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Compulsory Acquisition

With highly skilled and experienced compulsory acquisition lawyers, our team advise and support you through the compulsory acquisition process.

Compulsory Acquisition

We act on behalf of claimants on a daily basis and have streamlined processes that allow us to obtain an optimal outcome for you, efficiently and methodically.

Expertise

Our team of lawyers hold a wealth of experience in compulsory acquisition matters. We deal with these claims on a daily basis, and have done so for hundreds of properties across Victoria, New South Wales and Queensland. We act for both landowners and the acquiring authorities, therefore we are well positioned to understand the strategies employed by both sides in a compulsory acquisition matter. We maximise the opportunities to enhance your compensation, by working with you to understand your land and relationship to it in intricate detail. We have an extensive network of consultants we work with to prepare supporting reports that maximise your claim.

We are a professional, highly skilled team of lawyers who are dedicated to helping you be fully and fairly compensated for the acquisition of your land.

What is compulsory acquisition

Compulsory acquisition is the process of a government organisation taking all or part of your land for the purposes of a typically public project.

It is often seen in relation to road projects, public open space initiatives or new developments where Council needs to take land for drainage or underground cabling purposes. Examples of current compulsory acquisition projects include:

Another form of compulsory acquisition can be found where a ‘Public Acquisition Overlay’ is applied to land, making that land substantially less valuable to a purchaser, or inappropriate for development. In this case, you could be eligible for compensation where you sell that land at reduced amount, or your planning permit application is refused.

The process for compulsory acquisition differs between states. Select your location to find out more.

Victoria: the process

The right to compensation depends on your relationship with the land. Typically, the owners registered on title, businesses that operate from the land and any tenants are eligible to claim compensation.

The way in which compensation is calculated under the Land Acquisition and Compensation Act (LAC Act) often leads to confusion and as a result, lost opportunity. It is a complex process that should always be followed under the advice of a legal professional with demonstrated skill and experience in compulsory acquisition.

Compensation - what am I entitled to? 

It is important that you obtain legal advice in relation to the acquisition as early in the process as possible, to ensure that you comply with the strict timelines under the Act and maximise the compensation.

If you are eligible to make a claim for compensation, all your necessarily incurred legal and professional expenses are payable by the acquiring authority, up until the matter is referred to a Court or Tribunal (if need be).

For example, your legal costs would be payable by the acquiring authority from the date you receive a Notice of Intention to Acquire, through to the preparation of your claim, the negotiation phase, and up until you finalise the matter by reaching a settlement. If the matter does not settle by agreement, the parties would typically refer the matter to the Court or Tribunal for resolution.

The acquiring authority is also required to pay your necessarily incurred consultant costs. These could include the cost of a valuer in preparing an independent valuation of your land, or a town planner to provide strategic planning advice as to the ‘highest and best use’ of your land. Whether we need to engage consultants such as this will depend on the unique circumstances of your acquisition.

New South Wales: the process

Further information to come.

Queensland: the process

In Queensland, the Acquisition of Land Act 1967 (Qld) governs your right to compensation. Those who have an interest in the whole or part of the land resumed generally have a right to claim. Apart from the landowner, this can include lessees and businesses operating on the land.

Land is generally taken by a constructing authority, often the State or a local government, for a public purpose set out in the Act.

A resumption can proceed by way of agreement or through an acquisition process under the Act. In either scenario, it is always best to obtain legal advice as early as possible in the process. If you are approached with an offer to resume your land by agreement, we can review and negotiate the terms of the resumption agreement and assist you with negotiating a fair value of compensation.

Claimants have three years from the date the resumption is published in the Queensland Government Gazette to lodge a claim.

Compensation - what am I entitled to? 

Compensation is calculated based on a valuation of the land resumed and can also include other components such as disturbance, severance and injurious affection. These components of your claim may need to be informed by other consultants with expertise in town planning, hydrology or traffic, for example. The resuming authority will reimburse you for your reasonable professional fees associated with assessing these issues. In most cases you will be reimbursed for all or the majority of professional fees associated with your compensation claim. We will ensure that you obtain the appropriate professional advice so that you lodge a fully informed claim that captures the full scope of your losses.

