pastoral lines issue no 1 july 2001

PastoralLinesOfficial Newsletter for the Pastoral Lands Board

No.1 July 2001

Fire Hotspots—how we detect them

Public access to pastoral leases

A word from the Chairman

Welcome to the first edition of the PLB News.

Since becoming Chairman I have been aware of the need to increase communication between the Board and pastoralists. For the Board to operate effectively it needs to understand and respond to issues that are facing the pastoral industry. This newsletter is intended to help assist in this process by

providing information and seeking feedback on a range of issues.

Many agencies and interest groups, both State and Commonwealth, are declaring a responsibility or at least an interest in rangeland management. It is my intent that one policy is developed for WA. As a starting point the Board is developing memorandums of understanding with agencies including the Department of Land Administration, Agriculture WA, CALM, Minerals and Energy and Fire and Emergency Services. It is intended that an ability to better respond to the needs of the industry will be achieved.

In general, many issues and challenges are facing the pastoral industry. Business diversification, for example, is an area that is fully supported by the Board. A permit diversification application package will be provided to all pastoralists to assist in this area. Please let the Board know how you find the package and how it and associated processes can be improved.

There has been concerns raised on the issue of a pastoralist who makes a profit on a permit activity potentially violating the terms of the lease.

Although most diversification activities need to be supplementary to the pastoral activity, it is the activity itself that needs to be supplementary,

rather than the income raised. There is no problem with a successful permit activity that is run in conjunction with a properly managed pastoral enterprise. Where adverse conditions limit pastoral income, diversification is seen as an important strategy in ensuring that a pastoral enterprise survives as a viable business.

Pastoral tenure is an area that is receiving considerable attention. All pastoral leases expire on 30 June 2015 and most leases will be renewed immediately for a term equal to that of the existing lease. As a result, under the current legislation security of tenure will in most cases continue until at least 2036 and up to 2064. Recent amendments to the Land Administration Act allowed offers of renewal to be made to 36 leases that missed out in the initial offers. Although it has been stated in various forums that pastoral tenure is being looked at it, the effect of native title on pastoral lease tenure is an important factor that needs to be resolved before any alternatives to the current renewal process can be seriously considered.

Another issue is the increasing pressure for third parties to access pastoral leases for fishing and tourism. This is an issue that is being addressed to some degree in this newsletter. Further work will continue, including advertising in The West Australian newspaper, on the rights of pastoral lessees.

Overall I am committed to improving processes and legislation that do not add value to the long-term sustainability of the pastoral industry. The recently released Issue 3 of the Southern Rangelands Herald painted a fairly bleak picture of pastoral lease administration. I can assure you that the views expressed by the Herald did not paint an accurate picture and that the Board is committed to supporting the pastoral industry. Your assistance and input is essential in achieving this goal.

Max Cameron

Contents4

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Dividing Fences Act

Shared waters on pastoral leases

Shared Water on Pastoral Leases

Firewatch tracks hotspots

Livestock trespass

Rangeland survey team projects

Rate increases as a result of changes to pastoral lease rents

Provision of watering points at cattle dispatch points


Amendments to the Land Administration Act

Photos courtesy of Ken Leighton DOLA

Pastoral Lands BoardPh: 9273 7073Fax: 9273 7684

Email: [email protected]: www.dola.wa.gov.au

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DividingDividing Fences Act

The issue of boundary fencing was discussed at the March meeting of the Board. It was asked if the Dividing Fences Act applied to the North West of the State.

The following comments have been provided by the Department of Land Administration (DOLA), however pastoralists should seek their own legal advice on these matters.

The Dividing Fences Act does apply to pastoral leases (where there is more than five years of the term left to run), for the following reasons:

1. Section 4 provides that the Act does not bind the Crown - this is not the same thing as the Act not applying to Crown land. That is, the Act does not bind the Crown as owner of Crown land, but it does apply to leasehold interests in Crown land held by lessees (including pastoral lessees).

