OVERVIEW
OPTION BEING GRANTED TO
PASTORAL LESSEE OF L AND
WITHIN PASTORAL LEASE
AND
OVERVIEW
OPTION BEING GRANTED
TO PROPONENT ON UNALLOCATED
CROWN LAND
OVERVIEW
O P T I O N B E I N G G R A N T E D T O PA S T O R A L L E S S E E O F L A N D
W I T H I N PA S T O R A L L E A S E
In connection with the establishment and operation of
the agriculture project (the Project), the Minister for Lands
(the Minister) will grant an option deed (the Option) to the
Pastoral Lessee (the Proponent).
Under the Option the Minister will undertake to grant a four-year
lease (the Development Lease) to the Proponent to enable the
Proponent to occupy the land (the Agricultural Land) for the
construction and operation of the Project.
The grant of the Development Lease is subject to certain
conditions being satisfied within the three-year Option term
(the Conditions Precedent).
The Development Lease will contain a further option enabling
the Proponent to obtain either a 49-year lease or freehold (as
determined by the Minister prior to the grant of the Option)
(the Long Term Tenure) at the expiry of the Development Lease.
1.0 O P T I O N T E R M
The Proponent will be granted an Option for a period of three
years (the Option Term).
2 .0 C
ONDITIONS PRECEDENT
PRIOR TO DEVELOPMENT
LEASE
Upon the satisfaction of the Conditions Precedent by the
relevant dates set out in the Option, the Proponent will be
granted one Development Lease for the Agricultural Land.
The Proponent will be responsible for all costs associated with
satisfying the Conditions Precedent.
The Conditions Precedent are likely to include the following:
2.1 L AND CAPABILIT Y REPORT
During the first year of the Option Term, the Proponent will
obtain and submit a Land Capability Report confirming that the
land is suitable for the Project. The report must be prepared and
certified by a suitably qualified person.
2.2BUSINESS PL AN AND CONFIRMATION
OF FINANCIAL VIABILIT Y
During the second year of the Option Term, the Proponent will
obtain and submit a Business Plan which:
•
•
Demonstrates the feasibility and viability of the Project.
Includes details of financial modelling, funding sources, the
SOMETHING TO
REMEMBER
The Proponent will also need to submit a report
of an independent financial assessment of the
•
management of corporate structures for the Project, and
details of the Nominee (if relevant).
Demonstrates the Proponent’s financial and technical ability to
complete all necessary development for the Project during the
four-year term of the Development Lease.
Business Plan confirming that the Project is
likely to be viable.
1
V1 - 20.06.16
2.3 DEVELOPMENT PL AN
2.4 INDIGENOUS L AND USE AGREEMENT
No later than six months prior to the end of the Option Term,
Unless native title has previously been extinguished over the
the Proponent must prepare and submit a Development Plan
Agricultural Land, the grant of the Development Lease, Long
that complies with the minimum design specifications below,
Term Tenure, and any easements or other acts affecting land
for approval of the Minister, which, in the Minister’s discretion,
tenure that are required for the Project, will in most cases be
may be given, subject to conditions, or withheld.
‘Future Acts’ for the purposes of the Native Title Act 1993 (Cth)
•
•
•
•
•
The nature and scale of the proposed development including
concept plans.
The proposed farm layout.
The plans and specifications for the development and each
stage thereof.
Details of any easements for access or services that
are required.
The timetable and Project schedule including
Project milestones.
(NTA). These Future Acts will be listed as the ‘Agricultural Land
Transactions’ in the Option (the Agricultural Land Transactions).
The Proponent is required to work cooperatively and in good
faith with the relevant Native Title Parties in negotiating,
agreeing and procuring the registration at the National Native
Title Tribunal (NNTT) of an Indigenous Land Use Agreement
(the ILUA) as defined in section 253 of the NTA, prior to the
end of the Option Term in order to:
•
•
Ensure that the grant of the Agricultural Land Transactions are
valid for the purposes of that Act.
Confirm that native title rights and interests are suppressed
during the Development Lease and surrendered upon the grant
of the Long Term Tenure (and surrendered in respect of any
•
easements linked to that Long Term Tenure).
