Revocation, recategorisation and road adjustment policy

1. Where a boundary error occurred at the time of gazettal, the NSW National Parks and Wildlife Service (NPWS) may seek to remove the parcel of land from the park by revocation. Boundary errors can be caused by a range of factors, including a lack of formal surveying, mapping inaccuracies or ambiguities, and the inadvertent inclusion of unknown development items or activities.
2. Boundary encroachments, which occur after gazettal, can arise from activities or developments on-park that occurred without NPWS approval and are generally incompatible with the purpose for which the land was reserved. An example might be the encroachment of a neighbouring residential building into a park. Where a boundary encroachment is discovered, NPWS will consider a range of options to rectify or ameliorate the encroachment before revocation is considered (see paragraphs 22–26 of this policy).

3. Where a new non-permissible activity or development is proposed by another party and requires the use of NPWS-managed land, either the park boundary can be re-defined to exclude the proposed development, or the development cannot proceed. For example, proposals may be made for major Government infrastructure such as a new highway or major upgrade of an existing road to be built on NPWS-managed land where no suitable alternative sites are available.

4. Proposals to change a reserve's category will be assessed on a case-by-case basis (see paragraphs 27–30 of this policy). For example:
   • Changing a national park to a nature reserve may be appropriate where there are limited opportunities for recreational use due to constrained access. Alternatively, the park may have unique biodiversity values worthy of protection in a nature reserve, but which were only identified through scientific research some years after the national park was originally established.
   • Changing a state conservation area to a national park or nature reserve under section 47MA of the NPW Act may be appropriate if there are no current or potential mineral interests. This also requires concurrence of the Minister administering the Mining Act 1992.

5. The use of section 188C of the NPW Act may be considered in the following circumstances:
   • To allow the formed path of a road deviating from its road reserve to align with the park boundary. This may be where the deviation occurred either before the park was reserved or where it arose after reservation as a result of construction errors (e.g. subsequent surveys demonstrate minor discrepancies between the constructed road boundary and the road reserve).
   • To provide an appropriate setback for existing supporting infrastructure which lies outside the road reserve corridor and which directly services or supports the primary function of the road. This includes infrastructure that has a primary role in supporting the structural integrity and safe use of the road. For example:
     • drainage (e.g. catch drains, mitre drains) and erosion and sediment control structures
     • signposts
     • traffic control devices
     • utilities infrastructure that is primarily for road-related purposes (such as cabling for electronic road signage or emergency telephones)
     • impact barriers
     • gabions and retaining walls
     • cut and fill embankments
     • rock bolts
     • levee banks
     • bus turn around areas
     • pull off bays
     • emergency stopping ramps
     • rest areas
     • to adjust boundaries to accommodate emergency works undertaken during an emergency. Boundary adjustments for emergency works will only be authorised if they are for an appropriate setback that services or supports the primary function of the road.
6. Appropriate supporting infrastructure does not include roads work depots or material storage areas.
7. Section 188C cannot be used to adjust the park boundary to allow for:
   • an increase in the width of existing road that is otherwise within the surveyed boundaries (e.g. to add a new lane)
   • alteration of the physical location of an existing built road (e.g. to realign an existing public road that is already aligned with its legal boundaries)
   • construction of a new road
   • the provision of new supporting infrastructure
   • the correction of significant errors resulting from road construction activities after reservation a boundary adjustment of any land acquired under Part 11 of the NPW Act if it would contravene any condition of a gift or agreement by or under which the land had been acquired (refer to section 188C of the NPW Act).
8. NPWS will assess, case-by-case, the appropriateness of using section 188C of the NPW Act where there is a section of a formed road with no corresponding paper road reserve. NPWS will seek legal advice, if required, to clarify the appropriateness of using and applying section 188C of the NPW Act for that purpose.
9. All road boundary adjustments must undergo an assessment of significance (see paragraphs 22-26 of this policy). If the assessment concludes there will be a significant reduction in the size or value of land reserved under the NPW Act, the proposal can only proceed as a revocation.
10. Where there is a considerable discrepancy between the geographical location of a paper road reserve and the location of an actual formed road, boundary adjustments can occur so long as the paper road and formed road are clearly intended to serve the same purpose.
11. If boundary adjustments will affect legal access to property held by other parties, boundaries must be adjusted in such a way as to maintain legal access, in consultation with the affected landowners.
12. If additional boundary adjustments are proposed for the same public road within the same park, the cumulative impact of all proposals must be considered in the assessment of significance.

13. Following the recategorisation of a park, an audit of the existing plan of management or statement of management intent must be undertaken to assess whether it aligns with the management principles for the new reserve category. If deemed necessary, a new plan of management or statement of management intent should be prepared at the earliest practical opportunity.
14. NPWS will endeavour to identify boundary errors, boundary encroachments and proposed section 188C boundary adjustments (where known) in the relevant park's plan of management as the plan or statement of management intent is prepared or amended.

