New Land Acquisition and Compensation Regulations 2021

The current Land Acquisition and Compensation Regulations 2010, due to expire on 22 June 2021, will be replaced by the new Land Acquisition and Compensation Regulations 2021 (Regulations) on 21 June 2021.

The Regulations replicate the previous regulations with some revisions.

There is no change to the existing exemption categories currently prescribed under the 2010 regulations. Pursuant to section 5 of the Land Acquisition and Compensation Act 1986 (Act), the land must be first reserved by or under a planning instrument for a public purpose before it is acquired, usually by applying a public acquisition overlay. However, section 5(2) of the Act creates exemptions for prescribed land. The current prescribed exemptions are replicated in the Regulations, specifically:

• land to be acquired for a road widening or the deviation of a road if the land is only part of an allotment and:
  • the area of the land to be acquired is less than 10 per cent of the total area of the allotment; and
  • the total value of the interest to be acquired is less than 10 per cent of the value of the unencumbered freehold interest in the total area of the allotment.
• land over which an easement is to be acquired if the acquisition of that easement will not reduce the value of the unencumbered freehold interest in the allotment by more than 10 per cent.

These prescribed exemptions have a significant impact on the operation of the Act, with 23 per cent of all compulsory acquisitions over the past decade being easements and around 50 per cent of the compulsory acquisitions of local councils falling into the category of minor road widening or deviations (therefore, exempt from requiring reservation before acquisition).

Standardised forms are provided in the Regulations. These forms are pro-forma notices that acquiring Authorities must complete, and statements of rights and obligations that are required to be given to affected landholders. The Regulations make the following updates to current forms:

• revision of the standard text to make them clearer and to improve instructions for completing the forms
• Form 7 (notice of acquisition) will require more information to be included about the nature of the interest being acquired, the legislation that authorises the acquisition, and the purpose of the acquisition
• Form 11 (acceptance of an offer of compensation) and Form 12 (claim for compensation when an interest is not taken) will still need to be witnessed, but will no longer require the witness to be someone able to witness statutory declarations (i.e. any adult can now witness).

The Regulations prescribe that loans for homeowners whose principal place of residence is compulsorily acquired can receive a loan up to $750,000 where they cannot find a similar interest in similar alternative land. Previously, the cap was $500,000. Note that these loans are very rare with only three granted in the last decade.

The Regulations continue to prescribe the fee for lodgement of notice of intention to acquire land at 4.4 fee units.

The Regulations will sunset in 2031.

Authors: Tess Kerridge & Christopher Watt

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Tess Kerridge

Christopher Watt

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