23 Feb 2009

Acquisition of Land Act 1967 (Qld) to be substantially amended

by Barry Dunphy, Pat Dwyer, Jamie Doran, Majella Pollard

The Acquisition of Land Act 1967 (ALA) is proposed to be substantially amended for the first time in over 40 years. The Queensland Government has recognised the need to modernise the Act and to clarify the relevant land acquisition processes.

The Acquisition of Land and Other Legislation Amendment Bill 2008 was passed by Parliament on 12 February 2009. The Bill will commence on royal assent, which is expected to occur in the near future.

The Bill makes some substantive amendments to the ALA, inserts headings into the Schedule and makes a number of other technical amendments. The Bill also makes some technical amendments to the Land Act 1994 and makes consequential amendments to the Integrated Planning Act 1997 and the South Bank Corporation Act 1989. This Alert deals specifically with the amendments to the ALA.

After the Bill commences, new notices of intention to resume must contain additional information or there will be a risk of having to start the compulsory acquisition process again.

Land owners will now have more options to request the balance of their land to be taken under section 13(1) of the ALA. Owners of investment properties will be able to claim compensation for the costs of purchasing a replacement property, for example legal fees and stamp duty. This amendment will only apply to takings of land that occur after the commencement of the Bill.

Main amendments to the ALA

Notice of intention to resume

  • The Bill confirms the practice that where common property is taken only the body corporate must be served with a notice of intention to resume (NIR) (see new section 7(2A) and (2B)).
  • The Bill inserts new requirements for an NIR to a body corporate if land to be taken is common property. In addition an NIR must include details of the 3 year period to claim compensation (including appeal rights) and information about agreements and arrangements (under section 20(2A)) entered into after an NIR is served (see new section 7(3)(ea), (eb), (g) and (h)).
  • The Bill confirms that there is no requirement for a further objection period when the NIR is amended to take less land with the consent of the owner following an objection process (see new section 8(3)).
  • The Bill inserts a new general power into the Act allowing a constructing authority to amend a NIR. Where an NIR is amended under this general provision the objection period will start again (see new section 7(4AA) and (4AB)).
  • The Bill clarifies an existing practice whereby a gazette resumption notice can be amended to accurately reflect the land taken, if the land was taken on an about resumption plan. The amendment to the gazette resumption notice is made by the relevant Minister (see new section 11(1A) and (1B)).

The meaning of "an interest" in land

  • The Bill inserts an new section 12(5C) which provides that a right to claim compensation for the acquisition of an interest in land does not extend to an interest under a services contract for the land, for example a cleaning contract.
  • The Bill aims to narrow what may constitute an interest in land following the decision of Sorrento Medical Service Pty Ltd v Chief Executive, Department of Main Roads [2007] 2 Qd R 373.

Compensation

  • The Bill inserts a three year limitation period to make a claim for compensation. This time limit may be extended if the constructing authority is satisfied that it is reasonable. If the constructing authority rejects the claim outside the three year limitation period the claimant may apply to the Land Court which will then decide whether it is reasonable to accept the claim (see new section 19(3)-(6)).
  • The Bill introduces a separate head of claim for disturbance items. The Bill sets out categories of disturbance based on current case law. The categories include legal costs, valuation fees, stamp duty, other financial costs reasonably incurred, removal and storage costs, connection of utilities, loss of profits from interruption to business where it is a natural and direct consequence of the taking of the land and other economic losses that are a direct and natural consequence of the taking of the land (see new section 20(5)).
  • If land is purchased to replace an investment property, the legal and financial costs will now be recoverable (see new section 18(3A)). This is a major departure from the case law in Queensland and brings us into line with other jurisdictions.
  • Constructing authorities will be able to transfer land it owns to a claimant in satisfaction or part satisfaction of a claim for compensation (see new section 21(1A)).
  • The Land Court will have jurisdiction to recover overpayments of compensation where an advance is paid to a claimant which is later determined to be in excess of the compensation to be paid (see new section 26A).
  • The Bill provides that where common property under the Building Units and Group Titles Act 1980 or Body Corporate and Community Management Act 1997 is taken and there is an impact on a lot, the owner of the lot may make a separate claim for compensation for the damage suffered (see new section 18(13)).

Acquisition of an Easement

  • The Bill clarifies that an easement taken under the ALA does not extinguish any existing interests in the land (see new section 6(3)).

Acquisition of Additional Land

  • Section 13 of the ALA will be amended to remove the size and shape requirements before an owner can request the constructing authority to take balance land. The additional land may be taken at the time of the initial acquisition or at a later time (see new section 13(1) and (1A)).

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.