Compulsory Acquisition

NSW Court of Appeal revisits compulsory acquisition law

NSW Court of Appeal revisits compulsory acquisition law.jpg

On 6 September 2018, the NSW Court of Appeal (Bathurst CJ, Ward JA and Payne JA) delivered judgment in the case of Roads and Maritime Services v Desane Properties Pty Ltd [2018] NSWCA 196.

The case concerned the validity of a Proposed Acquisition Notice (PAN) that had been issued by the RMS for the compulsory acquisition of a property owned by Desane at Rozelle. The property was required as part of the proposed Rozelle Interchange associated with the Westconnex road project in Sydney.

The Court of Appeal (in a unanimous judgment) overturned the decision of the primary judge and found that the PAN was valid. Accordingly, the RMS was able to proceed with the acquisition of the property.

In its judgment, the Court of Appeal gave useful guidance as to the circumstances in which a PAN will be legally defective. The Court held that:

  • PANs are not required to strictly comply with the Approved Form under the Land Acquistion (Just Terms Compensation) Act 1991 (the Act) and that “substantial compliance” is sufficient;

  • similarly, PANs do not need to precisely adopt the language of the Act at the time of issue;

  • there is no requirement for a PAN to state the public purpose for the acquisition;

  • there was no improper purpose on the part of the RMS in relation to the acquisition of the property. The Court found that the critical time for assessing purpose is not when the PAN is issued, but at the time of acquisition. The Court overruled the finding of the trial judge that the RMS intended to acquire the property as open space and parkland - as this would only arise once construction of the underground interchange was complete. The Court adopted a liberal approach to the necessary “purpose” and found that that there was no need to identify the specific purpose with precision at the time the PAN was issued.

Lessons from the Case

The case provides important appellant guidance as to the circumstances in which a PAN may be legally invalid.

The overriding theme of the case is that Courts should adopt a measure of flexibility when the validity of a PAN is challenged. That said, Councils and government agencies still need to exercise great care in the preparation of PANs and the surrounding process to avoid subsequent legal challenges to a compulsory acquisition.

For further information please don’t hesitate to contact:

Justin Conomy
Special Counsel
justin@couttslegal.com.au
1300 268 887

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

Simple overview of Compulsory Acquisition

All levels of government can acquire privately owned land for public purposes, for example road widening. The law does allow for the Government to acquire all of the land, part of the land or an interest in the land for example, an easement. However, there is plenty for a property owner to do to ensure that they get the best deal possible and this is why you should see the experts at Coutts.

 

The government authority that is proposing to acquire the private land is called the acquiring authority. Land can be acquired by agreement, or in the event that an agreement cannot be reached, by compulsory acquisition at a value determined by the Valuer General.

 

For the acquiring authority to compulsorily acquire land they must first serve the landowner with a Proposed Acquisition Notice (also called a PAN). Under recent amendments to the Land Acquisition (Just Terms Compensation) Act 1991 the acquiring authority must negotiate with the landowner for 6 months prior to the issuing of a PAN.

 

From the time that the landowner, or an interested party (for example a lessee) is issued with a PAN there are strict timeframes that must be adhered to. At Coutts we have specialist experience in this area of law as to the rights of the landowner or the interested party and the procedures to be followed and can help with this process and ensuring you get the best deal for you.

 

Five things to be aware of when the acquiring authority comes knocking on your door:

 

1. Do not sign any documents without getting expert legal advice;

2. Get legal advice – usually the reasonable costs of your legal advice are paid for by the acquiring authority;

3. You have the right to engage a Valuer – usually the reasonable costs of your valuer are paid for by the acquiring authority;

4. Always ask the acquiring authority for a full copy of its valuation if they are making an offer,

5. You have the right to be compensated and to negotiate the best deal for you.

 

For any further advice or legal assistance on this issue, please contact us at Coutts on 1300 268 887