15. Compensation for park revocations:
    • will generally not be sought for boundary errors occurring at the time of gazettal. This is on the basis that the boundary error arose, not through deliberate, improper or malicious action, but through a circumstance or technicality where no fault is ascribed
    • may be sought for encroachments but this will be determined on a case-by-case basis after consideration of factors relevant to the cause of the encroachment, the natural and cultural heritage values of the site and the circumstances of the case (see also paragraph 19 of this policy)
    • will normally be required for revocations that arise as a result of non-permissible activities or development proposals and must provide an overall public good outcome (see paragraphs 18 and 19 of this policy for further detail).
16. Where NPWS seeks compensation for revocations, it will generally be in the form of the transfer of land to the Minister for reservation under the NPW Act (and preferably as an addition to the park that is subject to the revocation). In these situations, the land that is revoked will not be transferred to the recipient party until such time as the compensatory land has been transferred to the Minister (it may be revoked and held under Part 11 of the NPW Act until this occurs).
17. Compensation for park revocations may not be appropriate where:
    • NPWS-managed land is to be disposed on the open market once revoked
    • an agreement between the Government, or the Minister, and the owner of the encroaching development or development proponent may have already been made.
18. When negotiating compensation, NPWS will be guided by the following considerations:
    • the proposed revocation and associated compensation must result in an overall public good outcome having regard to all of the conservation, cultural heritage and other values of the land being revoked and the values of any land provided as compensation
    • compensatory land should preferably be of greater size than the area of land being revoked, and must at least be of equal size
    • it is desirable to match the area, type and quality of habitat, and cultural heritage values on land being revoked with the area of land proposed as compensation where possible. Exceptions to this may include:
      • compensation that includes a higher conservation priority habitat type (e.g. that is poorly reserved) where the habitat to be impacted is commonly represented within the relevant park
      • compensation lands that have unique and particularly significant conservation values
      • it is desirable that land to be transferred as compensation is close to the area being revoked and preferably adjacent to the affected reserve.
19. For all revocations requiring compensation, a written agreement (such as an exchange of letters) will be made between the Minister and the party to whom the Minister will transfer the revoked land prior to the introduction of revocation legislation. This agreement shall:
    • identify the area to be revoked
    • identify the proposed compensatory lands, or such lands that are under discussion
    • confirm that the combined effect of the revocation and compensation will result in an overall public good outcome
    • confirm that the final transfer of the revoked lands will only occur once the compensatory lands are provided to the Minister.
20. The Minister must be satisfied that proposed or likely compensation is of equal or greater conservation value both in terms of natural and cultural heritage than the land that is proposed to be revoked.
21. Compensation may be sought for road boundary adjustments, but this will be determined on a case-by-case basis after consideration relevant to the size of the affected area, the natural and cultural heritage values of the site and the circumstances of the case.

22. NPWS will brief the NPWS Deputy Secretary and the Minister about any potential revocation proposals as they become known.
23. NPWS may only proceed to examine the potential revocation of the relevant area and discuss with relevant parties after written in-principle approval of the Minister.
24. In the case of non-permissible activity or development proposals, the proponent is to provide the NPWS Deputy Secretary and the Minister with details regarding the proposal, including any land proposed as compensation. The proponent is required to demonstrate to the NPWS Deputy Secretary, and ultimately the Minister, that the revocation is essential and that the combined effect of the revocation and compensation will result in an overall public good outcome. Consideration must be given to all the conservation, cultural heritage and other values of the relevant lands.
25. NPWS will consider a number of factors when assessing the most appropriate options with respect to any revocation proposal, and in preparing advice for the NPWS Deputy Secretary and Minister. These include (but are not limited to):
    • viable and practical alternatives to revocation. For boundary encroachments that may include:
      • removal or relocation of the encroaching development
      • demolition of the encroaching development
      • adaptive re-use of the encroaching development
      • issuing a lease, licence or easement for the encroaching development where the development is consistent with the objects of the reserve and plan of management (i.e. where a nexus between the development and the reserve can be established)
      • positive or negative impacts (if any) on:
        • integrity of the park and its boundaries (including connectivity and manageability)
        • the natural and cultural values of the park
        • current and future visitors to the park (including access and amenity)
        • social, economic and financial costs and benefits of any action with respect to the activity or development (including costs of removal)
        • legal advice, including whether penalties or legal action should be pursued
        • any formal advice or resolutions prepared by the National Parks and Wildlife Advisory Council and the relevant regional advisory committee (see paragraphs 36-37 of this policy)
        • the adequacy of any proposed compensation for the revocation (see paragraph 19 of this policy).
    Note: Not all of the above information will be available to NPWS when the initial briefing is provided, and the request is made for Ministerial in-principle approval to proceed with the consideration of a revocation proposal. However, any final recommendation to the Minister on a revocation proposal must address these matters, where they are relevant to the particular proposal at hand.
26. A final decision on whether to proceed with a revocation proposal may only be made by the Minister. Once the decision to proceed has been made, and prior to seeking government and parliamentary approval, written agreement regarding any compensation requirements will be made between the Minister and the party to whom the Minister will transfer the revoked land (see paragraph 20 of this policy).

