). For example, a permit holder must submit their annual production return.

A permit holder must pay an annual contribution for the cost of administration and research (s. 156 of the Act). If these amounts become overdue, interest may be charged and debt recovery action will commence (s. 158 of the Act).

Class A and B permit holders whose permit authorises an aquaculture lease must enter into a lease security arrangement of either a $1,000 per hectare cash deposit or bank guarantee (clause 21 of the Regulation). Class A permit holders with class 1 (oyster) leases have the option of paying the non-refundable annual lease security contribution (clause 25 of the Regulation).

A current aquaculture lease must be kept in a tidy condition by the permit holder authorised to use that area for aquaculture (s. 162 of the Act). Best practice standards are detailed in Chapter 7 of the NSW Oyster Industry Sustainable Aquaculture Strategy (OISAS) 2021.

NSW DPI compliance officers inspect aquaculture leases once every 3 years and issue notices for non-compliance. If a permit holder does not comply with a notice, further action may include penalty notices. If non-compliance continues, contractors may be engaged to complete the clean-up work. The relevant permit holder is then charged for the associated clean-up costs (s. 162 of the Act).

A permit may be cancelled at the request of the permit holder or if the permit holder dies or ceases to exist (s. 159 of the Act).

The permit may also be cancelled by the Minister following a hearing for various breaches of the permit conditions and/or mismanagement (s. 160 of the Act). In summary, reasons for permit cancellation include:

  • The permit application was false or misleading
  • The permit holder has contravened the Act or Regulation
  • The permit holder has contravened a condition of the permit
  • The permit holder has been convicted of stealing fish or marine vegetation
  • The permit holder is not undertaking aquaculture in line with their commercial farm development plan (CFDP)
  • The authorised area has been varied since the issuance of the permit and an application for a permit over that area would be refused under s. 146 of the Act
  • In the case of a permit that authorises an aquaculture lease, the area is not being used for the purpose of aquaculture
  • In the case of a permit that authorises an aquaculture lease, the area is being mismanaged
  • The Minister is otherwise authorised to cancel the permit.

Before a permit is cancelled, the Minister is required to give the permit holder an opportunity to make written submissions on the matter (s. 160(2) of the Act). The permit holder may also apply to the Civil and Administrative Tribunal for a review of any decision to cancel a permit (s. 160(5) of the Act).

A permit holder may be declared disqualified from holding an aquaculture permit (s. 161 of the Act).

Aquaculture permit conditions

Conditions are placed on aquaculture permits in line with section 152 of the Act and the Regulation to protect the environment and to manage the aquaculture industry.

There are 3 different types of permit conditions, but all conditions apply equally:

  • Standard conditions: these apply to all current aquaculture permit holders.
  • Specific conditions: these apply to a group of aquaculture permit holders and are generally related to the type of species being cultured, the culture or infrastructure type, or the class of aquaculture permit.
  • Special conditions: these apply to a single permit holder and relate to matters that are unique to that holder’s aquaculture permit.

Permit holders must check their permit to see what conditions apply. The holder of an aquaculture permit is guilty of an offence if, without lawful excuse, a condition of their permit is contravened (section 152(3) of the Act).

All standard and specific permit conditions are available on here.

Aquaculture leases

Aquaculture leases are granted for a maximum term of 15 years (s. 163(5) of the Act) with first right of renewal for a further 15 years (s. 167 of the Act) and subsequent preferential renewal (s. 168 of the Act) if the area remains available for aquaculture and the terms and conditions of the lease have not been breached (s. 168(3) of the Act). Preferential renewal expires 30 days after the expiry of the lease (s. 168(2) of the Act).

The lessee has the right to undertake authorised aquaculture on their lease (if they also hold an aquaculture permit to authorise the activity) but does not have exclusive possession of the leased area (s. 164(2) of the Act). The lease area is subject to the public right of fishing however it is an offence for a person to interfere or damage anything on a leased area (s. 164(3) & (4) of the Act and s. 179 of the Act).

Responsibilities of the lessee

A lessee must pay lease rent (s. 165 of the Act). Interest may be charged on overdue rental amounts (s. 166 of the Act).

Leases must be marked in accordance with clauses 55 and 58 of the Regulation. Marking requirements are detailed in the NSW Oyster Industry Sustainable Aquaculture Strategy (OISAS) 2021.

When a lease expires or is otherwise terminated, the former lessee is responsible for the removal of all improvements from the area so that only open water remains (s. 171 of the Act). If the lessee fails to clean up a terminated lease, NSW DPI will engage contractors to complete the work. The relevant lessee is then charged for the associated clean-up costs (s. 171 of the Act).

If a lessee has outstanding payment obligations or clean-up responsibilities under s. 171 of the Act, NSW DPI may refuse to process any lease transactions until those responsibilities are met.

A lease may be transferred (s. 173 of the Act), sublet (s. 172 of the Act), surrendered (s. 174 of the Act), consolidated (clause 48 of the Regulation), subdivided (clause 49 of the Regulation) or transmitted (clause 46 of the Regulation) with the Minister’s consent.

The Minister may require the lessee to have a lease resurveyed as part of the granting or renewal of that lease (s. 169 of the Act).

The lessee must seek approval from NSW DPI for the following:

  • Raft cultivation
  • Oyster dredging
  • Wave barrier fencing
  • Spray irrigation.

The Minister can determine access ways (s. 175 of the Act) or withdraw land from a lease (s. 176 of the Act). The Act makes provision for compensation to the lessee in these cases.

Development consent and approval from NSW DPI is required to carry out dredging or reclamation work on a leased area (s. 201 of the Act).

Approval is required to harm marine vegetation unless it is being cultivated under the authority of an aquaculture permit (s. 204A, 204B and 205 of the Act).

A lease may be cancelled by the Minister following a hearing for various breaches of the legislation and/or mismanagement (s. 177 of the Act). In summary, reasons for lease cancellation include:

  • The lease is not being used for the purpose for which it was granted or no aquaculture is being undertaken
  • The lease area is polluted such that the produce is unfit for human consumption
  • The lessee has overdue lease rent
  • The lessee has breached a condition of the lease.

Before a lease is cancelled, the Minister is required to give the lessee an opportunity to make written submissions on the matter (s. 177(3) of the Act). The lessee may also apply to the Civil and Administrative Tribunal for a review of any decision to cancel a lease (s. 177(4) of the Act).

Biosecurity

Oyster shipment controls

Clauses 10 to 13 of the Regulation controls the movement of oysters and material between estuaries. The requirement to report all shipments apply to all class A and B permit holders.

Release and importation

Permit holders are not authorised to release into any waters any live fish (s. 216 of the Act) unless there is a condition on their aquaculture permit that authorises this activity. The permit holder must apply for this condition to be added to their permit. Without this permit condition, a permit holder is only authorised to stock the species listed on their permit onto their aquaculture farm or lease area.

Also permit holders are not authorised to import certain fish and marine vegetation listed in Schedule 5 of the Fisheries Management (General) Regulation 2019 unless under the authority of a permit issued by the Minister (s. 217 and 217A of the Act).

Compliance

In accordance with s. 253 of the Act, a Fisheries Officer may, at any time of the day, enter any area that is authorised by an aquaculture permit and examine the area and the aquaculture undertaken in the area. Under s. 247 of the Act, a person who, without reasonable excuse, resists or obstructs a Fisheries Officer in the exercise of the officer’s functions under this Act is guilty of an offence.

More information

Please contact Aquaculture Administration via email at aquaculture.administration@dpi.nsw.gov.au

www.dpi.nsw.gov.au