14 Mar 2013

Queensland reforms the land acquisition process for relatively straightforward resumptions

by Majella Pollard, Kaia Duce

The process for the Queensland Government to acquire land will be shortened in certain circumstances

The Land, Water and Other Legislation Amendment Bill 2013 was introduced into the Queensland Parliament by the Minister for Natural Resources and Mines, Andrew Cripps MP, on 5 March 2013.

The Bill proposes a number of amendments to the Acquisition of Land Act 1967 (ALA) to shorten the acquisition process for relatively straightforward resumptions where the parties have reached agreement or the claimant does not object to the resumption.

The primary policy objectives of the Bill relate to the implementation of recommendations from the Queensland Floods Commission of Inquiry, which will be the subject of a separate article.

Multi-parcel purpose

A new section 3 is to be inserted into the ALA defining the term "multi-parcel purpose", which is to apply when it is necessary to take more than one parcel of land for a particular purpose, for example linear infrastructure such as roads and railways.

Simplified resumption process

Currently the Governor in Council has the power to declare that land is taken.

Clause 25 of the Bill amends section 9 of the ALA so that the relevant Minister may, by gazette notice, declare that land is taken in the following circumstances:

  • if there are no objections; or
  • if the land is being taken for a multi-parcel purpose, where there are no objections to the taking of every other parcel of land or these parcels have already been taken or are the subject of a resumption agreement.

"Resumption agreements" to replace section 15 agreements

Section 15 agreements are now referred to as "resumption agreements". The Bill proposes to insert a new section 15 which provides that a resumption agreement must:

  • be in writing;
  • be signed by each "affected person"; and
  • state the purpose for which the land is to be taken, a description of the land and, in the case of an easement, the rights and obligations to be conferred and imposed by the easement.

An "affected person" includes each person who will be entitled to claim compensation under the ALA in respect of the resumption and a mortgagee of the land. The current section 15 does not specify who must sign the agreement for taking.

Clause 15C provides the process for taking by the Governor in Council. A constructing authority may also declare that land is taken where each affected person has signed a resumption agreement. However, a constructing authority may only take land under a resumption agreement for a multi-parcel purpose if every other parcel of land required to be taken to carry out the multi-parcel purpose:

  • has been taken under the ALA; or
  • is the subject of a resumption agreement entered into by the constructing authority; or
  • is the subject of a notice of intention to resume for which the objection period has ended and no objections have been received.

This is similar to the simplified resumption process under section 9.

Simplification of process to amend gazette resumption notices

Clause 26 simplifies section 11 of the ALA and clarifies that section 24AA of the Acts Interpretation Act 1954 (AIA) may be used to amend gazette notices. Section 24AA of the AIA provides that if an Act authorises or requires the making of an instrument or decision, the power includes the power to amend or repeal the instrument or decision and that power is exercisable in the same way, and subject to the same conditions, as the power to make the instrument or decision.

Delegation of Ministerial authority and functions

Clause 30 of the Bill amends section 36B of the ALA to allow the delegation of the Minister's functions under the ALA to an appropriately qualified officer or employee of the Department. Previously the Minister could only delegate the Minister's powers as a constructing authority. This will enable the Minister's delegate to consider applications under section 9 (ways in which land is to be taken) and section 15 (resumption agreements). However, the Minister cannot delegate the Minister's functions under section 9 if an objection was received in response to the notice of intention to resume.

Transitional provisions

Clause 49 of the Bill provides that where, prior to the enactment of the Bill, an application has been made to take land under the previous section 9(2) of the ALA, section 9 of the ALA as in force immediately prior to the commencement of the Bill applies to the application.

Clause 50 of the Bill provides that in circumstances where a constructing authority had entered into an agreement to take land under the previous section 15(1) of the ALA and the land had not been taken prior to the commencement of the Bill, then the new section 15 applies.

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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.