27. NPWS will brief the NPWS Deputy Secretary and the Minister about any potential recategorisation proposals as they arise.
28. NPWS may only proceed to examine the potential recategorisation of the relevant area with written in-principle approval of the Minister.
29. The following matters will be considered in the assessment of recategorisation proposals:
    • natural and cultural heritage values of the reserve
    • current and potential levels of visitor use
    • current and potential level of illegal activities
    • public accessibility
    • recent and current annual land purchase programs
    • surrounding lands that may be identified as future reserve additions or new reserves
    • any formal advice or resolutions prepared by the National Parks and Wildlife Advisory Council and the relevant regional advisory committee (see paragraph 36 of this policy).
30. A final decision on whether to proceed with a recategorisation proposal and to seek government and parliamentary approval may only be made by the Minister. Proposals to recategorise an SCA using the provisions of section 47MA of the NPW Act do not require Parliamentary approval but require the concurrence of the Minister administering the Mining Act 1992.

31. The proponent must prepare an assessment of significance to examine the effect of the adjustment on the size and value of the park. The assessment must address the following considerations:
    • area and proportion of land to be removed from the park (and any areas to be included in the park)
    • impacts on natural and cultural heritage of the park, including:
      • flora and fauna, including threatened species, populations or communities
      • Aboriginal heritage
      • historic heritage (including any historic infrastructure associated with the road corridor)
      • any related impacts on the aesthetic, recreational, scientific or other environmental quality or value of the area
      • where a setback is proposed to accommodate existing supporting infrastructure, or emergency works have been undertaken associated with the road (see paragraph 5 of this policy):
    • clear evidence that the extent of the setback proposed, and the infrastructure contained within the setback, or any emergency works that have been undertaken, are consistent with relevant technical road standards
    • documentation and mapping of the existing supporting infrastructure that is to be included in the setback area, or any emergency works that have been completed.
32. After considering the assessment of significance, NPWS will prepare a briefing to the NPWS Deputy Secretary and Minister on the proposed road boundary adjustment.
33. Road boundary adjustments must be approved by the NPWS Deputy Secretary, together with the approval of the Minister and any of the relevant parties identified in section 188C(4) of the NPW Act.
34. Once approved, the road boundary adjustment shall be given effect by a notice published in the Government Gazette by the NPWS Deputy Secretary, which is to include certification from the NPWS Deputy Secretary that the adjustment will not result in any significant reduction in the size or value of land reserved under the NPW Act.

35. Following in-principle Ministerial approval to examine potential revocation or recategorisation proposals, NPWS must seek the advice of the National Parks and Wildlife Advisory Council and the relevant regional advisory committee.
36. For road boundary adjustments, the relevant regional advisory committee should be consulted regarding the proposal.
37. If a proposed road boundary adjustment will affect any land with utilities interests such as easements or infrastructure, it is the responsibility of the proponent of the boundary adjustment to consult with and seek the agreement of the utilities authority.
38. If the boundary adjustment affects the boundaries adjoining a public road maintained by a local council, the local council should be consulted and their agreement for the boundary adjustment sought.
    Note 1: Any potential offset lands to be added to the reserve system as a result of offset negotiations and any changes of SCAs to a higher reserve category must undergo the reserve referral process. NPWS's Reserve Establishment Unit oversees the reserve referral process. The region is to provide information on offset lands and on lands proposed for changing a reserve's category to the NPWS Reserve Establishment Unit.
    Note 2: Consideration must be given to any potential impacts of revocations or changes to a reserve's category on Aboriginal joint management initiatives. Consult Legal Services and NPWS's Aboriginal Heritage and Joint Management Team.

39. Where it is proposed to revoke any part of a park that is listed under an International Convention, such as World Heritage or Ramsar, or on the National Heritage List, NPWS will consult the relevant Commonwealth department regarding the proposal.

40. The appropriate authority in which the land is to be vested as a result of a road boundary adjustment must be advised that the adjustment of boundaries by a section 188C notice will not affect native title rights and interests.
41. For proposed revocations, advice on the impact on native title rights and interests by the revocation of land and subsequent vesting and transfer of revoked land should be sought from Legal Services.

