The process of acquiring land or an in interest in land, such as an easement, is underpinned by the Land Acquisition (Just Terms Compensation Act) Act 1991 (the Act). Whilst the NSW State Government has published a number of resources to guide stakeholders through the acquisition process, this brief commentary will discuss the key steps involved and provide some practical guidance for council staff.
Private or compulsory acquisition of land
There are two main processes by which a council may acquire land: by a private agreement (by contract or deed) or compulsory acquisition. Another method, less frequently adopted, is where the parties agree that the acquisition is to occur via the compulsory process.
1. Private agreement
The most common method of land acquisition is by negotiation and agreement. In this situation, the council and the landowner agree on the price to be paid for the land and the transaction takes place just as it would if the land was being purchased by an ordinary person.
To improve fairness and transparency in the land acquisition process, NSW State government policy requires the council, when first notifying a landowner that their land is required for a public purpose, to approach the landowner in person (except in exceptional circumstances) and to appoint a designated person to coordinate all interactions between it and the affected landowner. The council must also provide the landowner with a copy of the NSW Government’s ‘Land Acquisition Information Guide’ or an equivalent document.
When contact is established with the landowner, the terms of the acquisition can then be negotiated to suit the specific needs of the parties.
The ultimate decision to acquire land needs to be made by a resolution of the council as this is not a decision that can be delegated. However, an in-principle agreement may be negotiated with a landowner prior to a council resolution provided that the ‘agreement’ is then subject to the passing of a council resolution approving the purchase. It is important for the person conducting the negotiations to ensure that the landowner understands that any offer is subject to approval by the council.
2. Compulsory acquisition
Except in certain specified circumstances, the Act requires councils to make genuine attempts, for at least 6 months, to acquire land by agreement before any action is taken to compulsorily acquire the land. The specified circumstances include where agreement is reached before the end of the 6 month period, as well as where the affected owner refuses to negotiate, cannot be located, or agrees to a shorter timeframe. The 6 month negotiation period also does not apply to the acquisition of Crown land or land below the surface.
If a private agreement cannot be reached, the acquisition can occur via the compulsory process, subject to the Minister and the Governor’s approval. The decision to apply for the Minister and Governor’s approval needs to be made by a council resolution. The application should then be prepared in accordance with the NSW Office of Local Government’s guidelines.
If the council’s application is approved, the compulsory acquisition can then occur in accordance with the procedures set out in the Act. This will involve the service of a ‘Proposed Acquisition Notice’ on relevant land interest holder(s), notifying the NSW Registrar General, and notifying the NSW Valuer-General.
After the period of notice (usually 90 days) has expired, the land is acquired by the publication of an ‘Acquisition Notice’ in the Government Gazette. A copy of the Acquisition Notice must also be published in at least one newspaper circulating in the local area or on a website that the council believes is appropriate to bring the acquisition to the notice of people in the local area.
3. Compulsory acquisition by agreement
This process involves the council and the landowner agreeing that the acquisition is to occur via the compulsory acquisition process described in (2) above. In our experience this method is preferred by the NSW Department of Crown Lands when the land to be acquired by the council is Crown land.
Identifying relevant interest holders and third parties
Council staff should conduct a title search of the land designated for acquisition early in the process to identify any relevant encumbrances and stakeholders. If the land is subject to a caveat, mortgage or lease, a landowner may need to procure the consent of any third parties for the acquisition to occur by agreement.
If the council is not proposing to acquire an entire lot in a deposited plan, it will need to engage a surveyor to prepare a survey plan of the land to be acquired. The type of plan required will depend on the nature of the interest being acquired and whether the land is to be acquired privately or via the compulsory process.
If the council applies for the acquisition to occur via the compulsory process, a plan of acquisition identifying the land will need to be registered at the NSW Land Registry Service before the NSW Office of Local Government will process the council’s compulsory acquisition application on behalf of the Minister.
Each landowner affected by an acquisition is entitled to be compensated ‘on just terms’ in accordance with the Act. The Act contains a statutory guarantee that the compensation will not be less than the market value of the land assessed in accordance with the Act and unaffected by the proposal for acquisition.
The Act specifies the matters which need to be taken into consideration when determining the value of the compensation payable. These matters include not only the market value of the land to be acquired, but also disturbance costs of the landowner, including their reasonable legal and valuation fees, financial costs (such as fees imposed by their mortgagee), any special value of the land and any disadvantage resulting from relocating a person’s residence (if relocation is necessary).
The matters which need to be taken into consideration when land is being acquired by compulsory acquisition must also be taken into account when land is being acquired by negotiation and agreement, unless the land is available for public sale . The land is available for public sale if the landowner holds it out as being for sale.
Briefing a qualified valuer early in the negotiation process will assist the parties to reach agreement on the compensation payable.
If no agreement is reached and the acquisition occurs via the compulsory process, the compensation will be determined by the NSW Valuer-General, at the council’s cost.
When the compensation is determined by the Valuer-General the council must offer that amount to the landowner in a ‘compensation notice’. If the landowner objects to the amount offered they may lodge their objection with the Land and Environment Court of NSW and the Court will determine the amount of compensation. If this occurs it is open to the council to argue in the Court proceedings that a lower compensation amount should be payable rather than the amount which was determined by the Valuer-General.
Timeframes and project delivery
The acquisition of land, or an interest in land, is often undertaken for the purposes of constructing public infrastructure that is the subject of a specific funding grant and which will be carried out by contractors. When procuring contractors and estimating project delivery timeframes, council staff should keep in mind the following matters, as they can significantly delay delivery of a public infrastructure project:
- In most (but not all) circumstances the council is required to attempt to acquire the land by agreement for at least 6 months before serving a Proposed Acquisition Notice on the landowner under the compulsory acquisition process;
- Time needs to be allowed for the making of the council’s compulsory acquisition application to the Minister and Governor, for that application to be considered by the Minister and for approval to be given to enable the acquisition to proceed;
- Unless approval of the Minister is obtained for a reduced time period, or the affected landowner agrees, the compulsory acquisition of the land can only occur 90 days after the council gives the affected land interest holder a Proposed Acquisition Notice.
While the acquisition of land can appear to be straight forward process, there can be numerous issues that can add complications and delay. Keeping the matters outlined in this short guide in mind will assist you to plan and acquire land effectively and efficiently.