Land Acquisition Act 1993 (Tas)

Land Acquisition Act 1993 An Act to make provision for the acquisition of land by the Crown, public and local authorities and promoters, to authorize the acquisition of land for undertakings of a public nature, to provide for matters incidental to, and consequential on, that acquisition, and to repeal the Lands Clauses Act 1857, the Lands Resumption Act 1957 and the Public Authorities' Land Acquisition Act 1949 [Royal Assent 3 June 1993] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Land Acquisition Act 1993 . 2. Commencement This Act commences on a day to be proclaimed. 3. Interpretation (1) In this Act, unless the contrary intention appears – acquire means purchase or take; acquiring authority or authority means the Crown, a public authority, a local authority or a promoter; arbitrator means a Special Arbitrator or an arbitral tribunal under the Commercial Arbitration Act 2011 , as the case requires; authorized purpose, in relation to the acquisition of land, means a purpose for which the land may be acquired by an acquiring authority; authorized securities means securities in which trustees are authorized to invest trust funds by section 5 of the Trustee Act 1898 ; claimant means a person who claims an entitlement to compensation under this Act; clerk, in relation to an acquiring authority, means – (a) a general manager within the meaning of the Local Government Act 1993 ; (b) (c) the secretary or similar officer of a public authority; or (d) a promoter; or (e) the secretary or similar officer of a promoter; Commission has the same meaning as in the Tasmanian Planning Commission Act 1997 ; convey includes surrender, release, transfer, assign and otherwise assure; Court means the Supreme Court of Tasmania; the Crown includes the Governor and a Minister of the Crown when they are authorized as provided in section 4 ; encumbrance means a charge or encumbrance on land, other than a mortgage; estate, in relation to land, includes any estate, interest, easement, right, title, claim, demand, charge, lien or encumbrance in, over, to or in respect of that land; former owner, in relation to land that has been acquired, means a person who – (a) was an owner of that land when the first notice to treat was served; or (b) became an owner of that land subsequent to that service but before the notice of acquisition in respect of that land was gazetted; Government Department means a Government department established under the State Service Act 2000 or by any other enactment as a Government department within the meaning of that Act; judge means a judge of the Supreme Court; land includes messuages, tenements, hereditaments, buildings attached to the land and any estate in the land; lease includes an agreement for a lease; legal practitioner means an Australian legal practitioner; local authority means the council exercising jurisdiction in the locality to which the context relates; major infrastructure project has the same meaning as in the Major Infrastructure Development Approvals Act 1999 ; notice of acquisition means a notice of acquisition gazetted under section 18 or 70 ; notice of withdrawal means a notice of withdrawal under section 12 ; notice to treat means a notice to treat under section 11 ; owner, in relation to land, means a person who, whether jointly or severally, is seised or possessed of, or entitled to, an estate in the land at any time on and from the day on which a notice to treat in respect of the land is first served on a person until (but not including) the day on which a notice of acquisition in respect of the land is gazetted, and includes a person who is enabled under this Act, any other Act or any instrument to sell or convey the land to an acquiring authority; prescribed rate, in relation to interest on compensation payable by an acquiring authority, means the rate that, on any day, is advised by the Commonwealth as being the weighted average issue yield for the longest term stock in the most recent Treasury bond tender; proclaimed day means the day fixed by proclamation under section 2 ; promoter means a person, other than a public or local authority, empowered by a special Act to execute the works or undertaking authorized by that Act; public authority means a body or authority, whether incorporated or not, established or constituted by or under an Act or under the Royal Prerogative, being a body or authority which, or of which the governing authority, wholly or partly comprises persons appointed by the Governor, a Minister of the Crown or another public authority, but does not include a Government Department or a local authority; public purpose means a purpose related to the administration of the Government of this State; purchase means purchase by agreement under this Act; reconvey means convey land taken to its former owner under section 23 (1) ; regulations means regulations made and in force under this Act; Rules of Court means the Rules of Court made under the Supreme Court Civil Procedure Act 1932 and the Civil Process Act 1985 ; Secretary means the Secretary of the Department; special Act means an Act authorizing the acquisition of land for the purpose of an acquiring authority other than the Crown; Special Arbitrator means a Special Arbitrator appointed under section 6 ; subject land means land acquired or being acquired under this Act; take, in relation to land, means take by compulsory process under this Act. (2) In this Act, a reference to the "acquiring authority" or "authority" is a reference to the acquiring authority concerned with or affected by the matter to which the context relates. (3) In this Act, a reference to the relevant Supreme Court Rules is a reference to the Supreme Court Rules 2000 made under the Supreme Court Civil Procedure Act 1932 , as those rules are amended from time to time, and to any rules made in substitution for those rules. 4. Application of Act to acquisition of land by or on behalf of the Crown (1) Land is to be acquired as provided by this Act where the Crown, the Governor or a Minister of the Crown is authorized – (a) by an Act to undertake, construct or provide a public work for which the land is required; or (b) by this Act or any other Act to purchase, acquire or take the land for any purpose. (2) Except to the extent that the provisions of this Act are expressly varied or made inapplicable by an Act referred to in subsection (1) , other than this Act, those provisions – (a) apply to the work or purpose authorized by that Act as far as they are applicable to that work or purpose; and (b) form part of that Act, together with any other Act that is to be incorporated with that Act; and (c) are to be read as one Act with that Act and any other Act so incorporated. (3) The Governor may, by order, authorize a Minister of the Crown to acquire land for a public purpose or public work if there is no statutory authorization to acquire the land as mentioned in subsection (1) . (4) An authorization under subsection (3) is an authorization to the Minister under this Act for the purposes of subsection (1) . (5) An