Deal with compensation and the release of the State’s liability.
DID YOU KNOW?
The ILUA must contain certain mandatory
provisions stipulated by the State and a
template ILUA will be provided by the State
to the Proponent.
The form and content of the ILUA must be agreed between
the Minister, the Proponent and the Native Title Party, and
the Minister must be a party to the ILUA as native title is
being surrendered.
The Proponent is responsible for all costs associated with the ILUA
including, without limitation, legal fees, duties, meeting costs,
negotiations and all compensation or other benefits payable to
Native Title Parties to secure agreement to the Project.
None of the Agricultural Land Transactions will be granted prior
to the registration of the ILUA.
2
V1 - 20.06.16
2.5APPROVALS
By the expiry of the Option Term, the Proponent must have applied
for and obtained (or verified that he or she will obtain) all relevant
approvals for the development of the Agricultural Land in accordance
with the approved Development Plan, including the following:
WATER APPROVALS
Approvals and agreements from all relevant State agencies and
instrumentalities for the supply of water to the Agricultural Land
including the Department of Water under the Rights in Water
and Irrigation Act 1914.
DEVELOPMENT APPROVALS
Development approvals, including planning approvals, zoning and
subdivision approvals.
FOREIGN INVESTMENT REVIEW BOARD APPROVAL
If relevant, necessary approvals required from the Foreign
Investment Review Board.
SURVEY
By the expiry of the Option Term, the Proponent must have
arranged at its cost and expense, the necessary graphic by a
licenced survey or according to survey instructions provided by
the Department of Lands (DoL), for the purposes of establishing
the boundaries of the Development Lease, any easements and
other grants of tenure, and the ILUA.
SURRENDER OF ANY EXISTING INTERESTS
If there are other rights and interests in the Agricultural Land
that need to be surrendered or removed, the Proponent must
arrange all required consents and signatures for the removal or
ENVIRONMENTAL APPROVALS
surrender of those interests by the end of the Option Term. An
Environmental approvals, including under the Environmental
example is where a caveat must be removed before any grant
Protection Act 1986 (WA) and the Environmental Protection and
can be registered on the title.
Biodiversity Conservation Act 1999 (Cth).
EASEMENT
ABORIGINAL HERITAGE APPROVALS
If the land does not have access to a dedicated road or if
Approval under the Aboriginal Heritage Act 1972 (WA), including
easements for water or other services are required, the Proponent
undertaking any Aboriginal heritage survey that may be required.
must arrange with the DoL, the preparation of the necessary
LOCAL GOVERNMENT APPROVALS
Necessary approvals required from the relevant Local
easement(s) and the required graphic of the easement area(s)
prior to the expiry of the Option Term.
Government for the Project.
3
V1 - 20.06.16
3.0 W
H AT H A P P E N S I F
CONDITIONS PRECEDENT
A R E N O T S AT I S F I E D D U R I N G
OPTION TERM?
4.0 W
H AT H A P P E N S W H E N T H E
CONDITIONS PRECEDENT
H AV E B E E N S AT I S F I E D ?
On satisfaction of the Conditions Precedent the Proponent is to
If the Proponent wants to pursue the Project but one or more of
exercise the Option and the State will grant the Development Lease.
the Conditions Precedent remain unsatisfied by the expiry of the
Once the documents are registered at Landgate, the
Option Term, the Proponent may seek an extension by giving
prior notice to the Minister.
The Minister may consider granting an extension if he or she is
Agricultural Land will no longer be within the Pastoral Lease.
The Proponent will instead hold the Agricultural Land under the
Development Lease.
satisfied that the Proponent has used his or her best endeavours
to satisfy the Condition Precedent but requires more time.
The decision whether or not to grant an extension rests with
the Minister.
If no extension is granted and the Option is terminated or
expires, no Development Lease or Long Term Tenure will
be granted and the Agricultural Land will remain within the
pastoral lease.
Neither party will have any liability to the other (including the
Proponent in respect of any costs it has incurred in pursuing
the Project, including in preparing or submitting its proposals,
obtaining approvals, or satisfying any Condition Precedent).
