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Peta Olive, Aitken Partners, LawyersBy Peta Olive & Natasha Ozolins, Aitken Partners, Lawyers, Melbourne.

Compulsory land acquisition” is a phrase that the majority of us and our clients hope we will never have to encounter. It’s something that only happens in the movies right? Wrong – unfortunately compulsory land acquisitions are a fact of life and due to our ever increasing population there is ongoing need to provide bigger and better infrastructure on privately owned rural, residential and commercial land.

What is Compulsory Acquisition?

Compulsory land acquisition is the acquisition of a landowner’s privately owned land by an Acquiring Authority, be it a Government Department or a Statutory Authority. A compulsory acquisition of land can result in a full or a partial acquisition for projects such as roads, public parks or train lines; or it can result in the acquisition of an easement over the land for utility projects such as water and electrical pipelines.

Who is entitled to Compensation?

Every person or entity who has an interest in the land at the time of the compulsory acquisition has a potential right to claim compensation. Therefore, it’s not only landowners who have a right to claim compensation. Tenants, occupiers, licensees and agistees all have a potential right to claim compensation for loss suffered as a consequence of the acquisition.

Legislation

Compulsory land acquisition claims are complex and this is evidenced by the fact that in Australia there are nine separate pieces of legislation governing compulsory land acquisitions in each State, Territory and the Commonwealth. To add to the complexity of this web of legislation, none of the nine pieces of legislation mirror each other. Whilst all the legislation share common ground in attempting to reinstate a landowner and/or occupier to the position they were in prior to the acquisition, each piece of legislation applies different processes in which to make claim and sets out different thresholds for compensation to be paid.

What are my Rights?

It is imperative for anyone that will be affected by a compulsory acquisition to contact lawyers experienced in this area of law early on in the process to ensure that they fully understand their rights to compensation and the process that must be followed under the relevant piece of legislation.

Common Entitlements

Aside from being compensated for the loss of land, some other common entitlements to compensation that individuals and businesses may incur include:

  • claims for replacement property costs including reimbursement for stamp duty, conveyancing costs and registration fees;
  • Capital Gains Tax rollover relief;
  • reinstatement of fences, all weather access tracks, dams and bores, garden beds, sheds, stock crossings and signage;
  • reconfiguration of a businesses’ infrastructure on the land that remains;
  • loss of income claims during construction and temporary occupation periods;
  • loss of rental income claims where a landowner has suffered the loss of tenancies and/or reductions in rental income by reason of the land acquisition;
  • loss of a business owner’s executive time as a result of dealing with the land acquisition claim; and;
  • reimbursement of legal and professional fees incurred as a result of the land acquisition.

As highlighted above, compulsory land acquisition is a complex and unique area of law which in most cases involves more than just compensation for taking your land. It is imperative that any individual or entity impacted by a compulsory land acquisition obtains appropriate legal advice to ensure they are in the best position to claim all that they are entitled to should their land be ultimately acquired.

Contact the author directly by email or by telephone.

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