Experience

Our compulsory acquisition lawyers are highly skilled in advising on:

  • land acquisitions in residential, rural and commercial settings
  • easement acquisitions
  • acquisitions of land and easements by agreement with the acquiring authority
  • ‘Loss on sale’ or 'planning blight' claims, where the Public Acquisition Overlay (PAO) on your land decreased the sale price or resulted in a planning permit being refused.

Services

  • meeting with you to understand your relationship to the land, and how it is used
  • analysing the offer made by the Acquiring Authority (if any) to find any errors, incorrect assumptions or oversights
  • seeking an advance of the compensation offered so that you can access those funds immediately, while reserving your rights to negotiate a higher sum
  • briefing an experienced land valuer to determine the appropriate market value of your land
  • engaging experienced consultants to provide their opinion on the acquired land and the impact of the proposed public use on the remainder land (such as strategic planning, flora and fauna assessments, or traffic engineering)
  • advising you on and preparing a robust and holistic claim for compensation
  • corresponding with the acquiring authority on your behalf
  • negotiating a settlement, including appropriate terms and compensation amounts
  • proceeding to trial to seek determination of your compensation.

FAQs Victoria

What can I claim?

The heads of compensation provided for under the Land Acquisition and Compensation Act 1986 (Vic) are:

  • Market value: This is based upon an independent valuation of the land
  • Special value: “This property is part of a larger portfolio of properties I have in the area. By acquiring it, you are reducing the overall value of my portfolio”
  • Solatium: Cannot be more than 10% of the market value of the land. Payable for intangible and non-pecuniary loss: “This property has been passed down through four generations”
  • Loss attributable to disturbance: “by taking this part of my land, my front fence needs to be replaced/dam needs to be moved/security cameras need to be reinstalled”
  • Loss attributable to severance: “by taking part of my land, you have reduced the value of the balance land by more than just the value of land acquired”
  • Enhancement or depreciation of the balance land once the acquisition has occurred: “By acquiring this land, the balance of the land is no longer commercially viable for development” or “By acquiring this land for the purposes of upgrading the road intersection, the value of my balance land has increased”.
  • Necessarily incurred legal, valuation and other professional expenses incurred by you (the claimant). This can include lawyer fees, tax advice, or consultant advice. Always check with us before incurring an expense so we can make sure it is eligible to be paid by the acquiring authority.

What is the timeline?

From the date of service of a formal ‘Notice of Intention to Acquire’ upon you by the acquiring authority, through to settlement of the claim by negotiation, is typically 6-12 months.

If the matter is complex or the parties cannot resolve the compensation between themselves, the matter can be listed in the Supreme Court or VCAT. If a matter is litigated, this can add an additional 1-3 years to the process.

How long does it take until I get compensated?

The acquiring authority is required to give you its offer of compensation within 14 days of service of the Notice of Acquisition upon you. Once you receive this initial offer, you can immediately seek an ‘advance’ of this sum (i.e have it paid to you). This doesn’t bind you to accept this offer, but instead is a mechanism built into the law to help claimants minimize their losses by allowing them to access the initial compensation offer right away, and invest it as they see fit. You can then continue to negotiate the final settlement.

If you disagree with the initial offer of compensation from the authority, you have 3 months to prepare your response, which includes your counter-offer that we would help you prepare.

Can I fight to keep my land?

Technically yes, however it is rarely successful. Please contact us if you would like advice on your specific circumstances.

Your best option is usually to maximise your claim to compensation by engaging lawyers early in the acquisition process.

Who pays my legal fees?

The Land Acquisition and Compensation Act 1986 (Vic) provides that the authority is to pay any legal, valuation and other professional expenses necessarily incurred by the claimant by reason the acquisition.

