Resumption of Land
The constitution (Cth) empowers the Federal Parliament to make laws to acquire property on just terms from any State or person for any purpose and matters incidental to the execution of any power vested by the Constitution in the Parliament. This law making power to acquire property extends to any State or individual property.
s93 of the Land Acquisition Act 1989 (Cth) provides that the Federal Court or the High Court may determine such compensation or make such order as, in its opinion, is necessary to ensure that the acquisition is on just term, for example such amount as will justly compensate the direct loss of the affected person.
Notice of Intention to Acquire
A Notice of Intention to Acquire is a notice given by the authority serving to each person whom has an interest in land to notify each of them that the authority is considering to acquire an interest in land for public purpose, such as widening road, building of public service facility infrastructure, or any other public works etc
When a person receives a Notice, he/she may seek information from the Authority about the acquisition and the proposed use of the land, or the proposed restriction on the use of the land as the case may be.
Under the Commonwealth Act, a person affected by the proposed acquisition, may make an application in writing setting out the reasons to make objection to such acquisition within 28 days after the day a copy of the Notice was received. In some States, the time limit is 30 days. Examples of reasons would be the proposed used of the land after acquisition would be
- destroy or affect a site of architectural, historical or scientific interest
- seriously impair an area of scenic beauty
- adversely affect the conservation of flora and fauna that should be conserved
- adversely prejudice any other public interest
After receiving the application, the authority will have to take that into consideration, if it is of opinion that the resumption should be discontinued or that the Notice to resume should be amended, the authority may discontinue the resumption or amend the Notice.
Some State’s legislation restricts objection could be made only on the basis of environmental considerations or native title rights.
Challenge a Presumption
The Act allows a person affected by the acquisition to challenge the Presumption through an review process in the Administrative Appeals Tribunals.
What happen if no improvement on the land after acquisition
Under the Act, at the end of 7 years after the acquisition of the interest by the authority, no substantial improvements has made to the land, the authority determines that the interest in land is no longer requires, it may dispose the interest in the land. The general principle would be that the authority may provide an first offer to the former owner at the market value of the interest at the time the offer is made.
If you wish to understand further, you may arrange a consultation with us.
Lapse of Notice of Acquisition
Under the Commonwealth legislation, if after 3 months the Notice is given, there is no objection to such acquisition and no interest in land is acquired, the Notice is lapsed and ceased to have effect.
Different State legislation provides different time frame, for example in NSW, any proposed Notice is taken to be withdrawn after it is given if the interest is not acquired by the authority.
In the absence of a statutory provision regarding the lapse period, a court has power to declare that a Notice is lapsed.
Acquisition by Agreement
Acquisition of an interest in land for a public purpose may be by agreement.
Entering onto Land
Upon giving written notice stating valid reasons to exercise power to enter on, an authorised person may enter on the land or adjoining land, and may make surveys, take levels, dig or bore into the land, examine the soil and do any other thing reasonably necessary to evaluate the suitability of the land for public purpose and any related issues. While entering upon the land, the authority is required to cause as little damage as possible to the land and anything on or growing on the land as well as cause as little disturbance to the owner and the occupiers as possible.
Under s55 of the Commonwealth Act, the amount of compensation is such amount as having regard to all relevant matters including the market value of the interest on the day of the acquisition
s56 of the Act provides that the market value of an interest in land is the amount that would have been paid for if it had been sold at that time by a willing but not anxious seller to a willing but no anxious buyer. An example is to use the comparative sales value method for a market value of the resumed property or income investment method,etc Other relevant matters would be taken into account are the proof of special value, severance, actual financial loos/disturbance, the highest and best use of the land, reinstatement principle, etc. The Commonwealth Act does not provide payment of a solatium. The meaning of solatium is a compensation to a person for non-financial disadvantage resulting from relocation of his/her principal place of residence because of the acquisition.
Disclaimer: The information on this website are the general information provided by the author on the published date and are not legal advice. Viewer should not rely on these information and must seek independent legal advice.