A forestry right is defined in s.87A Conveyancing Act 1919 as an interest in land in which the person having the benefit is entitled to:
- enter the land
- establish, maintain and harvest a crop of trees on the land and
- construct and use buildings, works and facilities as may be necessary or convenient to enable the person to establish, maintain and harvest the crop.
It is, in effect, deemed to be a profit à prendre under s.88AB Conveyancing Act 1919.
A Forestry right does not create a subdivision under s.4B Environmental Planning and Assessment Act 1979.
A Forestry right may be created by either:
- a dealing registered under the Real Property Act 1900 based on either:
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- a registered deposited plan - being either a plan of survey or a plan of limited survey under cl.9 Surveying and Spatial Information Regulation 2012, or
- a compiled plan annexed to the dealing or
- registration of a Section 88B instrument with a new deposited plan comprising either a plan of survey or a plan of limited survey under cl.9 Surveying and Spatial Information Regulation 2012 or
- a deed registered in the General Registry of Deeds (Old System) based on either:
- a registered deposited plan - being either a plan of survey or a plan of limited survey under cl.9 Surveying and Spatial Information Regulation 2012 or
- a compiled plan annexed to the deed
Plan requirements
A plan lodged in NSW LRS to define a forestry right over part of a parcel may be either:
- a survey plan registered as a deposited plan or
- a limited survey plan prepared in accordance with cl.9 Surveying and Spatial Information Regulation 2012 and registered as a deposited plan or
- a compiled plan annexed to a forestry right document (RP dealing or OS deed).
If it is not intended to fully survey the proposed site, State Forests and the grantee must acknowledge in the forestry right document that the plan is either a clause 9 survey or a complied plan and that neither party has a right of action against the other for any loss arising from the plan or its boundaries being incorrect. The surveyor who prepares the plan must be satisfied that the accuracy of the plan provides adequate definition against all title and property issues. The Registrar General retains the right to require a full plan of survey at his discretion.
Note 1 A plan for forestry rights over 'belts of trees' must be a plan of survey. For further information regarding this particular type of plan see Tree belt plans information shown below.
Note 2 These directions do not override any additional requirements by the Surveyor General as set out in the Surveyor General's Directions for Survey Practice available on the NSW LRS Website.
Survey plan
A full survey plan may be prepared to accurately define the land to be affected by a forestry right. The plan must:
- be lodged as a deposited plan
- be prepared and signed by a registered surveyor
- define the land affected by full lines, bearings and distances
- tie the land affected into the title or current parcel boundary by bearings and distances
- disclose reference to all adjoining plans, including reference to any current forestry right or lease plans
- be marked in accordance with cl.18(6) Surveying and Spatial Information Regulation 2012
- comply with the survey control requirements for Clause 9 surveys - see 'Limited Survey pursuant to Clause 9' information below and notes 3, 4, 5 and 6, and
- be signed by all parties pursuant to s.195D Conveyancing Act 1919.
The residue of the current parcel identity remaining after the forestry right need not be shown. The plan heading must refer to a 'Plan of Proposed Forestry Right .....' unless it is accompanied by a section 88B instrument creating the rights.
Note Plans for forestry rights over 'tree belts' must also comply with cls.12(6) and 12(7) Surveying and Spatial Information Regulation 2012. For specific requirements affecting forestry rights over 'tree belts' see Tree belt plans information below.
Limited Survey pursuant to Clause 9
This type of plan does not have the strict accuracy of a full survey plan referred to above.
The use of this type of plan to define land in a registered document is a concession restricted, at this time, to forestry rights and agricultural leases and must comply with the following:
- be lodged as a deposited plan
- be prepared and signed by a registered surveyor
- define the land affected by full lines, bearings and distances
- ensure the parcel closes mathematically
- tie the land affected into the title or current parcel boundary by bearings and distances
- be prepared from:
- a survey made pursuant to cl.9 Surveying and Spatial Information Regulation 2012, or
- aerial photographs.
Note The 'Surveyor's Declaration' must be amended to delete reference to a survey under the Surveying and Spatial Information Regulation 2012 and a new statement as regards a Survey under Clause 9 added to the plan. This statement must also disclose the method used to derive the surround and location of the site of the forestry right.
- disclose reference to all adjoining plans, including reference to any current forestry right or lease plans
- comply with the survey control requirements set out in Appendix 1D to Chapter 7 of the Surveyor General's Directions for Survey Practice (see notes 3, 4, 5 and 6 below), and
- be signed by all parties pursuant to s.195D Conveyancing Act 1919.
Note
- The residue of the current parcel identity remaining after the forestry right need not be shown in the plan.