If the matter doesn’t resolve by negotiation and is referred to the Court or VCAT, legal and professional fees from the date of ‘referral’ are your responsibility alone, with the possibility of the acquiring authority being ordered to pay these by the Court or Tribunal if you are successful.

Sometimes, the acquiring authority will only pay your costs at the end of the matter. If this is the case, Holding Redlich has ways to manage this so that you are not out of pocket. Please contact us for further information.

Am I eligible for compensation?

Any person who had an interest in the land when the Notice of Acquisition was served has a claim for compensation. What the value of that claim is, depends upon your specific circumstances.

Typically, the following parties are eligible to claim compensation:

  • registered proprietors (owners on title) of the land
  • businesses on the land
  • tenants on the land.

What is an acquiring authority?

An acquiring authority is a government body that is empowered by law to acquire land compulsorily for public purposes. Typically, this is major project departmental bodies such as Major Road Projects Victoria and Level Crossing Removal Project, local Councils and water authorities such as Yarra Valley Water Corporation.

When does the acquiring authority own my land?

Legal right to the land passes once the acquiring authority publishes the ‘Notice of Acquisition’ in the Victorian Government Gazette.

The acquiring authority will become the ‘registered proprietor’ on the certificate of title to the acquired land once the authority lodges the Notice of Acquisition with the Registrar of Titles at the Titles Office. They can do this without the need for you to provide your title to the land or any other permissions. It typically happens within a fortnight of you being served with a copy of the Notice of Acquisition.

Can I stay on my land?

If you live on the land that has been acquired by the authority and it is your primary place of residence, the authority needs to give you at least 3 months plus 7 days’ notice of its intention to take possession of the land (i.e you must leave by this time). They will typically speak with you to negotiate the date upon which you must vacate.

If it is not your principle place of residence, the authority needs to give you 7 days’ notice before taking possession of the land.

Note that if the authority is only taking part of your land, you remain the legal owner of the remaining land and are not required to vacate that portion.


FAQs Queensland

What can I claim?

Claims can include the market value of the resumed land (based on an independent valuation), severance, injurious affection (both relate to the diminished value of the balance land), disturbance (which includes professional fees) and special value. Disturbance claims can include professional fees incurred in preparing the claim, costs relating to the purchase of land to replace the land taken, removal and storage costs, costs associated with the connection of services or utilities, other financial costs, loss of profits from business interruption, and other economic losses reasonably incurred as a result of the taking.

What is the timeline?

A number of factors can influence the timeline for finalising a claim including but not limited to the area of land being acquired, what the land is being used for and how the resumption impacts the ongoing use of the land.

The preparation and negotiation of claims can take from anywhere between 3 months and 3 years, or longer, particularly if the matter is referred to the Land Court.

How long does it take until I get compensated?

If you request an advance payment, the constructing authority has 90 days to pay the advance sum. An advance payment can be requested at any time after a claim is submitted to the constructing authority. Once a total compensation amount is agreed, a settlement agreement will need to be prepared and signed by both parties. A final payment of compensation will normally be made between 30 and 60 days from the date settlement is reached.

Can I fight to keep my land?

When you are served with a notice of intention to resume, you have an opportunity to object to the resumption.

Who pays my legal fees?

The constructing authority is required to reimburse you for the reasonable professional fees you incur in preparing a compensation claim.

Am I eligible for compensation?

You are eligible for compensation if you have an interest in the whole or part of the land being resumed at the time the resumption notice is published.

What is an acquiring authority?

The State, a local government or other person authorised by an Act to take land for an authorised purpose.

When does the acquiring authority own my land?

On the date the resumption notice is published in the Queensland Government Gazette, at which time all interests in the land convert to a right to claim compensation.

Can I stay on my land?

The constructing authority is entitled to take possession of the land after the resumption notice is published. Normally the constructing authority will negotiate with you and agree on a date that you must vacate the land. Note that if the authority is only taking part of your land, you remain the legal owner of the remaining land and are not required to vacate that portion.