Resumption and Compulsory Acquisition of Land in Queensland

Queensland is in an infrastructure boom.

The Queensland Government has committed a record $89 Billion over 4 years to infrastructure projects and with the 2032 Olympics on the horizon the expenditure doesn’t look like stopping.

This leads to the often harsh practice of governments both state and federal, local authorities or utilities providers resuming land to build new and improve infrastructure for a growing population.

The Federal Government has the ability to resume land and that power is established under the Australian Constitution.

However, for the purpose of this article we will concentrate on the resumption of land by the Queensland State Government, Local authorities in Queensland and Queensland based utilities providers, referred to as the ‘Constructing Authority’.

In Queensland the Acquisition of Land Act 1967 (Act) is the main piece of legislation that administers this and the land may be taken for such infrastructure projects such as roads, railways, electricity, petroleum, gas and water supply to name a few.

Other legislation also authorises the taking of land including the Electricity Act 1994 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld).

The Constructing Authorities have very wide powers when it comes to resuming land.

The process can be done through a negotiation process or alternativity a ‘Compulsory Acquisition’

The process will usually commence by the citizen receiving a Notice of Intention to Resume’ (Notice) from the relevant Constructing Authority.

What do I do when I receive a Notice?

It is very important to get proper legal advice once you receive such a Notice.

You have two options when you get a Notice, you can:

• Object to the Notice
• Accept the Notice

Objecting to a Notice

If you wish to object to the Notice you must do so within the time frame provided which is not less than 30 days.

The objection must meet certain criteria.

The grounds for objection have to be supported by evidence and can be on the basis of:

• incorrect or insufficient information was provided to the public
• the proposed works/development is better located in a different area
• the decision is biased
• the works are unwarranted

It should be noted that the amount of compensation to be paid is not a valid ground for an objection.

The Constructing Authority will then review and assess the objection and decide to:

• proceed
• amend the Notice; or
• not proceed with the acquisition

If the Constructing Authority decides to proceed with a resumption, it will make an application to the Minister. 

After reviewing the application if the Minister is satisfied that the proposed resumption should proceed and application will be made to the Executive Council to have a ‘Taking of Land Notice’ published in the Queensland Government Gazette. 

The Taking of Land is effective on the day of publication of the notice in the gazette and your interest in the land is extinguished and converted to a right to claim compensation.

What if I do not Object to the Notice?

Once the period to file an objection has lapsed, and before twelve months from the date of the Notice, the constructing authority will publish a Taking of Land Notice in the Queensland Government Gazette.

From the date of publication, you are entitled to claim compensation and must be made within three years of the notice appearing in the Government Gazette.

What compensation can I claim?

It is strongly recommended that you obtain expert assistance with lodging your claim for compensation.

You should obtain advice from a lawyers and valuer experienced in this type of work to ensure you obtain the maximum amount of compensation you are entitled to.

The claim must be in writing and can be more complicated if it involves a business such as a rural property etc.

When looking at the compensation payable it is assessed on the fair and reasonable value as at the date of the taking, based on the highest and best use of the land.

In addition, the compensation has to take into account ‘Disturbance Costs’ which according to Section 20 of the Act include the following:

• legal costs and valuation or other professional fees reasonably incurred by the claimant in relation to the preparation and filing of the claimant’s claim for compensation;
• the following costs relating to the purchase of land by a claimant to replace the land taken
  •  stamp duty reasonably incurred or that might reasonably be incurred by the claimant, but not more than the amount of stamp duty that would be incurred for the purchase of land of equivalent value to the land taken
  •  financial costs reasonably incurred or that might reasonably be incurred by the claimant in relation to the discharge of a mortgage and the execution of a new mortgage, but not more than the amount that would be incurred if the new mortgage secured the repayment of the balance owing in relation to the discharged mortgage
  •  legal costs reasonably incurred by the claimant
  •  other financial costs, other than any taxation liability, reasonably incurred by the claimant
• removal and storage costs reasonably incurred by the claimant in relocating from the land taken
• costs reasonably incurred by the claimant to connect to any services or utilities on relocating from the land taken
• other financial costs that are reasonably incurred or that might reasonably be incurred by the claimant, relating to the use of the land taken, as a direct and natural consequence of the taking of the land
• an amount reasonably attributed to the loss of profits resulting from interruption to the claimant’s business that is a direct and natural consequence of the taking of the land;
• other economic losses and costs reasonably incurred by the claimant that are a direct and natural consequence of the taking of the land

What happens if I don’t accept the Offer?

If you do not accept the offer there is always the ability to negotiate further and if you are not satisfied after those further negotiations then the matter can be referred to the Land Court of Queensland for a decision.

The Constructing Authority will pay an “Advance” being its assessment of the compensation and Disturbance amount payable.

The costs of a referral to the Land Court of Queensland can be expensive and many disputes resolve without a decision being made by the Court.

How can FC Lawyers help?

These matters can be very stressful and our team has nearly 30 years’ experience assisting clients in relation to resumption and acquisition of land issues throughout Queensland. So, whether it is part of a land or a significant holding where you are operating a business from contact our team to get the best possible outcome.