2. Section 6 also provides that the Act does not affect any agreement between a landlord and tenant or between owners of adjoining lands relating to the cost of erecting or repairing dividing fences. The effect of this is that if the pastoral lease provides that the pastoral lessee is liable to contribute to the cost of constructing or repairing a dividing fence, then the Crown as landlord can enforce that lease provision against the pastoral lessee.

3. The definition of “owner” (s.5) includes the owner of freehold, any person entitled to receive the rent from land, or any person who is the holder of a lease of land the unexpired term of which is not less than five years at the time the relevant notice is given or the application is made. This would include the lessee of a pastoral lease.

The definition does not include:

• any trustees or other persons in whom land is vested as a public reserve, public park or for such other public purposes as may be prescribed, or a person who has the care, control and management of a public reserve, public park or land used for such other public purposes as may be prescribed (s.5); and

• any trustees or other persons in whom land is vested, or a person who has the care, control and management of land used, for open spaces, streets, roads, or rights of way that are public (reg.3).

4. The “owners” of adjoining lands not divided by a “sufficient fence” are liable to contribute

to the construction of a “dividing fence” (s.7).

A “dividing fence” is defined as a fence that separates the lands of different owners whether the fence is on the common boundary of adjoining lands or on a line other than the common boundary (s.5).

A “sufficient fence” (s.5) is:

• a fence prescribed as a sufficient fence by the relevant local government under a local law; or

• a fence of the description and quality agreed by the parties concerned; or

• if there no local law or agreement is made, any substantial fence that is ordinarily capable of resisting the trespass of cattle AND sheep; or

• any fence determined to be a sufficient fence by the Court of Petty Sessions.

Consequently, one way around the problem may be to put it back on the local government to pass a local law as to what is a sufficient fence, otherwise it must be one that is capable of resisting sheep AND cattle where there is no agreement reached between the parties concerned.

The Dividing Fences Act is currently under review and DOLA has commented that the five year limit should not apply to pastoral leases. This would ensure that the Dividing Fences Act would continue to apply the existing requirement for cost sharing between neighbouring pastoral leases between 2010 – 2015.

Shared waters on pastoral leasesOccasionally, the question arises as to how a pastoral lessee (Sheep Pastoral Co) of a pastoral lease (Sheep PL) can secure the right to share waters that are located near, but within, the boundary of an adjoining pastoral lease (Cattle PL) that is owned by another pastoral lessee (Cattle Pastoral Co).

Legally, the best way to protect a right of this type is by the grant of an easement.

Why an easement is best

An easement is a legal document that sets out the rights that an owner of land can exercise over another person’s land. The other owner of land is legally prevented from doing anything that would interfere with the enjoyment or exercise of those rights.

An easement:

• is a right granted in relation to land that is registered on the certificates of Crown land title relating to both pastoral leases;

• can be enforced in a Court by the parties to it;

• runs with the pastoral leases, so that whenever:

a) Sheep PL is transferred, Sheep Pastoral Co’s right to take the water automatically

transfers for the benefit of the new pastoral lessee of Sheep PL;

b) Cattle PL is transferred, Cattle Pastoral Co’s obligation to allow the water to be taken automatically transfers to bind the new pastoral lessee of Cattle PL.

The exact terms of the easement will depend on the circumstances of each case, including what watering facilities are actually being shared.

For example:

• an easement could give Sheep Pastoral Co the right to draw water from the shared watering point on Cattle PL and pipe it across that land to a trough on Sheep PL;

• Cattle Pastoral Co could not do anything to prevent that right from being enjoyed or exercised, for example, by destroying the well or digging up the pipes; and

• Responsibility for repairing and maintaining the shared water infrastructure would depend on what the parties agreed and was reflected in the easement.

There are two ways an easement can be created over a pastoral lease. However, in either case, it cannot be created without the agreement of both pastoral lessees, and all persons having

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a registered interest in both pastoral leases. This would include, for example, a mortgagee and a sublessee.

