According to a title registered over the proposed Gunns Ltd Pulp Mill site, construction of the Longreach Pulp Mill associated water detention infrastructure is limited to a depth of “50 feet” or approximately 13 metres. The limitation appears to be the result of a old land title which underlies a stretch of land from South Street, George Town to an area known as the “Fourteen Mile”.
The title, folio number 252678/1, which is visible on theLIST system, underlies many other titles including the George Town Golf Club, the George Town sewerage treatment plant and the Bell Bay Power Station.
The map above showing the overlapping of folios 154929/1 and 252678/1.
The area of the proposed pulp mill is also subject to a height restriction. TheLIST system has the ability to show overlapping parcels of land if they are strata titled and limitations of depth and height are linked in some ways with strata titling.
The Limited in Depth title restricts ownership of the land to a depth of 50 feet and reserves the remainder for the Crown. The face of the title depicts the following as being in the ownership of the Crown.
So much of that piece of land as lies below the depth of fifty feet from the surface thereof saving as to wells and springs
It is not clear what date the Limited in Depth Title 242678/1 was issued as the Date of Issue on the front of the title only refers to the date of issue of the 2nd Edition of that particular title.
Limited in Depth Title
While the title is in the ownership of the Crown, a new plan has not been attached to the title, instead an old folio plan from a previously cancelled title has been resurrected and re-registered.
“Zombie” plan from the 1970s used to depict the Limitation on Depth
This “zombie” plan is indeed interesting as it has bought back to the register most of the original circa 1840 land grants on this section of the East Tamar. While the title is for “Lot 1 of this plan”, the plan itself does not have Lot 1 indicated. The fact that theLIST system is showing this overlapping title in the configuration of the plan 242678 indicates that this is the plan indicated by theLIST and that Lot 1 comprises the entire area of these original land grants.
theLIST is not of course a legal document, however the recording of the Limited in Depth title area on theLIST and not on the actual titles in the general area of the Pulp Mill development, indicates that theLIST may be more accurate than the Land Titles Office.
TheLIST map shows the folio number as a “Next Record” and this is how strata titles are usually recorded on that system.
Information panel from theLIST showing folio number 252678/1.
The area of the extended title shown in the map above also comprises the area of the original William Effingham Lawrence land grants on the East Tamar which according to J.P. Branagan’s The Historic Tamar Valley, “stretched from South Street, George Town, along the Tamar as far as East Arm, and inland to the Tippagory Hills”.
The other large title in this area is the balance left over from the subdivision of 154929/1 which is owned by Rio Tinto (Bell Bay). It is also possible that the large underlying title is actually comprised from the mistaken entry of the whole of Lot 1 on Plan 154929/1.
Balance of folio 154929/1.
This is possible because the original lot 1 on Plan 154929/1 originally constituted the entire area of the Depth Limitation title. You can see this if you look at the original plan to the title below.
The creation of a separate title to show the Depth Limitation seems bizarre because the restriction could be so easily shown by just recording it under Schedule 2 of all the affected land titles.
Schedule 2 is the area of the title where all dealings which are a burden on the title, for instance mortgages or easements, are entered. It would have been more cost effective to just enter the depth restriction under schedule 2 of all the affected titles rather than create special titles for the depth restriction. This is much like creating separate titles for each individual mortgage.
The folio of the register 252678/1 cannot be searched online and according to the Land Titles Office this is because it “does not have an address”. Titles in this category also often include titles to roads.
The title that belongs to the “Zombie” plan is actually 2861/54 and this was cancelled in 1995. It is possible that then the title was converted to computerized title 252678/1. However because the date of first issue is not provided on the bottom of the computerized title we do not know what happened to the Depth Limitation title after 1995.
Title to the Depth Restriction.
The title 2861/54 would appear to record the acquisition of mineral and other rights and savings as to water and springs by the Crown from various grantees. The height restriction is also noted.
There is no apparent reason for this particular old grant plan to be attached to the folio text for 252678/1. There is nothing on the plan that relates to any depth limitation.
The area concerned is not even defined by thick black line. There is reference to a height restriction but that is all. This height restriction appears to be in line with the HEC transmission lines. The Crown would have the means to produce a new clear plan that shows the area of the depth limitation within thick black lines. Mostly this just involves photocopying a diagram. Why did this not occur?
The other anomaly is that post 1976 there was no apparent need for these Depth Restriction titles.
The Crown Lands Act 1976 made this situation clear in regard to Depth Limitations. Section 54 says that”Crown Lands to be alienated as regards surface only”
1) All Crown Land which is sole or in respect of which a lease or licence (other than a lease or licence under the Mineral Resouces Development Act 1995) is issued, shall be deemed to have been sold or a lease or licence in respect thereof issued only as regards the surface, and to a depth of 15 metres below the surface unless the Minister, in any case, otherwise determines.
2) Subject to the Water Management Act 1999, nothing in subsection (1) or in any direction given by the Minister shall be construed to restrict he right of the owner, lessee, or licensee of the surface to sink wells for water and to use and enjoy any wells and springs which may at that time be found upon the land and which supply water for domestic, farming, agricultural, manufacturing, or irrigation purposes; and with respect to those wells and springs the owner lessee, or licensee shall have rights as though he held or occupied the land without any limitation as to depth.
3) …
4) This section has effect notwithstanding the Land Titles Act 1980.
The legislation does not however include general law or old system land in section 4. This could conceivably leave it open for the depth restriction to apply to general law land. General law land means land in Tasmania that has not been bought under the Land Titles Act and which is governed by the old common law system of Deeds.
However there does not seem to be any sign of a Limitation in Depth title affecting the proposed Pulp Mill project.
Engineering Company Pitt and Sherry said in their Spring 2011 Newsletter PS that groundworks at the Gunns Ltd site would:
involve substantial bulk excavation of clay and rock, embankment construction and the installation of stormwater ponds and sedimentation basins. Rock excavation will require the use of drilling and blasting processes.
The three dams for the project themselves are expected to contain 15 megalitres, 9 megalitres and 3 megalitres of water respectively and this would probably involve a fair amount of digging. However the stormwater ponds would most likely be shallow.
A court case is presently underway over the permit for the Stormwater Ponds and the proposed Dam. Presumably if there was any real reason for the existence of the depth limitation title as to “savings of wells and springs” then this would have come to the notice of the legal teams involved.
The question therefore remains as to why the depth limitation title is still in existence when it could easily have been removed when the Crown Lands Act came into existence and protected the Crown’s interest in 1976?
As folio 252678/1 is shown on theLIST is in the name of “DPIW”, the Minister for Department of Primary Industry Water Parks and Environment Bryan Greene has been asked to explain why the old folio plan has been resurrected and why the Limitation in Depth Title is still in existence when the Crown Lands Act 1976 protect the Crown’s interest regarding water and springs.
Download:
2861_54.pdf