- The plan heading must refer to a 'Plan of Proposed Forestry Right' - unless it is accompanied by a Section 88B Instrument creating the rights.
- The orientation of the survey is to be determined from the coordinates of two established permanent marks if both marks are suitably located with respect to the area to be surveyed for forestry right.
- If established permanent marks are not available, the orientation can be obtained from a previous survey on public record, or from astronomical or satellite observations.
- Two permanent marks must be connected to the area affected. The Surveyor may use his discretion to decide whether to connect to existing permanent marks or to place and connect to two new permanent marks or a combination of both.
- If two permanent marks are placed, or one mark is placed and an existing permanent mark used as the second mark, the marks should be positioned as far apart as possible, but remain inter-visible.
- No further marking is required; however, fencing or any other occupation forming part of the boundary of the area affected by the right is to be shown on the plan.
Compiled plan
A compiled plan for forestry right purposes need not comply with the provisions set out in the compiled plans pages.
The use of this type of plan, which is compiled from information that is not available on public record, is a concession and must comply with the following:
- be lodged with an Real Property dealing or Old System deed (it is not acceptable as a deposited plan)
- be prepared and signed by a registered surveyor
- be mathematically correct, ie all parcels close
- have the surveyor's declaration suitably amended to reflect the above, by deleting reference to the Surveying and Spatial Information Regulation 2006
- ensure the surveyors declaration states the origin of the information, e.g. Clause 9, aerial photographs etc
- ensure the site of the forestry right is tied to the title or current parcel identification boundary by bearings and dimensions
- disclose reference to all adjoining plans, including reference to forestry right or lease plans which may have been lodged as deposited plans or annexed to dealings and
- be signed by all parties pursuant to s.195D Conveyancing Act 1919.
The residue of the current parcel identity remaining after the forestry right need not be shown.
Plans annexed to a Forestry Right document
NSW LRS has no objection to the inclusion in the forestry right document or the s.88B instrument of plans related to the terms of the particular forestry right providing:
- they are directly related to the land being defined for forestry right purposes in the plan
- they are prepared on 80 gsm white A4 paper
- they are clearly distinguished from the plan used to define the site of the forestry right
- they are used only to define land affected by certain terms of the document e.g. forestation areas, corridors, fire breaks or access ways
- they are not dimensioned in any way
- they do not use colour
- the purpose of the plan is clearly stated on the plan
- they comprise no more than 10 X A4 sheets, unless prior approval to additional sheets is obtained prior to lodgment and
- in the case of a Section 88B Instrument, they are prepared on A4 paper and confined only to Part 2 (the terms) of the instrument. The quality of the paper is the same as for the rest of the section 88B instrument.
Note This does not apply to a forestry right over 'belts of trees'. A forestry right over 'belts of trees' requires a plan of survey. See also plan requirements for forestry lease subdivisions under Agricultural lease page.
Tree belt plans
Plans prepared to indicate the part of a parcel intended as a proposed forestry right usually define the site in a manner similar to any other lease or profit à prendre ie as a quantum of land the boundaries of which are defined by bearings and distances. However, land managers are now creating forestry rights in a new format – over belts of trees of a specified width planted in rows across the parcel. The extent of each tree-belt is determined by co-ordinates obtained by GNSS techniques.
These tree-belt plans are used to define forestry rights created for both timber production and carbon sequestration purposes.
Definition on the plan
Any plan prepared to define tree belts intended to be subject to a forestry right must be lodged in NSW LRS as a deposited plan. The deposited plan must:
- be prepared and signed by a registered surveyor
- be prepared at a scale that satisfies NSW LRS guidelines as to drafting, contrast and reproduction scanning standards
- re-define by survey the boundaries of the parcel to be subject to the new forestry right(s)
- comply with the survey control requirements specified for a survey prepared using GNSS techniques pursuant to Clauses 12(6) and 12(7) Surveying Regulation 2012
- indicate on the face of the plan (by means of numbered thin lines) the approximate location of the centreline of each tree belt
- include a schedule of co-ordinates for each terminal and every change of direction of the centreline for every tree-belt along with the width and a total area of that tree belt.
Notification on the title
A tree-belt forestry right is endorsed on the affected certificate(s) of title in the format:
'AC1234546 Forestry Right [Timber/Carbon Sequestration/Etc] to......affecting tree belts 1-48, 50-56, and 363-364 shown in DP.....'
Some examples of deposited plans that depict tree-belt forestry rights are DP1094881 and DP1102148.
See also plan requirements for forestry lease subdivisions under Agricultural lease page.