The two ways that an easement can be created are:

1. The Minister for Lands, through DOLA, has the authority to grant an easement over Cattle PL (with Cattle Pastoral Co’s consent) in favour of Sheep Pastoral Co and all future lessees of Sheep PL.

This easement will be effective until Sheep PL expires, is surrendered or is otherwise terminated.

2. Cattle Pastoral Co (with the Minister for Lands’ consent) could grant an easement over Cattle PL in favour of Sheep Pastoral Co and all future lessees of Sheep PL.

This easement will be effective until the first of Sheep PL and Cattle PL expires, is surrendered or is otherwise terminated.

In other words, if Cattle PL comes to an end before Sheep PL, then the easement would also come to an end, even though Sheep Pastoral Co was still using the shared waters.

In either case, the easement document will need to be prepared by a solicitor, and a plan that shows the easement area in sufficient detail would need to be prepared by a surveyor.

The difficulty, in some cases, is identifying precisely where the pastoral boundaries are located, so that the easement can be prepared to correctly reflect the location of shared watering points.

Difficulties with other types of agreements

In the past, adjoining owners may have tried to deal with the issue by entering into an agreement or another less formal arrangement that set out how shared waters are to be used. There can be difficulties with these agreements or arrangements, especially if they have not been registered (which is often the case).

These difficulties include:

• It might be difficult to prove the actual terms of the agreement or arrangement, especially if it is not in writing, and the parties who originally made the agreement or arrangement are no longer alive or involved in the management of the pastoral lease.

• Often these agreements or arrangements are not binding on subsequent pastoral lessees, especially where the pastoral lessee for Cattle PL has changed since the agreement was first reached.

It may be that in some cases these agreements or arrangements will nevertheless be enforceable by Sheep Pastoral Co against Cattle Pastoral Co, or that some other legal rights have arisen in the meantime. However, this will not always be the case. These agreements or arrangements may be satisfactory when the neighbouring pastoral lessees are on good terms with each other, but when there is a falling out these types of agreements or arrangements may provide little or no legal protection for either party.

Good neighbours

When neighbours are on good terms, it may seem unnecessary to put in place a formal easement. However, that is when an easement should be established. For a start, both parties will agree to it being created.

It is too late when there is a falling out between neighbours to try and create an easement because it is unlikely they will both consent. Therefore, if there is a disagreement between neighbours, they can refer to the existing easement to establish the rights and obligations of each party.

Whether an easement is registered, or there is some more informal agreement or arrangement in place, the rights will be enforced under them in the same way. It is up to the party that is not in breach – usually Sheep Pastoral Co – to enforce its rights against the other party, in a Court.

It is a matter for the parties to the easement to resolve. The Pastoral Lands Board would not have any power to intervene if a pastoral lessee breaches the terms of an easement (or any other agreement or arrangement).

It is said that good fences make good neighbours. The same can also be said for the creation of an easement for shared water facilities on adjoining pastoral leases.

The Department of Land Administration, through its Satellite Remote Sensing Services (SRSS) Group, has been providing fire hot spot (FHS) location information for regional and remote areas of Western Australia for the Fire and Emergency Authority since about 1990. The information provided to FESA includes the location of fires and areas burnt by fires. It is supplied on a daily basis using data downloaded from American weather satellites.

The satellites used in this service provide cover over the whole of Western Australia at least twice per day, but have some limitations. The first and obvious problem is cloud cover, which means that the satellite sensor cannot observe the ground. Under these conditions, no information can be provided. For example, limited information is available in the tropical regions of WA during the rainy season. The other important limitation is that the sensor used has a ground resolution of one kilometre. This means that an area 1km by 1km is seen by the satellite as one dot or colour. Therefore, if a fire burns less than about 200 hectares in area, we will not observe much change when viewing the satellite data.

As mentioned above, both Fire Hot Spots (FHS) and Fire Affected Areas (FAA) are measured from the information received from the satellite sensors. The FHS information is processed immediately on reception from the antenna, situated at Curtin University of Technology in Perth, and placed on a Web page.

