The power to compulsorily acquire land is sometimes used by local governments and other constructing authorities for the establishment of important community projects.
The recent decision of Genamson Holdings Pty Ltd v Moreton Bay Regional Council, which was handed down by the Supreme Court in April 2020, provides a great reminder to constructing authorities about how important it is to strictly comply with legislative requirements when exercising this power.
The process
In order for a constructing authority to resume a parcel of land, the constructing authority must follow the requirements set out under the Acquisition of Land Act 1967.
The Genamson Holdings case usefully summarises these requirements as a four-phase process:
Phase One: Council must issue the landholder with a notice of intention to resume. This notice must inform the landholder that they are able to make objections within a certain period of time.
The landholder must explain the reasons for their objection. The landholder may also request an objections hearing so that it has an opportunity to be heard by the local government (or a delegate) about their objections.
Phase Two: Council must consider the grounds for the objection. If the objections hearing was attended by a Council delegate, then the Council is required to consider the report prepared by the delegate in considering the grounds for objection.
Phase Three: Council may apply to the relevant Minister under the Acquisition of Land Act if Council wishes to proceed with the resumption, having considered the objections.
Importantly, notice of all objections should be provided to the Minister with Council’s application, including the names of objectors, a copy of every objection and a report by the constructing authority about the objections. This is required by section 9 of the Acquisition of Land Act.
This application must be made within 12 months after the date of the notice of intention to resume. If the Council fails to make the application within this timeframe, the resumption is automatically taken to have been discontinued.
Phase Four: The Minister considers the application made by the local government. The Minister may require the Council to provide further information if required. The Minister must also consider all statements and documents accompanying the application.
If the Minister is satisfied the resumption should proceed, a gazette notice will be published formalising the take of the land.
The case
The new case of Genamson Holdings involved a dispute about the resumption of a part of the land at a Caboolture shopping centre. The local government sought to acquire the land for the purpose of flood mitigation.
The resumption was contested by the landholder, and three objections hearings in total were held.
In this case, the Supreme Court found that the acquisition of land was discontinued, and various decisions made along the way by Council to attempt to give effect to the resumption were void and of no effect.
The reason for the Court taking that view included that:
- An engineering report provided in support of the landholder’s objections was not considered by Council when Council decided to proceed with the application;
- Council’s application itself contained errors, including ticking a box on the standard Department of Natural Resources Mines and Energy form that confirmed no objection had been received. The reports prepared by Council’s delegate at the objections hearings were not enclosed.
Although Council provided some of the required material several weeks after the initial application was made, by that point more than 12 months had passed since the notice of intention to resume was issued.
The Court found that the application made in the first instance was inadequate, and because more than 12 months had passed before any issues were addressed, the acquisition of land was discontinued.
However, even if the follow up information was provided within time, the Court identified a further issue with allowing Council to supplement its application in this way – it could create the risk that a Minister would decide a matter (or waste time reviewing a matter) without sufficient information.
Finally, the Court also expressed concern about Council not considering the engineering report. While the Court acknowledged it was open to Council to form a view that little weight should be provided to the report, that did not remove the local government’s requirement to consider it.
Takeaways
Because the compulsory acquisition power is such a significant imposition on private property rights, Courts have generally taken a very strict view towards the requirement to comply with the process under the Acquisition of Land Act.
The Court in Genamson Holdings acknowledged this when it said “it is an extraordinary thing for any authority, however altruistic its motivation, to take the land of another – otherwise than by agreement”, and later confirmed that “strict compliance will be required” to the Acquisition of Land Act.
The takeaways for local government (and all constructing authorities) here are to ensure all steps are very carefully and methodically taken when resuming land in accordance with the process under the Acquisition of Land Act.
We regularly assist constructing authorities with all aspects of the Acquisition of Land Act process. If you have any queries about this blog or the resumption process generally, please contact our Local Government Team.