As Queensland's population continues to grow, the need to provide services and community facilities also grows.

This makes it necessary for the State to have the power to acquire land for public purposes to meet community expectations.

• Legislative provisions
• Methods of acquisition
• The gazette notice
• Compensation
• Common questions
• Glossary of terms
• Guide to acquisition of land for public purposes by the State (PDF, 250 kB)
  

Legislative provisions

State leasehold land is usually acquired under the Land Act 1994 though other Acts may also be used.

Freehold land is acquired under the Acquisition of Land Act 1967. The public purposes for which land can be acquired (e.g. for schools and hospitals) are identified in the second schedule to the Act.

Several acquiring authorities (e.g. Energex), which are categorised as 'Constructing Authorities', have been established (through separate legislation) in terms of the Acquisition of Land Act 1967. These authorities have the power to take land for public purposes related to their charter. The State, through NRW, is the Constructing Authority for various government departments (e.g. Department of Education and the Environmental Protection Agency) which are not themselves Constructing Authorities.

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Methods of acquisition

The State may acquire land:

(a) by agreement
If agreement can be reached on compensation to be paid, land can be purchased as soon as the necessary transfer documents have been executed. Alternatively, the acquisition could proceed by way of an Agreement pursuant to Section 15 of the Acquisition of Land Act 1967. This leads to the issue of a gazette notice published in the Government Gazette, thereby passing ownership to the Constructing Authority.

(b) compulsorily
Resumptions will be made under the various pieces of legislation, subject to the provisions of the Acquisition of Land Act 1967. The procedure is as follows:

A Notice of Intention to Resume showing substantially the location and area of the land required is forwarded to the landholder (and mortgagee, etc.). This specifies a date (not less than 30 days later) by which the landholder may lodge an objection, in writing, to the resumption of the land.

The Notice will also specify a time and place where landholders can appear and be heard in support of any objection. Following this and after considering all points of the objection, a decision to discontinue, amend, or proceed without change will be made by the issue of a gazette notice, depending on the circumstances. A copy of this notice will be forwarded to all parties. At the date of gazettal, ownership of the land will vest in the State (or other relevant Constructing Authority).

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The gazette notice

A decision by the Constructing Authority to proceed either by acquiring the land by agreement or compulsorily can culminate in the publication of a gazette notice. The issue of such a notice must first be considered by the Minister and then approved by the Governor-in-Council.

Compensation

From the date of the land acquisition, (i.e. the date of publication of the gazette notice), all interests in the land (e.g. title, easement) are converted into a right to claim compensation. (In some cases, this may have already been agreed upon between the parties.) Such compensation is assessed according to the value of each interest at the date of the acquisition.

The claimant has the right, in so far as money can allow, to be put in the same position as if the land had not been taken.

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Common questions

What if I don't agree to a compulsory taking?

After receiving a Notice of Intention to Resume, the recipient (interest holder) may object to the acquisition, setting out their grounds in writing. However, these grounds cannot relate to the level of the compensation. That person will have 30 days in which to object and may request a hearing by the Constructing Authority in support of their objection and may appear in person to explain more fully the grounds of the objection.

After considering the objections, the Constructing Authority may:

• amend the Notice of Intention to Resume
• discontinue the action
• dismiss the objections.

Can I appeal against the decision of the Constructing Authority?

There is no right of appeal—the final decision for resumption is made by the Governor-in-Council.

Can the Constructing Authority discontinue the acquisition once the Gazette Notice has issued?

The Constructing Authority may only seek authority to revoke a resuming gazette notice prior to the determination of compensation by the Land Court or earlier payment of any compensation, and only with the consent in writing of the dispossessed landholder.

On doing so, the gazette notice becomes completely void and the land is returned to the former landholder (subject to all former encumbrances and obligations) as if the gazette notice had never been made. Any damage sustained in the process may be converted into a claim against the Constructing Authority.

What are my rights to compensation if the land is acquired?

Any person with an estate or interest in the land acquired can may lodge a claim for compensation for the acquisition of the land or interests in it with the Constructing Authority.

How is compensation for acquired land assessed?

The Constructing Authority engages a registered valuer who assesses compensation based on the value of the land and improvements, any severance of the land from the other land owned by the claimant, and any injurious affection caused to other land held by the claimant. The Constructing Authority will then seek to negotiate with the claimant.

Can I obtain professional advice?

It is the prerogative of the claimant to obtain professional advice (solicitor/valuer or other relevant experts) in the preparation of a claim for compensation. Reasonable costs of these services will usually be reimbursed by the Constructing Authority. However, minor acquisition matters may not warrant significant professional advice.

What improvements form part of the acquisition?

Fixed improvements form part of the acquisition and are taken by the gazette notice unless prior arrangements are made with the Constructing Authority. Furniture and chattels do not form part of the acquisition.

The Constructing Authority may give the landholder the first right of refusal to purchase unrequired improvements (from removal or demolition).

When will I be required to vacate?

