The most common reason to compulsorily acquire a piece of land is for a public work or to convert Crown land to freehold.
Interest in land may be acquired in one of two ways:
- by agreement with the owner/s and all interest holders or
- by compulsory taking without the agreement of the owner/interest holders.
The LAA requires that where the Minister or a delegate for the “acquiring authority” is directly negotiating the acquisition of an interest in land, the landowner must be informed of the procedures for:
- the taking of land and interests in land
- payment of purchase moneys
- compensation for the interest in land taken
- rights relating to the future transactions for interests in land either taken by agreement or compulsorily taken
- rights of appeal.
A structured right of appeal to the Governor against a decision of the Minister is set out in Part 3 of the Land Administration Act 1997 (LAA).
This right of appeal is only available in five specific instances:
- Forfeiture provisions (Section 35 LAA)
- Abandonment of a pastoral lease (Section 133 LAA)
- Cancellation of easements (Section 145 LAA)
- Setting of purchase price on surplus acquired land being disposed of (Section 190 LAA)
- Removal of unauthorised structures (Section 272 LAA).
All types of land and interests in land, including Native Title rights and interests, can be taken for a public work (a project carried out by the State on behalf of the community, such as the construction of new infrastructure).
However, the procedures for taking (the term used under the Land Administration Act 1997 in lieu of 'resumption' or 'compulsory acquisition'. It relates to the taking or acquisition of interests in land, whether by agreement or compulsion) are different for each type of land affected by a Taking Order.
Where land or interests in land are taken by the registration of a Taking Order, all rights and interests affecting the land are converted into a claim for compensation.
The acquiring authority or proponent is responsible for meeting compensation. The issue of compensation may be taken to the State Administrative Tribunal.
Section 51(xxxi) of the Australian Constitution expressly empowers the Federal Parliament to make laws for the acquisition of property. This power extends to any State or individual property in respect of which the Commonwealth Parliament has a law-making function.
The High Court decision of New South Wales v Commonwealth (1915) 20 CLR 54 held that the sovereignty of each State Parliament empowers it to take or acquire land with or without payment of compensation.
The power vested in this State to take land or interests in land is set out in Part 9 of the LAA and the compensation entitlement of owners of interests in land taken under Part 9 is set out in Part 10 of the LAA.