42. It is the proponent's responsibility to meet survey costs associated with revocations and road boundary adjustments, although a cost-sharing agreement may be made with NPWS where appropriate.
43. For revocations, plans must be prepared for both the land to be revoked from the park and the land to be added (if applicable).
44. A plan in a registrable form prepared or certified by a registered surveyor is required to vest lands in the appropriate authority following a revocation. A miscellaneous plan may suffice for lands to be revoked from the park and held under Part 11 of the NPW Act prior to vesting with the appropriate authority, although a plan in a registrable form prepared or certified by a registered surveyor is preferred.
45. A plan in a registrable form prepared by a registered surveyor may be required for some section 188C boundary adjustments proposed by external proponents. Full survey of the proposed adjustment and the production of a plan in registrable form is preferred.
46. For section 188C boundary adjustments in the event survey costs are considered prohibitive, a miscellaneous plan will suffice, however, staff must communicate to the external proponent that NSW Land Registry Services will not accept it for registration and the cadastral layers will not be updated, and nor can a certificate of title be issued.
47. For NPWS proposed section 188C boundary adjustments, a miscellaneous plan will suffice.
48. For section 188C boundary adjustments a full survey must be undertaken where the likelihood of major works occurring in the future is high and accurate boundary definition would be required in any event at that future time for those works to proceed. Major works would include additional lanes, re-alignment, new intersections and reformation of embankments.
49. For encroachments occurring after park establishment, if after receiving legal advice, revocation is to be pursued, the costs should be borne by the encroaching party.

50. Information regarding the lands removed from or added to the reserve system, whether by revocation or road boundary adjustment, will be recorded and provided as part of existing regular reports to the Department of Climate Change, Energy, the Environment and Water Asset Accountant. In NPWS this task is undertaken by the Reserve Establishment Unit.
51. The Department of Climate Change, Energy, the Environment and Water Asset Accountant, in consultation with other authorities that are the recipient of lands transferred from the reserve system or that have transferred lands to NPWS, will then determine the agreed land value in line with the most recent valuations and arrange transfer of the agreed value, via 'administrative restructure', with the other authorities.

Policy adopted 2002
Policy last updated September 2021

Scope and application

This policy applies to all lands acquired or reserved under the National Parks and Wildlife Act 1974 (NPW Act) except for lands reserved under Part 4A of the Act (unless the Board of Management for those lands has adopted the policy). However, NPWS staff can use the policy as guidance in their dealings with Boards of Management.

Objectives

This policy aims to:

• ensure that proposals to revoke land, change a reserve category, or adjust road boundaries in a reserve are consistent with legislation and policy
• ensure that the combined effect of a revocation and any compensation results in a good outcome having regard to all the conservation, cultural heritage and other values of the relevant protected lands
• guide staff in how to apply section 188C of the NPW Act
• ensure that cumulative use of section 188C does not significantly erode the area and value of land reserved under the NPW Act
• achieve the best conservation outcome.

Definitions

Appropriate authority means the authority in which lands will be vested as identified in the relevant legislation for a particular revocation.

Emergency works (as defined in State Environmental Planning Policy (2007) – Infrastructure) means works for the purpose of maintaining or restoring infrastructure facilities or equipment in order to ensure public safety or to protect buildings or the environment due to:

• a sudden natural event, including a storm, flood, tree fall, bushfire, land slip or coastal inundation
• accident, equipment failure or structural collapse
• damage caused by vandalism or arson

provided the works involve no greater disturbance to soil or vegetation than necessary and are carried out in accordance with all applicable requirements of the Blue Book (the Managing Urban Stormwater publication series).

Formed path of the road means carriageways, travellers' lanes, shoulders, verges, roundabouts, median strips and traffic islands.

NPW Act means the National Parks and Wildlife Act 1974.

Park means a reserve gazetted under the NSW National Parks and Wildlife Act 1974, including a national park, nature reserve, historic site, Aboriginal area, state conservation area, karst conservation reserve, regional park or any land acquired by the Minister under Part 11 of the Act.

Plan of management means a plan of management in relation to land reserved under the National Parks and Wildlife Act 1974 that is prepared under section 72 of the Act.

Public road means:

• any road that is opened or dedicated as a public road, whether under the Roads Act 1993 or any other Act or law, and
• any road that is declared to be a public road for the purposes of the Roads Act 1993.

Roads authority means a person or body that is, by or under the Roads Act 1993, declared to be a roads authority and, in relation to a particular public road, means the roads authority for that road.

Statement of management intent means a document which outlines management directions for a park prior to a plan of management being adopted.