5 .0 T
HE OPTION IS NOT
TRANSFERABLE BUT THE
PROPONENT MAY NOMINATE
ANOTHER BODY TO HOLD
THE LEASE
The Option is not transferable. It is personal to the Proponent
and the Proponent cannot assign or transfer the Option to
anyone else.
It is recognised that in some cases the Proponent may want the
Development Lease to be granted to a third party; for example,
the Proponent and an investor may establish a new company
to hold the Development Lease. In such cases, the Proponent
SOMETHING TO
REMEMBER
Neither the Minister nor the State is responsible for
any costs associated with the Option, Development
Lease, Long Term Tenure or the Project. It is a key
principle of the Option that the Proponent accepts
all risks relating to the Project and all costs.
4
may ask the Minister to grant the Development Lease to the
Proponent’s nominee (the Nominee) instead of the Proponent.
The Minister will not unreasonably withhold consent to that
request where the Nominee is described in the Business Plan,
is a related corporation to the Proponent, is a person of good
financial standing with the financial and technical ability to carry
out the Project and has procured any deed of assignment that
may be required under the ILUA.
V1 - 20.06.16
6.0 N
O R E P R E S E N TAT I O N S T H AT
T H E L A N D I S S U I TA B L E F O R
THE PROJECT
8 .0 O
PTION DOCUMENT
S U B J E C T T O VA R I AT I O N
The Option as described in this overview is a standard document
The Minister makes no warranties or representations about the
suitability or safety of the Agricultural Land for the Project.
The Minister will not be responsible or liable in any way for the
success or otherwise of the Project or for any losses suffered or
that is indicative of the likely form and contents of an Option
granted to a Proponent for a Water for Food project. The Option
as granted in any case may vary from the above to take account
of the nature and circumstances of the particular Project.
incurred by the Proponent in undertaking any part of the Project.
7.0 O P T I O N F E E
A non-refundable option fee of $1,000 will be payable for the
Option, plus GST of $100.
5
V1 - 20.06.16
OVERVIEW
OPTION BEING GRANTED TO PROPONENT ON
U N A L L O C AT E D C R O W N L A N D
In connection with the establishment and operation of
the agriculture project (the Project), the Minister for Lands
(the Minister) will grant an option deed (the Option) to the
Pastoral Lessee (the Proponent).
Under the Option the Minister will undertake to grant a fouryear lease (the Development Lease) to the Proponent to enable
the Proponent to occupy land (the Agricultural Land) for the
construction and operation of the Project.
The grant of the Development Lease is subject to certain
conditions being satisfied within the three-year Option term
(the Conditions Precedent).
The Development Lease will contain a further option enabling
the Proponent to obtain either a 49-year lease or freehold (as
determined by the Minister prior to the grant of the Option)
(the Long Term Tenure) at the expiry of the Development Lease.
1.0 O P T I O N T E R M
The Proponent will be granted an Option for a period of three
years (the Option Term).
2 .0 C
ONDITIONS PRECEDENT
PRIOR TO DEVELOPMENT
LEASE
Upon the satisfaction of the Conditions Precedent by the
relevant dates set out in the Option, the Proponent will be
granted one Development Lease for the Agricultural Land.
The Proponent will be responsible for all costs associated with
satisfying the Conditions Precedent.
The Conditions Precedent are likely to include the following:
2.1 L AND CAPABILIT Y REPORT
During the first year of the Option Term, the Proponent will
obtain and submit a Land Capability Report confirming that the
land is suitable for the Project. The Report must be prepared and
certified by a suitably qualified person.
2.2BUSINESS PL AN AND CONFIRMATION OF
FINANCIAL VIABILIT Y
During the second year of the Option Term, the Proponent will
obtain and submit a Business Plan which:
•
•
Demonstrates the feasibility and viability of the Project.
Includes details of financial modelling, funding sources, the
SOMETHING TO
REMEMBER
•
management of corporate structures for the Project, and
details of the Nominee (if relevant).
Demonstrates the Proponent’s financial and technical ability to
complete all necessary development for the Project during the
four-year term of the Development Lease.
The Proponent will also need to submit a report of
an independent financial assessment of the Business
Plan confirming that the Project is likely to be viable.
