Compulsory acquisition - what happens when the tram takes your title
Government infrastructure projects are popping up everywhere at the moment.
So what happens when one of those projects affects your land? In short, not much can be done to prevent the government taking your land (called compulsory acquisition).
But there's is a lot you can do to make sure you don’t get short-changed.
All Australian governments have the power to acquire any privately owned land, or an interest in privately owned land (such as an easement) for government use or projects.
In the ACT, that power is provided by the Lands Acquisition Act 1994 (“the Act”).
The Act sets out the process the ACT Government must follow to acquire your land, the compensation you're able to recover for your land and the steps you need to take to claim your compensation.
How does the Government take your land?
If the Government has earmarked your land for a government project, it can acquire your land by either:
- Coming to an agreement with you about what bit of your land (whole or part) it will take and the amount of compensation it will pay (ie acquisition by agreement); or
- Taking your land by force, with the amount of compensation to be determined after your land has been acquired (ie compulsory acquisition).
If your land is compulsorily acquired, you'll be compelled by law to vacate your land regardless of whether you're willing to part with it.
While you'll be dispossessed of your land, you'll be entitled to compensation for your loss.
What's the process?
You’ll be notified
If the Government is considering acquiring your land, it's required to give you written notice of its intention to do so by way of a Pre-Acquisition Declaration. The Pre-Acquisition Declaration will set out the details of the land the Government is considering acquiring and the purpose for acquiring the land.
You can try negotiating
Once you receive a Pre-Acquisition Declaration, you can start negotiating with the relevant Government authority facilitating the acquisition of your land to reach an agreement about the terms of the acquisition and the amount of compensations payable to you.
If negotiations fail, they’ll take it anyway
If an agreement can't be reached between you and the relevant Government authority, the Government must make a Compulsory Acquisition Declaration that your land is to be compulsorily acquired. Once the Compulsory Acquisition Declaration is notified in the Legislative Assembly and published in a newspaper, the Government will own your land free from any other encumbrances such as a mortgage.
Why bother negotiating?
The advantage of negotiating an agreement with the Government is you'll have certainty about the amount of compensation without having to go through a claim process along with quick payment. The disadvantage is you may not be compensated for all you’re entitled to.
How are you compensated?
You, and every other person who has an interest in your land (eg tenants or holders of a license over your land) are entitled to an amount of money that will justly compensate for the Government’s acquisition of your land. Put another way, the Government’s acquisition of your land must be on “just terms”.
The amount of compensation payable to you can be negotiated with the Government, as discussed above. However, if you believe the offers being put to you by the Government don't accurately reflect your loss, you can make like Darryl Kerrigan and “tell him he’s dreaming’”.
The Government will then compulsorily acquire your property and you'll be required to put together your own claim for compensation. This will involve determining the amount of compensation you believe you're entitled to receive and obtaining evidence (including experts' reports) to support that view.
The Act sets out what matters are taken into account when assessing your claim for compensation. They include the market value of your property, any special value that you derived from your property, any loss that you suffer as a result of the acquisition and any reasonable expenses you incur.
Sound costly?
You’re right, it does, but we can help.
Depending on what was acquired, there may be considerable cost and time involved in briefing the relevant experts to obtain the evidence required to properly support your claim. The Act says you'll receive compensation for any legal or other professional costs reasonably incurred by you in relation to the acquisition of your land.
In the matters that we've been involved in, we've been able to negotiate with the Government for an advance payment of compensation to cover our clients’ legal fees and professional costs so their cash flow isn’t greatly impacted by the acquisition process.
What you should do?
Don’t panic; get advice about your legal rights.
The process involved in compulsory acquisition of land can be complex. For this reason, it's important the process is properly managed from the outset by or for you to ensure you get compensation for the loss of your land as quickly as possible, and for the full amount you're entitled to receive.
Meyer Vandenberg is working on claims for landowners whose land has been acquired by the ACT Government for a range of projects, including the light rail project. If you think your land may also be in the firing line tram line, or affected by another Government project, please call us to talk about how we can get you the most money possible to help you move on once your land is gone.
Bernice Ellis
Partner
Justine Harper
Lawyer