Landholder Negotiation Scheme Regulation

By legislating the landholder negotiation scheme (LNS), this ensures the NSW Government must follow a negotiation process with landholders affected by proposed future changes to environmental water releases that is transparent, equitable, fair and consistent.

The LNS Regulation provides a process for good-faith negotiations and ensures the interests of landholders are appropriately considered when enduring changes to environmental water release arrangements are made.

The LNS Regulation provides for up to 12 months to reach a voluntary agreement.  An agreement can be reached before the maximum negotiation period.

Before commencing proposed environmental releases with the potential for overbank flows, every reasonable effort would be made to contact and negotiate with all affected landholders.

Where, after all reasonable efforts have been made, a landholder is unable to be located and given a notice under the LNS Regulation, it may be determined the negotiation is unable to occur and the LNS Regulation process may be ended.

This does not preclude the possibility the landholder may be located in the future and invited to participate in negotiations.

Where a landholder formally declines an invitation to negotiate, or if a written response is not received within the timeframe set out in the notice, the Ministerial Corporation may decide to end the negotiation early.

Clause 247F of the draft LNS Regulation specifies negotiations end when:

• there is an agreement reached between the Ministerial Corporation and the affected landholder; or
• the period of negotiation (12 months) expires; or
• the Ministerial Corporation is satisfied that negotiation is unlikely to succeed or is unproductive.

The negotiation timeframe may be extended by agreement between the Ministerial Corporation and the landholder.

No. Negotiations and agreements are specific to each individual landholding.

The LNS Regulation is an additional voluntary process and timeframe that NSW Government will adopt to negotiate agreements with landholders as part of environmental water programs that seek to deliver enduring changes to delivery of environmental water.

By creating the LNS Regulation, the NSW Government is ensuring the interests of affected landholders are appropriately considered in program delivery. The LNS Regulation will provide landholders with sufficient time to understand the nature of the proposed agreements and what it means for their individual circumstances to make informed decisions.

The Just Terms Act is existing legislation providing an established process for government acquisition for public interest projects. It establishes a minimum period for the government and landholders to try to reach agreement and outlines the factors to be considered to determine compensation on just terms.  The Just Terms Act existing processes remain unchanged by the LNS Regulation.

Where an agreement is not reached with a landholder under the LNS Regulation (or a landholder elects not to negotiate), the Minister for Water may consider whether to approve compulsory acquisition of an interest in land (e.g. flow easement), by the Ministerial Corporation as a last resort.

This would only occur on a case-by-case basis with the approval of the Minister, where acquisition of a flow easement is considered essential to release future environmental flows. The types of factors the Minister that would be considered include:

• proportion, location, land use and impact of predicted additional inundation of the property
• scale of impact of inundation on the ongoing viability of existing land-use/s on the property.

Compulsory acquisition of a flow easement will not occur in all cases where agreements are not reached.

No. The Ministerial Corporation must determine compensation for the acquisition of an interest in land (i.e. flow easement) consistent with s55 of the Just Terms Act. According to the Act, determining the amount of compensation must be informed by:

• the market value of the land on the date of its acquisition
• any special value of the land to the person on the date of acquisition
• any loss attributable to severance
• any loss attributable to disturbance
• the disadvantage resulting from relocation
• any increase or decrease in the value of any other land of the person at the date of acquisition which adjoins or is severed from the acquired land by reason of the carrying out of, or the proposal to carry out, the public purpose for which the interest in land was acquired.

Yes. Consistent with s59 of the Just Terms Act, where negotiations result in an agreement to acquire a flow easement, compensation will be available for:

• legal costs reasonably incurred
• valuation fees of a registered valuer reasonably incurred
• if the negotiation relates to the need to reconfigure or adjust the actual land uses, the financial costs reasonably incurred by the landholder directly in respect of the negotiation of those matters.
• in recognition of the need for mental health support a Property Acquisition Support Line will be available to landholders delivered by a team of qualified psychologists and social workers.

Yes. Under the draft LNS Regulation, WaterNSW would be required to notify affected landholders prior to an environmental water release through a flow notification scheme.

Negotiations under the LNS Regulation are likely to commence in 2025 for the delivery of the Reconnecting River Country Program in the Murrumbidgee and the Gwydir Reconnecting Watercourse Country Program.