6
V1 - 20.06.16
2.3 DEVELOPMENT PL AN
2.4 INDIGENOUS L AND USE AGREEMENT
No later than six months prior to the end of the Option Term,
Unless native title has previously been extinguished over the
the Proponent must prepare and submit a Development Plan
Agricultural Land, the grant of the Development Lease, Long
that complies with the minimum design specifications below, for
Term Tenure, and any easements or other acts affecting land
approval of the Minister, which, in the Minister’s discretion, may
tenure that are required for the Project, will in most cases be
be given, subject to conditions, or withheld.
‘Future Acts’ for the purposes of the Native Title Act 1993 (Cth)
•
•
•
•
•
The nature and scale of the proposed development
including concept plans.
The proposed farm layout.
The plans and specifications for the development and each
stage thereof.
Details of any easements for access or services that
are required.
The timetable and Project schedule including
Project milestones.
(NTA). These Future Acts will be listed as the ‘Agricultural Land
Transactions’ in the Option (the Agricultural Land Transactions).
The Proponent is required to work cooperatively and in good
faith with the relevant Native Title Parties in negotiating,
agreeing and procuring the registration at the National Native
Title Tribunal (NNTT) of an Indigenous Land Use Agreement
(the ILUA) as defined in section 253 of the NTA, prior to the
end of the Option Term in order to:
•
•
Ensure that the grant of the Agricultural Land Transactions are
valid for the purposes of that Act.
Confirm that native title rights and interests are suppressed
DID YOU KNOW?
The ILUA must contain certain mandatory provisions
during the Development Lease and surrendered upon the grant
of the Long Term Tenure (and surrendered in respect of any
•
easements linked to that Long Term Tenure).
Deal with compensation and the release of the State’s liability.
stipulated by the State and a template ILUA will be
The form and content of the ILUA must be agreed between
provided by the State to the Proponent.
the Minister, the Proponent and the Native Title Party, and
the Minister must be a party to the ILUA as native title is
being surrendered.
The Proponent is responsible for all costs associated with
the ILUA including, without limitation, legal fees, duties,
meeting costs, negotiations and all compensation or other
benefits payable to Native Title Parties to secure agreement
to the Project.
None of the Agricultural Land Transactions will be granted prior
to the registration of the ILUA.
7
V1 - 20.06.16
2.5APPROVALS
By the expiry of the Option Term, the Proponent must have
applied for and obtained (or verified that he or she will obtain) all
relevant approvals for the development of the Agricultural Land
in accordance with the approved Development Plan, including
FOREIGN INVESTMENT REVIEW BOARD
APPROVAL
If relevant, necessary approvals required from the Foreign
Investment Review Board.
SURVEY
the following:
By the expiry of the Option Term, the Proponent must have
WATER APPROVALS
licenced survey or according to survey instructions provided by
Approvals and agreements from all relevant State agencies and
instrumentalities for the supply of water to the Agricultural Land
including the Department of Water under the Rights in Water
and Irrigation Act 1914.
DEVELOPMENT APPROVALS
Development approvals, including planning approvals, zoning and
subdivision approvals.
ENVIRONMENTAL APPROVALS
Environmental approvals, including under the Environmental
arranged at its cost and expense, the necessary graphic by a
the Department of Lands (DoL), for the purposes of establishing
the boundaries of the Development Lease, any easements and
other grants of tenure, and the ILUA.
SURRENDER OF ANY EXISTING INTERESTS
If there are other rights and interests in the Agricultural Land
that need to be surrendered or removed, the Proponent must
arrange all required consents and signatures for the removal
or surrender of those interests by the end of the Option Term.
An example is where a caveat must be removed before any
Protection Act 1986 (WA) and the Environmental Protection and
grant can be registered on the title.
Biodiversity Conservation Act 1999 (Cth).
EASEMENT
ABORIGINAL HERITAGE APPROVALS
If the land does not have access to a dedicated road or if
Approval under the Aboriginal Heritage Act 1972 (WA), including
undertaking any Aboriginal heritage survey that may be required.
