By Ian Neil
Receiving notice that your property is intended to be resumed by the Government (Federal, State or local) to allow a development or public infrastructure to proceed can be stressful, particularly if the property being resumed is a long-held family home or a business that has relied on location as part of its business model.
Knowing your legal rights and knowing your rights to fair compensation are essential for anyone affected by a proposed resumption.
Also called “acquisition” under the Acquisition of Land Act (Qld) 1967, resumption of property (part or all of your land and house, including an easement or driveway) can only be done by a government authority for a proper public purpose (eg a road, a rail line, a hospital, urban planning or public works) or for works incidental to a public purpose. Land can be resumed with or without your consent, and time limits apply if you want to object to the proposed taking.
Top 10 things for land owners to know:
- How do I know if my land is likely to be resumed?
If your property is close to a construction zone or proposed construction zone, it might be targeted for resumption. You, as the landowner, will usually receive a Notice of Intention to Resume (NIR) from the relevant body seeking to resume your land. If you and the constructing authority agree to the acquisition, the taking of the land is effective from the date the notice for the taking of the land is published in the Queensland Government Gazette.
It is common at present for government authorities to invite the affected land owner to agree to an ‘early acquisition’. The process is essentially the same except it is more a ‘negotiated purchase’ from the land owner. If a negotiated result is not reached, the process reverts to a formal resumption.
In some cases, the constructing authority may temporarily occupy your land for the purpose of constructing, maintaining or repairing any works (to do things like erect workshops or sheds, or make temporary roads or car parks). You will be notified of this not less than 7 days prior and you will be advised for how long the occupation is expected to continue. You can lodge a claim for compensation at any time during the occupation and up to 3 months after by giving notice to the constructing authority about a compensation claim.
2. Can I object?
If you do not agree to the proposed resumption, you can object. You have 30 days from the date of delivery of the NIR to object to the proposed resumption. Grounds for objection could be that the resumption is unwarranted; the decision to resume is biased; incorrect or insufficient information was provided to the public; or the proposed works/development is better located in a different area. You will need evidence to support these grounds of objection. The constructing authority will then assess your objection. It is vital that you obtain legal advice to prepare an objection as your grounds for objection must state the facts and circumstances you will rely on should the matter proceed to Court.
3. How much will I be compensated?
Compensation covers:
- the value of the land resumed;
- damage or loss caused by the severance of a part/s of a property;
- damage to other land caused by use of statutory powers; and
- ‘Disturbance costs’ – defined in section 20 of the Acquisition of Land Act 1967 (basically, all the costs incurred as a consequence of the taking including reasonable costs of obtaining appropriate advices from consultants eg legal, valuation, town planning etc.
Calculating the value of the land resumed and the consequential losses requires expert assessment of the zoning of the land to identify prospective uses which may hold the highest and best use eg. a lot with a single residential house on it may be zoned for medium density residential, meaning the lot could have a block of units on it, not just a single house. This prospective use therefore has a higher value than the current use and the owner of the land should be compensated for the higher and better use value.
4. Who pays for my costs to re-establish (relocate)?
You will be liable for any taxes, rates and charges overdue at the time the land is resumed and that liability may be deducted from the compensation amount. Should you choose to challenge the resumption in the Land Court, you may need to pay for your costs of litigation. A Claim for Compensation should include a claim for compensation for:
- legal costs and valuation or other professional fees reasonably incurred in relation to the preparation and filing of the claim;
- costs and fees associated with releasing and existing mortgage and establishing a new mortgage for the purchase of a new property;
- stamp duty reasonably incurred for the purchase of new property, equivalent to the value of the property resumed;
- legal costs associated with the purchase of a new property;
- costs reasonably incurred during the purchase of a new property;
- removal and storage costs associated with relocating from the resumed land;
- costs associated with connecting services to the new property;
- an amount to compensate the owner (freehold; leasehold) for any interruption to the running of a business as a direct and natural consequence of the resumption; and
- any economic losses incurred by the property owner due to having to move properties (eg the cost of new school uniforms).
5. How is compensation assessed?
A valuer will assess the market value of the property to reflect what the market would be willing to pay for your land or business on the date of acquisition based on the highest and best use of the land. This valuation includes any fixed improvements like houses, sheds or fences. Reasonable costs for items identified above at point 4 are also included in determining the amount of compensation that may be claimed. If you need to refer the claim to the Land Court for determination (ie where a negotiated result can’t be achieved) the Claim must be filed within three years of the date the resumption was published in the Queensland Government Gazette.
6. What if I don’t accept the offer?
If you don’t want to accept an offer of compensation, you can negotiate with the constructing authority for a better compensation (or engage a lawyer to do that on your behalf). If negotiations are unsuccessful, the matter can be referred to the Land Court of Queensland for a decision. At that time, the constructing authority will pay an “Advance” being its assessment of the compensation and Disturbance amount payable. Most disputes are resolved via negotiation as referral to the Land Court can be expensive for both the land owner and the constructing authority. The Land Court of Queensland has jurisdiction to determine compensation unresolved by negotiation or mediation.
7. What if I’m happy to accept the offer?
If you are happy with the constructing authority’s offer, you can accept the compensation claim by writing to the authority. The agreement will be legally binding and you will need to sign various documents before settlement is arranged.
8. What happens if the project changes or stops?
If your land has been identified as requiring resumption in preliminary plans but you have not received a NIR, you do not have rights to compensation if the project area changes and your property will no longer require resumption. It is, however, rare for an authority to issue a NIR to a property owner if the project will not be going ahead as per the advertised plans.
9. How do I find out if my property is likely to be resumed?
Most government funded works for a public purpose are publicly notified before the works commence. Searches can be made of most authorities (eg Councils, Main Roads, Q’ld Rail). You should check the plans associated with any prospective works and assess if you think your property might be affected by the works. At that point it may be wise to contact a lawyer to discuss your options on the need to formally lodge an objection.
McCarthy Durie Lawyers have more than 43 years’ experience working for land owners in resumption matters, to ensure they are adequately and fairly compensated for the loss of their property by resumption. We advocate for our clients fairly and professionally and have a long track record of successfully negotiated outcomes. We also have an extended network of experts in town planning and valuation to assist in achieving the best and highest value for our clients.
For more information you can contact Ian, or call our planning and environment team on 07 3370 5100
