The power of constructing authorities to compulsory acquire land has recently been considered by the Supreme Court in a decision highlighting a number of important issues for both constructing authorities and land owners.

Key issues

The Acquisition of Land Act 1967 (Act) empowers constructing authorities to compulsorily acquire land from owners for various public purposes. In Hamercall Pty Ltd v Minister for Transport and Main Roads & Ors [2015] QSC 114, the land owner sought declarations in the Supreme Court of Queensland challenging the validity of the compulsory acquisition of parts of its land under the Act. The case highlights the following key issues for land owners and constructing authorities in regard to the compulsory acquisition of land:

  1. A constructing authority must comply with the processes set out in the Act when taking land. In the event of non-compliance, the Court will consider whether there is a legislative purpose to invalidate an act that failed to comply with statutory requirements.
  2. A constructing authority must only take land for a relevant purpose and must not take land for an improper or ulterior purpose. In considering the purpose for which the land has been taken, the Court will look at the whole of the circumstances and the mere fact that the constructing authority has coordinated its activities with other authorities or persons does not amount to an impropriety.
  3. The Act sets out the process for notification and consideration of proposed resumptions. There is no statutory obligation to consult more broadly or extensively than required by the Act but constructing authorities should nevertheless take care to ensure that owners have the opportunity to be heard on relevant issues.

Background

The owner of land resumed for transport purposes by the chief executive of the Department of Transport and Main Roads applied to the Supreme Court for declarations that the taking of the resumed land was invalid.  The grounds of invalidity relied upon by the owner were:

  1. The delegate who heard the objections to the resumption was not property authorised to do so.
  2. Required material was not submitted to the Minister for consideration as part of the application for resumption.
  3. The land was taken for an improper purpose.
  4. There was a denial of natural justice to the land owner.

Delegate’s authority

The Act provides that a constructing authority which proposes to take land must serve a notice of intention to resume on the land owner who has the right to make an objection against the proposed resumption.  Any objection made to the resumption must be heard by the constructing authority or its delegate.

In this case, the owner made a written objection and an oral hearing was conducted by an officer of the department. The officer who heard the objection made a recommendation that the area proposed to be resumed be amended and an amended notice of intention to resume was issued.

The owner then objected to the amended notice and requested a further hearing which was heard by the same departmental officer who subsequently recommended that the constructing authority apply to the Minister to take the land in question.

In the Court, the owner argued that the departmental officer was not properly authorised to act as the chief executive’s delegate. Ultimately, this argument was rejected by the Court having regard to the facts of the matter. Furthermore, the Court was prepared to accept that even if there had been irregularities in the appointment of the delegate, there had been substantial compliance which was sufficient in the circumstances.

While the decision reinforces the importance of constructing authorities ensuring that delegates are appropriately authorised, it also highlights that the issue of invalidity is principally a legal issue to be determined on the construction of the statutory provisions. In this case the Court did not consider that there was a legislative intent to invalidate an act that failed to comply with the relevant statutory requirements.

Submission of required information

The owner alleged that the application to the Minister to take the land was deficient as it failed to include a range of mandatory information. The Court however found that the application was supported by the required information.

Purpose of the taking

The constructing authority sought to take the land in question for the purposes of transport, in particular road purposes. The land was primarily intended to be resumed to be used for State-controlled roads. However, some of land would also be used for roads under the control of local government. Furthermore, it was alleged that the resumed land would also be used to service a proposed quarry development on adjoining land. Finally, it was alleged that the resumed land would also be used for Energex infrastructure.

Having regard to the facts of the matter, the Court held:

  1. the land was to be acquired for State-controlled road purposes;
  2. while some of the land would be used for local road purposes and the department had liaised with the local government about the proposed resumption and road works, there was no improper or ulterior purpose to the resumption;
  3. the fact that the proposed quarry, if approved and constructed, would obtain access over part of the resumed land did not affect the resumption—the main or predominant purpose of the road was not to service the quarry;
  4. there was no evidence to support the contention that Energex proposed to use the land for its infrastructure or that this was a purpose for the resumption.

Natural justice

The acquisition process under the Act requires the constructing authority to apply to the Minister to take the land with the Act specifying the information required to be submitted to the Minister for consideration. The owner alleged that it had been denied natural justice as it had not been provided with an opportunity to reply to the material submitted to the Minister.

In the Court’s view, the Act does not require that a land owner have the opportunity to comment upon or reply to the application to the Minister. However, the Court noted it would be different if the application to the Minister contained matters which were new in substance and about which the land owner had not been given the opportunity to be heard.

Conclusion

In this case the owner failed to demonstrate grounds to invalidate the resumption. Nevertheless, the decision is a useful reminder of the need for constructing authorities to take care to comply with the process and requirements set out in the Act and that owners who can identify irregularities in the resumption process may be able to successfully challenge resumptions.