LOCAL GOVERNMENT APPROVALS
Necessary approvals required from the relevant Local
easements for water or other services are required, the
Proponent must arrange with the DoL, the preparation of the
necessary easement(s) and the required graphic of the easement
area(s) prior to the expiry of the Option Term.
Government for the Project.
8
V1 - 20.06.16
3.0 W
H AT H A P P E N S I F
CONDITIONS PRECEDENT
A R E N O T S AT I S F I E D D U R I N G
OPTION TERM?
4.0 W
H AT H A P P E N S W H E N T H E
CONDITIONS PRECEDENT
H AV E B E E N S AT I S F I E D ?
On satisfaction of the Conditions Precedent the Proponent
If the Proponent wants to pursue the Project but one or more
of the Conditions Precedent remain unsatisfied by the Option
is to exercise the Option and the State will grant the
Development Lease.
expiry date, the Proponent may seek an extension by giving prior
notice to the Minister.
The Minister may consider granting an extension if he or she is
satisfied that the Proponent has used his or her best endeavours
to satisfy the Condition Precedent but requires more time.
The decision whether or not to grant an extension rests with
the Minister.
If no extension is granted and the Option is terminated or
expires, no Development Lease or Long Term Tenure will
be granted. Neither party will have any liability to the other
(including the Proponent in respect of any costs it has
incurred in pursuing the Project, including in preparing or
submitting its proposals, obtaining approvals, or satisfying
any Condition Precedent).
5 .0 T
HE OPTION IS NOT
TRANSFERABLE B U T T H E
P R O P O N E N T M AY N O M I N AT E
ANOTHER BODY TO HOLD
THE LEASE
The Option is not transferable. It is personal to the Proponent
and the Proponent cannot assign or transfer the Option to
anyone else.
It is recognised that in some cases the Proponent may want the
Development Lease to be granted to a third party; for example,
the Proponent and an investor may establish a new company
to hold the Development Lease. In such cases, the Proponent
may ask the Minister to grant the Development Lease to the
Proponent’s nominee (the Nominee) instead of the Proponent.
The Minister will not unreasonably withhold consent to that
SOMETHING TO
REMEMBER
request where the Nominee is described in the Business Plan,
Neither the Minister nor the State is responsible for any
out the Project and has procured any deed of assignment that
costs associated with the Option, Development Lease,
is a related corporation to the Proponent, is a person of good
financial standing with the financial and technical ability to carry
may be required under the ILUA.
Long Term Tenure or the Project. It is a key principle of the
Option that the Proponent accepts all risks relating to the
Project and all costs.
9
V1 - 20.06.16
6.0 E N T R Y O N T O O P T I O N A R E A
8 .0 O P T I O N F E E
The Option does not confer upon the Proponent the right
A non-refundable option fee of $1,000 will be payable for the
to enter upon the Agricultural Land. If access is required,
Option, plus GST of $100.
and subject to the consent of the relevant Native Title Party,
the Minister will grant the Grantee an accompanying licence
(the Licence) for part or all of the Option Term, for the purpose
of carrying out feasibility and investigative works in relation to
the Agricultural Land so that the Proponent can satisfy the
Conditions Precedent. These feasibility and investigative works
must include geotechnical, engineering and environmental
investigations and surveys, and any other investigations
required for or incidental to the development of any part of the
Agricultural Land.
9.0 O
PTION DOCUMENT
S U B J E C T T O VA R I AT I O N
The Option as described in this overview is a standard document
that is indicative of the likely form and contents of an Option
granted to a Proponent for a Water for Food project. The Option
as granted in any case may vary from the above to take account
of the nature and circumstances of the particular Project.
7.0 N
O R E P R E S E N TAT I O N S T H AT
T H E L A N D I S S U I TA B L E F O R
THE PROJECT
The Minister makes no warranties or representations about the
suitability or safety of the Agricultural Land for the Project.
The Minister will not be responsible or liable in any way for the
success or otherwise of the Project or for any losses suffered
or incurred by the Proponent in undertaking any part of
the Project.
10
V1 - 20.06.16
This work is copyright. Apart from any use permitted under the Copyright Act 1968, no part may be reproduced by any process,
nor may any other exclusive right be exercised, without the permission of the Minister for Lands, Department of Lands.