Environmental & Sustainability Law
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Government Compulsory Acquisition Of Land
GOVERNMENT COMPULSORY ACQUISITION OF LAND
South East Queensland (SEQ) is Australia's fastest growing region. From 2006 to 2031, its population is expected to grow from 2.8 million to 4.4 million people. The region covers 22,890 square kilometres, stretching 240 kilometres from Noosa in the north to the Queensland-New South Wales border in the south, and 160 kilometres west to Toowoomba.
As Queensland's population continues to grow, the need to provide services and community facilities such as schools and hospitals also grows. Such growth makes it necessary for the State to have the power to acquire land for public purposes in order to meet community expectations.
By 2031, the Department of Infrastructure and Planning has advised that an additional 754,000 dwellings will be required, as well as supporting infrastructure and services. This will impose significant social, economic and environmental pressures on the region.
Constructing authorities are established through separate pieces of legislation in accordance with the Acquisition of Land Act 1967. Several authorities (e.g. Ergon Energy and Energex) have the power to acquire land for public purposes related to their business.
The Department of natural Resources and Water is the constructing authority for various Queensland Government agencies. As a result, the Department of Natural Resources and Water has the power to acquire land for public purposes in order to meet community expectations.
The Department of Transport and Main Roads is also another major constructing authority in Queensland and has the power to acquire land for public purposes such as transport and operations.
At Ferguson Cannon Lawyers we are familiar with dealing with all of the various Queensland Government Departments that are constructing authorities. If you are the owner of land that is identified by a Queensland Government Department as being needed to be resumed for Government purposes it is very important that you are fully aware of your rights and are properly compensated by the government for the acquisition of part or all of your land.
LEGISLATIVE PROVISIONS
There are two key pieces of complicated legislation that provide for implementing and managing the acquisition (sometimes referred to as resumption) of land. The two pieces of legislation are:
- Acquisition of Land Act 1967 for the acquisition of freehold land
- Land Act 1994 (and various other Acts) for the acquisition of state leasehold land.
The purposes for which land can be acquired are identified in the Acquisition of Land Act 1967. At Ferguson Cannon Lawyers we are familiar with these purposes and can advise you accordingly if you land is being properly acquired in accordance with the legislation.
METHODS OF ACQUISITION
Land acquisition can occur either by agreement or through a compulsorily process.
The Government Acquires the Land Through Agreement
This process is imitated by the relevant Government Department, such as the Department of Natural Resources and Water. The Department will contact you as the relevant landholder(s) to express the State’s interest in acquiring own land for a public purpose.
At Ferguson Cannon Lawyers our experience has taught us that this is often the best way to obtain the maximum amount of compensation from the relevant Government Department. It is key however to fully understand your rights if you are to reach an agreement with the State as to the amount of compensation that is at an acceptable level.
If you manage to reach an agreement with the Government Department constructing authority regarding the acquisition and the level of payment, the purchase can take place as soon as the necessary transfer documents are completed. Once again it is key that the transfer documents are properly reviewed to ensure that the land being transferred to the government is exactly what you agreed too. This is especially important if the Government is own acquiring part of your property.
Alternatively, the acquisition could proceed by way of an agreement in accordance with Section 15 of the Acquisition of Land Act 1967. This leads to the publication of a gazette notice in the
Government Gazette, which authorises the transfer of the ownership of the subject land to the relevant constructing authority. If this type of agreement is reached it is essential that a legal professional reviews the process to ensure that it complies with the Acquisition of Land Act 1967, thus ensuring that you are the land owner obtain the maximum amount of compensation form the government.
The Government Acquires the Land Compulsorily
If an agreement between you as the landholder and the Government Department constructing authority cannot be reached, an acquisition may occur compulsorily. At Ferguson Cannon Lawyers we have extensive experience in dealing with compulsory acquisitions and ensure that if this is to occur that the Government Department acquiring your land does so in strict compliance with the relevant legislation and you obtain maximum compensation.
To begin this process a ‘Notice of Intention to Resume’ will be forwarded to you as the landholder (and any mortgagee etc. if applicable). If you receive such a notice you should seek legal advice immediately.
Under the relevant legislation a Notice of Intention to Resume should contain certain information including:
- the location and area of the land to be acquired;
- a date (not less than 30 days later) by which a written objection may be lodged by you as the landholder—this statement must set out the grounds on which the objection is being made. It is very important that if you want t to object to the acquisition of your land that it is done so I the correct format and complies with the legislation. At Ferguson Cannon Lawyers we have extensive experience in preparing such documents;
- a time and place where you as the landholder can meet with the constructing authority to discuss the grounds of their objection. It is h ighly recommended that you attend such a meeting with proper legal representation. This will ensure that you fully understand our rights and do not agree to something that you later regret.
Following the hearing date, and after considering all points of the objection (if applicable), a final decision will be made by the Government Department constructing authority. Depending on the circumstances, the decision could be to discontinue, amend or proceed without change.
There is no right of appeal against the decision when it is published in a gazette notice, as the final decision is made by the Governor in Council. A copy of the gazette notice will be forwarded to all relevant parties. At the date of the gazette notice, ownership of your land will transfer to the Government Department constructing authority. Consequently it is very important that you do launch into action against the Government as soon as possible and contact our legal representative.
COMPENSATION
From the date your land is acquired (i.e. the date of publication of the gazette notice), any person with an estate or interest in the land (e.g. title, easement etc.) may lodge a compensation claim with the Government Department constructing authority that acquired your land.
It is very important to remember that if you do not make a claim for compensation, no compensation will be paid.
It is essential that any compensation application complies with the relevant legislation so that you receive the maximum amount of compensation from the Government. At Ferguson Cannon Lawyers we have extensive experience in making compensation applications and achieving large compensation payouts for land owners.
To properly complete a compensation application, Ferguson cannon Lawyers has built relationship with numerous Governments recognised registered Valuers. Ferguson Cannon Lawyers will organise for such a Valuer to assess the amount of compensation payable to you for the acquisition of your land at the date of the acquisition.
Our aim at Ferguson Cannon Lawyers when making a compensation application is to ensure that you as the land owner ultimately are not financially disadvantaged in any way.
The amount of compensation that you can seek from the Queensland Government will be based on:
- the market value of the land and any fixed improvements (note: furniture and chattels do not form part of the acquisition)
- any severance of the land from other land owned by the claimant
- any injurious affection caused to other land held by the claimant.
Once a compensation application is lodged the Government Department constructing authority will then negotiate with you regarding the final amount of compensation to be paid for the acquisition. During this negotiation it is key to be properly represented legally to ensure that the maximum amount of compensation is achieved or you and to ensure that you do not agree to something that you do not fully understand.
At Ferguson Cannon Lawyers, we understand and appreciate that the acquisition of your land and often our home can be a stressful process. You consequently deserve to be properly compensated.
Additionally in most cases our professional fees are recoverable from the Government Department constructing authority that acquires your land.
For further queries regarding your compulsory acquisition enquiries, please contact Byron Cannon, Director byron@fclawyers.com.au or Samuel Barber, Solicitor sam@fclawyers.com.au or (07) 5443 6600.
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