Legally the Constructing Authority can take possession of the land at any time following publication of the gazette notice.

A dispossessed landholder may, where practicable, be allowed to continue to remain in occupation and to continue to use the land for a stipulated period of time following the acquisition, subject to the landholder agreeing to the terms and conditions of occupancy.

If only part of my land is taken, who pays the cost to rectify title/lease?

The Constructing Authority normally arranges issue of a corrected title or lease. If it does not do so, any costs relating to this may be claimed as part of the overall claim for compensation.

Who pays my costs to re-establish?

For owner-occupied property, it is usual to allow reasonable removal expenses and reasonable costs associated with the purchase of a similar replacement property, for example, legal fees and stamp duty. However, these costs must be in proportion to the property acquired. An owner who choses to upgrade and buy a more expensive property will not receive a corresponding increase in allowable costs. However, allowance for costs of re-establishment usually do not extend to replacement of an investment property.

Who pays costs if I challenge the amount of compensation in the Land Court or the Land Appeal Court?

The property owner is usually responsible for their costs associated with the Court hearing. However, the Court has the discretion to award costs against the party, or against the state depending on the amount of compensation eventually determined.

When do I get paid?

The Constructing Authority can pay only after publication of the gazette notice acquiring the land and a claim is lodged.

Can I, as owner of the land taken, be advanced part of the compensation monies?

After lodging a written claim, a claimant can apply in writing to the Constructing Authority for an advance against compensation.

This can be any amount, but not more than that offered as compensation by the Constructing Authority, or the estimate of compensation as assessed by the Constructing Authority.

Provision of appropriate clearances for rates, land tax or rent are prerequisites to payment.

Who pays rates, land tax or rent outstanding at the date the land is acquired?

Any rates, land tax or rent outstanding as at the date the land is acquired are an obligation of the former owner/s and may be deducted from the compensation payable by the Constructing Authority.

What happens if agreement cannot be reached over the amount of compensation payable?

The Constructing Authority or the claimant may refer the matter to the Land Court for hearing and determination.

Can the Constructing Authority enter my land before payment of compensation or before publication of the Gazette Notice?

Before the acquisition process begins, the Constructing Authority or any persons authorised by it can enter any land for the purposes of inspection, valuation, survey or taking levels, carrying out soil tests and other such activities. Where practicable, seven days notice in writing can be given to the occupier of the land. Compensation is payable for any damage caused in the exercise of such powers.

What if I refuse to vacate?

The Constructing Authority may arrange to take physical possession of the land with costs to be met by the person refusing to give up such possession.

Can I object to a resumption if I don't own or have an interest in the land affected?

There are no statutory rights for such an objection.

Can I claim compensation if I own land not taken for a project and if I feel my property is adversely affected by the establishment of that project?

The provisions of the Acquisition of Land Act 1967 or wider common law do not allow for such claims.

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Glossary of terms

Claimant is a person who has a right to claim compensation under the Acquisition of Land Act 1967 and whose interest in the land is taken under the Act.

Compulsory acquisition is the taking of the land (or easement) compulsorily by a Constructing Authority pursuant to the Acquisition of Land Act 1967.

A Constructing Authority is a body authorised by the provisions of the Acquisition of Land Act 1967 or other act  to acquire land for public purposes either by agreement or compulsorily. Such a body can either be the State, a local government or a board or corporation constituted under state legislation, if so authorised (e.g. Energex).

Disturbance can be identified as 'out-of-pocket' expenses incurred in the preparation and lodgement of a claim or on other matters directly related to the acquisition (e.g. legal and valuation expenses necessary to prepare a claim) and can extend to relocation of owner occupiers in certain circumstances.

The gazette notice date is the effective date of acquisition, and is the date at which any compensation is to be assessed.

A gazette resumption notice is the official notification of the Governor-in-Council to the taking of the land.

Injurious affection attributes a loss in value of the remaining area of property as a result of the use to which the acquired land is to be put (e.g. where part of a property is taken for use as a sewerage treatment plant, the resultant value of the balance area is likely to be lessened).

Conversely, the Act provides for the application of any 'enhancement' in the value or interest of the remaining area of the property by the carrying out of the public purpose for which the land was acquired. For instance, a new road may provide improved access to a previously isolated property.

A Notice of Intention to Resume is the formal notification by a constructing authority that a parcel of land is required for a public purpose and it is proposed to acquire that parcel for that purpose.

Severance can be described as the physical separation of parts of a property/properties (which can include an aggregation) by the acquisition of, for example, a road corridor, or, by the taking of part of the aggregation (or lot), cutting off access to a service such as a water main.

Taking of land under the Acquisition of Land Act 1967, refers to the 'taking' of the land which applies to the acquiring of land (or easement) either by agreement or compulsorily.

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More information

For more information about acquisitions of land, contact:

Acquisitions Unit, Property Services
Department of Natural Resources and Water
Locked Bag 40
Coorparoo DC Qld 4151
Australia