This web information is available for public viewing at www.rss.dola.wa.gov.au/newsite/apps/firedetect.html. From here, click on “NOAA-AVHRR hotspot detection archive” to see a yearly listing. By clicking through year, month and day you will arrive at a list of satellite passes showing fires over WA. The list of names on the left will give a page showing fires ordered by latitude if clicked. By clicking on the “small map”, a picture similar to the one below will be presented.

Each red cross indicates a likely fire hot spot on the ground, while each green cross is less likely but still probably a fire. Clicking on the image will give a higher resolution view.

As the above information is forwarded to the local FESA regional office on a daily basis, please contact them for current fires.

As this information service provided by DOLA is continuously improving we would appreciate any feedback from pastoral land managers about errors in our maps, especially FHS that FIREWATCH lists that are not actually fires. SRSS, DOLA offers a prize of a single Landsat-TM satellite image (30m resolution) of the pastoral property which provides the most useful information on errors in their FHS predictions.

Any feedback, queries or reports of errors in FHS can be directed to Ron Craig, SRSS, DOLA on phone: 9340 9330, fax: 9383 7142 or email: [email protected].

Firewatch tracks hotspots


Generally livestock trespass issues are determined within the Local Government (Miscellaneous Provisions) Act 1960. There are also provisions in the Crimes Act 1914 regarding trespass of livestock onto Commonwealth land and under the Soil and Land Conservation Act 1945 in respect to any soil conservation reserve.

A local government may establish and maintain public pounds. It can also appoint staff to manage them and it can also appoint rangers.

Stock found trespassing on land may be impounded in the nearest public pound by the owner occupier of the land or by a ranger.

Where stock are not impounded, and it is proved to the satisfaction of a justice that it is not possible to impound the stock except at undue expense, and that the owner of the stock is unknown or cannot be found, the justice may order the destruction of the stock in a manner as he thinks fit.

Where there is not a public pound situated within five kilometres of the land, or if the pound cannot fit all the stock, the owner or occupier of land on which stock are found trespassing may impound the stock:

(a) Upon his land; or

(b) By arrangement with the owner of any adjacent land, upon that land.

The above also applies to livestock found wandering, straying or lying upon the road abutting the property.

A person impounding stock shall, within 24 hours of taking that action:

(a) If the owner of the stock is known to him, advise of the impounding together with details of:

• the number and kind of animals impounded;

• where they were found trespassing;

• the sum claimed for the animals’ sustenance;

• the sum claimed for damage, if any;

• the name of the person who impounded them; and

• the sum, if any, paid as rangers’ fees.

Notice may be given at the last known place of abode of the owner.

(b) If the owner of the stock is unknown to him, advise the nearest public pound keeper of the impounding providing the same details as in (a).

A person who impounds stock shall feed and maintain them while they are impounded. The owner or occupier who impounds the stock may claim and recover sustenance charges in addition to damages recoverable for the trespass of the stock on his land.

After 72 hours, if the owner of the stock has not paid to the owner or occupier of the land who impounded the stock the amount of damages in respect to the trespass of stock, together with the charges for the sustenance of the stock, the person may:

(a) impound the stock in the nearest public pound, or

(b) arrange with the local government the sale of the stock.

If stock is found trespassing upon land have been impounded, the owner of the stock may pay any sums claimed for damage, sustenance, or rangers’ fees before the stock have actually been impounded. Upon payment, the stock shall be released.

The Dividing Fences Act sets out fees for the sustenance of livestock whilst impounded and rates for damage by trespass.

In all situations, pastoralists should consult with their local authority prior to taking any action in relation to stock trespass. In addition, they may need to seek legal advice.

Livestock trespassThe joint DOLA, AgWA survey team has three projects in which it is currently involved.

The Pilbara Ranges project is expected to be ready for publishing in the 2001-2002 financial year. The writing is well advanced and the mapping is about half completed. A carrying capacity workshop was held at Mt Florance in April in conjunction with the Roebourne/Port Hedland LCDC, with participants from eight stations.

