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02 Feb 2012

Western Australian Supreme Court finds compulsory acquisition notices invalid

by Avinesh Chand, Majella Pollard

Agencies taking land under compulsory acquisition legislation should ensure that they include a detailed description of the land they intend to resume in order to ensure that persons who have or may have an interest in the land are able to engage in the objection process fully informed.

A recent decision of the Western Australian Supreme Court shows that it is critical for agencies to ensure that they properly comply with all procedural aspects of land acquisition legislation when seeking to compulsorily acquire land.

In McKenzie v Minister for Lands [2011] WASC 335 (6 December 2011), Chief Justice Martin found that three notices of intention to take land (notices) did not contain information which would enable the boundaries of the land intended to be acquired to be identified. As a consequence, the Court found that the notices did not comply with the Land Acquisition Act 1977 (WA) and were invalid.

Background

Significant reserves of natural gas were discovered in the Browse Basin, off the coast of the Kimberly region of WA. In December 2008 the WA Government announced that the area in the vicinity of James Price Point would be the preferred location to establish processing facilities for harvesting liquefying natural gas from the Browse Basin.

All of the land in the vicinity of James Price Point is unalienated Crown land. The Goolarabooloo and Jabirr Jabirr people have claimed native title rights over the land as part of a claim covering a larger area.

On September 2010, the Minister for Lands issued the notices to the Kimberley Land Council, which represented the Goolarabooloo and Jabirr Jabirr people. The notices related to land around James Price Point to be used for the construction of a gas processing plant, workers' accommodation, a port, roads, pipelines and for light industrial purposes.

The notices

At the date the notices were issued, the State was not able to identify the exact land required because of insufficient heritage surveys and discussions between various parties. The notices identified the location of a larger area of land from which the interests in the smaller area would be acquired, but without identifying the location of the smaller area beyond the fact that it would be somewhere within the larger area.

Some members of the Goolarabooloo/Jabirr Jabirr native claim group objected to the notices on the ground that they were invalid because they did not describe the land required and in particular, did not identify the location and boundaries of the land which was proposed to be acquired. The Minister considered the objections and decided on 15 April 2011 that the notices did not need to be amended.

Validity of the notices

Section 171(1)(a) of the Land Acquisition Act provides that a notice of intention "must include a description of the land required".

The Court found that there were three reasons why the requirement for "a description of the land required" is a condition of the validity of a notice of intention to take issued pursuant to the Land Acquisition Act:

  • the use of the imperative expression "must" in section 171(a);
  • the fact that section 171(2) provides that a notice of intention to take issued in good faith is not invalidated by reason only that it contains an error or omission in the information required by section 171(1)(d), (e) or (f) but makes no reference to the requirement in section 171(1)(a); and
  • the significant consequences which flow from the issue of a notice of intention.

The Court then found that a consideration of the purpose and object of the legislative requirement in the Land Acquisition Act that a notice include a description of the land required compels the conclusion that the notice contain sufficient information to inform any reader of the boundaries of the land to be acquired.

The Court set out a number of provisions in the Land Acquisition Act which it considered required the notice to describe the boundaries of the land to be acquired, including the following:

  • section 170 of the Land Acquisition Act requires the Minister to serve a notice of intention to resume land on the proprietors and occupiers of any land affected by the notice. The precise content of that obligation can only be ascertained and resolved if the boundaries of the land are known;
  • section 175 of the Land Acquisition Act provides rights of objection to, amongst others, the proprietors and occupiers of the land intended to be resumed. Whether or not a particular individual has a right of objection may, in a particular case, depend upon the boundaries of the land to be acquired;
  • section 175 of the Land Acquisition Act also requires an objector to specify their grounds of objection. Unless the objector knows with certainty the land which the Minister intends to acquire, it will be very difficult to include all relevant grounds of objection, and unreasonable to expect the objector to be able to do so;
  • section 177 requires that a taking order issued by the Minister must be "consistent with the notice of intention". Unless the notice of intention identifies the boundaries of the land which it is intended to acquire, it is difficult to see how the question of whether any particular taking order is consistent with the notice of intention could be definitively resolved.

The Court rejected the Minister's argument that the degree of specificity required in a notice of intention depends on the location of the required land. The Minister had submitted that the land in the vicinity of James Price Point is very different in character to closely developed urban land, being remote, undeveloped and unallocated Crown land. The Minister argued that these characteristics of the land justified a level of uncertainty in the description of the land which could not be justified in an urban environment.

The Court held that there is no reason to suppose that the precise location of the boundaries of the land in respect of which it is proposed to extinguish native title rights in the vicinity of James Price Point is any less important to the group who claim to have a bundle of rights associated with that title than the precise location of the boundaries of land proposed to be acquired would be to those with an interest in that land in an urban environment.

The Court found that the notices did not contain "a description of the land required" as was necessary under section 171(1)(a) and that the notices were invalid.

Implications for other jurisdictions

Compulsory acquisition legislation is not identical in each State and Territory, however all legislation requires the notice to contain a description of the land. This decision is an example of a court considering mandatory requirements in the context of the rest of the legislation.

Agencies taking land under compulsory acquisition legislation should ensure that they include a detailed description of the land they intend to resume in order to ensure that persons who have or may have an interest in the land are able to engage in the objection process fully informed.

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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.