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Compulsory Acquisition: The assessment of compensation under the Acquisition of Land Act 1967 (Qld) Print E-mail

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Grant Allan presented the following paper at the Advanced Property Legalwise Seminar on 7 March 2013. Part 1 provides an overview of the relevant procedural and substantive provisions and Part 2 considers the Pointe Gourde principle.  Due to the substantial length of the paper, the introductions to each Part have been reproduced below with links to the full document.

“The property of subjects is under the eminent domain of the State, so that the State, or he who acts for it, may use and even alienate and destroy such property, not only in cases of extreme necessity, in which even private persons have a right over the property of others, but for ends of public utility, to which ends those who founded our society must be supposed to have intended that private ends should give way.  But it is to be observed that when this is done, the State is bound to make good the loss to those who lose their property, and to this public purpose, he who has suffered the loss must if needs be contribute.”

Hugo Grotius, De Jure Belli et Pacis, 1624

“So great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community.  If a new road, for instance, were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, to do this without consent of the owner of the land.  In vain may it be urged, that the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of the common good, and to decide whether it be expedient, or no.  Besides, the public good is in nothing more essentially interested, than in the protection of every individual’s private rights, as modelled by the municipal law.  In this, and similar cases the legislature alone can, and indeed frequently does, interpose, and compel the individual to acquiesce.  But how does it interpose and compel? Not by absolutely stripping the subject of his property in an arbitrary manner; but by giving him a full indemnification and equivalent for the injury thereby sustained.  The public is now considered as an individual, treating with an individual for an exchange.  All that the legislature does is to oblige the owner to alienate his possessions for a reasonable price; and even this is an exertion of power, which the legislature indulges with caution, and which nothing but the legislature can perform.”

William Blackstone, Commentaries on the Laws of England 1 (1765) 139

PART 1 – ACQUISITION OF LAND ACT 1967: PROCEDURAL AND SUBSTANTIVE PROVISIONS

Preliminary

In Queensland, the statute which prescribes the law in relation to the acquisition of land for public works and public purposes is the Acquisition of Land Act 1967 (“the Act”).

The Act is concerned with the procedures by which land may be taken and the assessment of compensation subsequent to its taking.

“Land” is defined in s 2 of the Act to mean land, or any estate or interest in land, that is held in fee simple, including fee simple in trust under the Land Act 1994, but does not include a freeholding lease under that Act.

The principal focus of Part 1 of this paper is the substantive provisions of the Act: “Part 4 – Compensation (ss 18 to 35)”, specifically s 20 of the Act. The machinery and procedural provisions which govern the process by which land is taken under the Act and the manner in which a claim for compensation is lodged are also considered.

Unlike many statutes in Queensland, the Act has not been substantially amended since its commencement on 23 March 1968.  A number of important amendments were made to the Act on 23 February 2009 (the more relevant amendments are referred to subsequently in this paper) upon the commencement of the Acquisition of Land and Other Legislation Amendment Act 2009 (No.5).  For those who have an interest in such matters, I have briefly outlined hereunder the origins of the Act.

Click here to download the full document

PART 2 – THE POINTE GOURDE PRINCIPLE: AN ASPECT OF THE “VALUE TO THE OWNER” UNDER  s 20 OF THE ACT

The Pointe Gourde principle

The Pointe Gourde principle warrants specific consideration in any paper on compulsory acquisition law in Queensland. The principle itself is capable of being readily understood. However, as many cases decided in the highest courts in Australia and the United Kingdom have shown, the principle is notoriously difficult to apply particularly in respect of identifying the scope or extent of the Scheme of Resumption.

Briefly stated, the effect of the Pointe Gourde principle is that any increase (or decrease) in the value of land entirely due to the scheme underlying the acquisition is to be ignored in assessing the compensation payable upon the acquisition of the land. However, whether the principle applies in a particular case, clearly depends on the factual circumstances involved.

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Click here to download the full document

 

 



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