Rangeland survey team projects

The survey team then visited six stations along the Ashburton River to determine whether the area needs a more extensive assessment as a result of the spread of buffel grass. When the original survey was completed in 1976, buffel grass was not well established. Now it is widespread and concerns have been expressed that the carrying capacities assigned in 1976 do not reflect the current increased capacities of the stations.

The survey of the Nullarbor region began last year with two preliminary trips and attendance at an LCDC meeting. Another trip is being undertaken at present, which will be followed by the three-week main survey trips to be held throughout the year. The field work should be completed in 2002 with the publication of the technical report expected within another two to three years.

With the reassessment of pastoral lease rents, which came into affect on 1 July 1999, many rents were increased considerably because the last increase was back in 1987. Half the increase assessed by the Valuer General came into affect on 1 July 2000, with the remaining 50% increase due on 1 July 2001.

A Valuer General’s Office information letter sent to pastoral lessees last year on the process for pastoral lease rents, advised that the unimproved value (UV) of a lease for the purpose of grazing will be an amount equal to 20 times the annual rent. An increase in rent will mean a proportionate increase in the UV, with a flow-on effect to shire rates.

The approach taken by shires in adjusting rates as a result of the first increase to pastoral rents

Rate increases as a result of changes to pastoral lease rents

has been varied. Some shires have decreased their UV rates in the dollar, by using differential rating for pastoral leases. Others have maintained the current rate in the dollar or in some cases, increased it.

As advised by the Department of Local Government, each shire is responsible for setting its own rates. If lessees believe rate increases are too high and inequitable, they should first contact the shire to seek a mutually agreed position.

The Valuer General has notified shires in pastoral regions, advising of the changes in pastoral rents again in 2001 and the corresponding effect on unimproved values and rates.


STOCK INVESTIGATION c/- 32 Spring Park Road

Midland WA 6056Phone: 9250 3744Fax: 9250 3799

Pastoral Lands Board

In recent times Stock Investigation have become more aware of pastoral practices to send cattle long distances (up to 3,000 kilometres) without water.

On occasions these cattle have been mustered up to 30 kilometres by helicopter, held for a period in yards (without water) and then transported to Perth.

A recent inspection of a road train carrying cattle was a prime example. The cattle were seriously dehydrated and some had fallen lying on the floor.

There are no watering facilities at these yards.

I do not consider this acceptable. It is every primary producers responsibility to maintain their livestock.

Stock Investigation officers will be more vigilant in the future with regards this matter and would like all primary producers to consider their responsibilities and the possible outcome.

I have provided a copy of the relevant charge and penalty under the Prevention of Cruelty to Animals Act.

Prevention of Cruelty to Animals Act

Offences of cruelty

4. (1) It shall be an offence against this Act for any person to—

(b) fail to supply any domestic animal or captive animal other than those running at large with proper and sufficient food or water or sufficient protection against inclement weather; or

Penalty $5 000 or 12 months imprisonment.

I believe it is an important issue to provide watering points at these cattle dispatch points.

Please do not hesitate to contact the Stock Investigation should you have any further queries.

Provision of watering points at cattle dispatch pointsThe following letter was received from Detective Sergeant Tom Clay, the Officer in Charge of Stock Investigation, in relation to the need to supply water to mustered cattle prior to transporting over long distances.

The Board fully supports the concern expressed on this matter and encourages pastoralists to be aware of their ongoing responsibility to look after livestock beyond loading onto trucks for transport.

Access to pastoral leases by third parties including tour operators, fishermen and tourists has caused an increasing amount of debate in recent times, thus requiring the involvement of the lessees and the Board. The community at large has expectations regarding access to remote areas of interest, whether it be for fishing or passage through the land. Situations have also arisen where tour operators have been denied access to pastoral land after years of operation or have been asked to pay excessive fees to continue operations.

In general, multiple use of pastoral lands should be supported provided that the activities of the public do not adversely affect the pastoral operations or cause environmental damage to the land. Unfortunately the actions of the minority through actions including leaving gates open, damaging property, starting fires and leaving rubbish have in some cases resulted in access to pastoral land being denied to the public after many years of open access. This can lead to ill feeling against pastoralists who are simply trying to protect their livelihood.

