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Written by Emanate Legal’s Barry Taylor (Lawyer/Solicitor) & Venesa Gleeson (Lawyer/Solicitor)
In Queensland, the State or Local Governments can apply to take all or part of your land and use it for infrastructure projects like building roads, dams or adding electricity.
The Government can take ownership of your land whether you use it for housing, business or primary production (like farming), however they can only legally do this through a clearly defined process, and they must fairly compensate you for the loss of your property and any impacts you experience as a direct result.
This process is called Resumption (also known as ‘Compulsory Acquisition’) and it starts when the department that needs your land (known as the constructing authority) sends you, the landowner, a Notice of Intention to Resume (sometimes called an NIR).
The two most common ‘constructing authorities’ in Queensland are the Department of Natural Resources, Mines and Energy and the Department of Transport and Main Roads.
To read the legislation governing resumptions, you can read the Acquisition of Land Act 1967.
Every land holder whose property is part of the resumption project zone will receive a Notice of Intention to Resume (NIR) letter from the constructing authority.
Should you receive an NIR, you have the right to object to the resumption of your land, however you must submit your objection within at least 30 days from the date on the NIR.
Signing an NIR or submitting an objection without first consulting a lawyer can dramatically affect your chances of receiving a satisfactory resumption outcome.
Should you elect to object to the NIR, the objection must be prepared as a written submission outlining why you object to your land being taken by the constructing authority.
An authorised delegate of the constructing authority will consider your objection and determine the outcome. A skilled resumption lawyer can help you draft your objection and represent you effectively should a hearing be required.
A landholder served with an NIR is not required to do anything in order to accept the NIR.
Once the period to file an objection has lapsed, and before twelve months from the date of the NIR, the constructing authority will publish a ‘Taking of Land Notice’ in the Queensland Government Gazette.
On the date the ‘Taking of Land Notice’ is published, the land ownership is transferred to the constructing authority. From the date of publication, the landholder is entitled to claim compensation for the value of the land. The claim must be made within three years of the notice appearing in the Government Gazette.
As a ‘Dispossessed Landholder’, you are entitled to claim compensation from the constructing authority.
The claim for compensation must be in writing. It is recommended you engage a valuer and a lawyer to assist you in understanding the basis of the claim and how much you should claim. All reasonable and necessary costs in the preparation and filing the claim for compensation are included as part of the process.
This may be a more involved process for businesses (for example rural or primary production) than for residential properties.
The biggest indicator of compensation is the ‘market value’ of the property on the date the Taking of Land notice is published in the Queensland Government Gazette. However, there are also circumstances which might give rise to claiming and assessing compensation payable on the ‘highest and best use’ of the land.
Accepting the compensation offer
Should you be satisfied with the compensation offered by the constructing authority, you can accept it and return it to the relevant constructing authority, who will document the successful closure of the matter and arrange a settlement date for payment of the compensation.
What happens if you can’t reach agreement with the Government on the amount of compensation you would like for your property?
Should your negotiations with the constructing authority not result in a mutually acceptable figure being reached, you can reject the constructing authority’s offer and refer the matter to the Land Court, where a Land Court Member will reach an independent decision after hearing from the parties and experts nominated by them.
This document is intended only as an overview as to what might be expected as part of the resumption process; it is not intended as a complete guide or formal advice.
For more detailed advice, we recommend contacting a competent resumption lawyer with a track record in positive client outcomes. Emanate Legal is extensively experienced in Resumption and Compulsory Acquisition matters, and any of our team would welcome the chance to discuss your resumption questions with you.
Emanate Legal provides commercial legal advice and negotiation services to primary producers, businesses and government departments in Queensland and the Northern Territory. The Firm provides services from offices in Brisbane, Townsville and Roma. Private sector clients range from major Australian and foreign owned corporations with international operations to small and medium sized businesses with purely local interests. Emanate Legal’s public sector clients include government departments, statutory authorities and government business enterprises and corporations at Federal, State and local levels.
For over 30 years, Barry Taylor has practiced in major resumption / land injury matters throughout Queensland and Northern Territory including negotiating and documenting a range of compensation agreements on behalf of both landowners and constructing authorities to ensure beneficial outcomes to clients. Barry is the Foundation Director of Emanate Legal and a practising lawyer operating out of Townsville, Brisbane and Roma. He regularly contributes articles on industry and law on his personal website, https://www.barrytaylor.com.au.
Venesa has a reputation for developing and implementing considered strategic outcomes to complex and challenging issues particularly in respect of resources, infrastructure and planning and environmental law. Clients that Venesa has represented and advised include various local governments, large corporations, and some of the largest cattle grazing property owners in Australia. She regularly advises on compulsory acquisition processes and major development/infrastructure projects, including Hardship Applications. She specialises in Planning and Environment and Land Court matters.