Compulsory Acquisition: The assessment of compensation under the Acquisition of Land Act 1967 (Qld)

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.

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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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