A number of principles are considered to apply to the issue of public access over a pastoral lease:

• A pastoral lessee has a right of quiet enjoyment of the pastoral lease land.

• A pastoral lessee has obligations under a pastoral lease to maintain roads and improvements etc.

• A person (not acting under the authority of an Act) entering on to the pastoral lease land without the pastoral lessee’s authority or permission is a trespasser.

• A pastoral lessee may give others permission to enter on to pastoral lease land, subject to conditions such as charging fees provided that the pastoral lessee is predominantly using the lease for pastoral purposes.

• If permission to enter is granted to the public, any fee charged is to be no more than that required to cover costs involved in permitting access. Fees charged may be based upon apportionment of time involved in dealing with tour operators, tourists, maintenance costs of roads, liability insurance, property damage, stock loss or other relevant costs.

• Potential liability for pastoral lessees may exist in respect to persons entering pastoral leases, particularly when fees are charged for access.

• If fees charged are large enough to constitute an income rather than a cost recovery exercise, the pastoral land is being used for other than pastoral purposes.

• A permit under the Land Administration Act 1997 (LAA) must be applied for when the pastoral lessee is intending to use the land for non pastoral activities including station stay or tourism purposes.

• It is an offence under Section 106 of the LAA to use land under a pastoral lease for purposes other than pastoral, unless a permit has been issued by the Board.

To give some indication as to the potential size of the access issue, approximately 80 people recently attended a public meeting in Kalbarri regarding access to Murchison House Station. The local police arranged the meeting after many questions had been raised regarding public access to pastoral lease land and surrounding Crown land.

A major problem is that the public generally does not have an understanding of the rights and responsibilities of pastoral lessees. The Board is considering placing notices in newspapers advising the public on access rights. This would include reference to the right of lessees to charge reasonable fees as the land manager and to rescind access rights where irresponsible behaviour takes place.

A related issue that is currently being looked at by DOLA and the Board is camping on Crown land including pastoral leases. In particular a number of enquiries have been received in regard to coastal pastoral leases with boundaries at the 40 metre high water mark.

Pastoralists are encouraged to erect private property signs. The Pastoralists and Graziers Association has signs of this nature available for purchase.

Any questions or views that you may have on this complex area would be appreciated and will be covered in future editions of this newsletter.



Amendments to the Land Administration Act—exclusion of land from a pastoral lease in 2015 for a public purpose

A number of amendments have been made to pastoral provisions of the Land Administration Act 1997 (LAA) which took effect on the 7 December 2000.

Under the amendments, land may be excluded for a “public purpose” from a lease renewed in 2015 by giving notice to a lessee. The notice must be given within by 7 December 2002, which is two years from when the amendments came into effect.

It is intended that any proposed excision will be reviewed on its own merit and that the ability of a pastoral lease to continue as a viable business unit will be an important factor. As the Board is encouraging business diversification, it is considered reasonable that the impact on any activity the subject of a permit will also be relevant.

At this stage, the Department of Conservation and Land Management has tentatively identified about 35 leases that it may require areas from for conservation purposes.

The Board intends to let pastoral lessees know as soon as possible whether their lease will or will not be affected by a possible excision in 2015, rather than waiting for the end of the two-year period. Regular updates will be provided on the progress of this issue in future newsletters.

An overview of the amendments and an updated copy of Part 7 of the LAA will be provided to pastoralists.

Open meeting—Mt MagnetOn Friday 24 August 2001, the Pastoral Lands Board will hold an open meeting commencing at 2pm at the Recreation Centre, Lot 590 Laurie Street , Mt Magnet.

All pastoralists are invited to attend. You can register your interest and advise of any topics you may wish to discuss by phoning Monique Sorensen on (08) 9273 7073 or by email at [email protected] by 10 August 2001

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pastoral lines issue no 1 july 2001

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