order made under subsection (3) is not a statutory rule within the meaning of the Rules Publication Act 1953 and section 38A (2) (a) of the Acts Interpretation Act 1931 does not apply in relation to it. (6) Except as provided in section 74 , this Act does not affect the right of the Crown to resume land by virtue of a right reserved in the grant of the land, but land that may be so resumed may be acquired under this Act. 5. Application of Act to acquisition of land by an acquiring authority other than the Crown (1) Where an acquiring authority (other than the Crown) is authorized by a special Act to acquire any land required for the purposes of the authority, that land – (a) if it is Crown land, is to be purchased as provided by the Crown Lands Act 1976 ; or (b) if it is not Crown land, is to be acquired as provided by this Act. (2) Except to the extent that the provisions of this Act are expressly varied or made inapplicable by a special Act, those provisions – (a) apply to the purpose authorized by that special Act as far as they are applicable to that purpose; and (b) form part of the special Act, together with any other Act that is to be incorporated with that special Act; and (c) are to be read as one Act with the special Act and any other Act so incorporated. 5A. Certain land may not be acquired Aboriginal land, within the meaning of the Aboriginal Lands Act 1995 , may not be acquired under this Act. 6. Special Arbitrators (1) The Governor may appoint a person as a Special Arbitrator to act as an arbitrator under this Act. (2) A person appointed under subsection (1) is to be a person who, in the opinion of the Governor, has sufficient experience in the assessment of compensation in relation to the acquisition of land to act as an arbitrator. (3) Subject to this section, a Special Arbitrator holds and vacates office subject to such terms and conditions as are specified in the instrument of appointment. (4) A Special Arbitrator may resign office by notice in writing addressed to the Minister. (5) A Special Arbitrator holds office for such term, not exceeding 4 years, as may be specified in the instrument of appointment. (6) . . . . . . . . (7) A Special Arbitrator is to be paid such remuneration and allowances as the Governor determines. 7. Minister to act for the Crown in relation to acquisition of land by the Crown Where this Act authorizes or requires – (a) an agreement to be entered into; or (b) a notice or other document to be served or given; or (c) any other act or thing to be done, including the exercise of a discretion – for the purposes of, or arising out of, the acquisition of land by the Crown, the Minister is, except as otherwise provided by this Act, to enter into the agreement, serve or give the notice or other document, or do that other act or thing on behalf of the Crown. PART 1A - Acquisition of Land by Crown for Private Sector Infrastructure Project 7A. Interpretation: Part 1A For the purposes of this Part – development has the same meaning as in the Land Use Planning and Approvals Act 1993 ; infrastructure means any structure, facility or work arising in connection with the provision to the public or a section of the public of services relating to – (a) water; (b) energy; (c) communications; (d) transport; (e) education; (f) health; (g) emergency response; (h) sewerage; (i) any other service which may be prescribed; permit has the same meaning as in the Land Use Planning and Approvals Act 1993 ; planning authority has the same meaning as in the Land Use Planning and Approvals Act 1993 ; proponent means the person who proposes to construct or operate infrastructure on land acquired pursuant to an order made under this Part, and does not include the Crown; proposed infrastructure, in relation to an order made under section 7B(2) , means the infrastructure which it is proposed to develop on land to which the order relates; Register has the same meaning as in the Land Titles Act 1980 ; Registry of Deeds has the same meaning as in the Registration of Deeds Act 1935 ; sale, in relation to land, means the disposal of land by sale, lease, exchange for proper consideration or any other means; special planning order has the same meaning as in the Land Use Planning and Approvals Act 1993 ; use has the same meaning as in the Land Use Planning and Approvals Act 1993 . 7AB. Application of Part 1A This Part does not apply to the acquisition of land for a major infrastructure project. 7B. Order authorising acquisition of land for purposes of infrastructure to be constructed or operated by private sector (1) The Minister may recommend to the Governor the making of an order authorising the Minister to acquire land for the purposes of infrastructure to be constructed or operated by a person other than the Crown. (2) The Governor may make an order in accordance with a recommendation made under subsection (1) . (3) An order under subsection (2) is to be published in the Gazette. (4) The Minister must cause an order under subsection (2) to be laid before each House of Parliament within the first 10 sitting days of the House after it is so published. (5) An order under subsection (2) is of no effect until it has been approved by both Houses of Parliament. (6) For the purposes of subsection (5) , a House of Parliament is taken to have approved an order under subsection (2) if a copy of it has been laid on the table of that House and – (a) it is approved by that House; or (b) at the expiration of 15 sitting days after it was laid on the table of that House, no notice has been given of a motion to disallow it or, if such notice has been given, the notice has been withdrawn or negatived; or (c) if any notice of a motion to disallow it is given during that period of 15 sitting days, the notice is, after the expiration of that period, withdrawn or negatived. (7) As soon as practicable after an order under subsection (2) has taken effect, the Minister must give written notice of the taking effect of the order to – (a) each planning authority with jurisdiction over the land to which the order relates; and (b) each planning authority on which obligations are imposed by the order; and (c) each instrumentality or agency of the Crown on which obligations are imposed by the order; and (d) each owner of land which it is proposed to acquire pursuant to the order. 7C. Conditions precedent to Ministerial recommendation (1) The Minister may not make a recommendation under section 7B(1) that an order be made which authorises the acquisition of land for the purposes of infrastructure to be constructed or operated by a person other than the Crown unless – (a) the Minister has received a report from the proponent which provides a comprehensive description of the proposed infrastructure and contains such information in relation to the proposed infrastructure as may be prescribed; and (b) that report – (i) is accompanied by the written consent of the owner of the land to the making of the proposed order; or (ii) states that it has not been possible to obtain such consent and explains why this has not been possible; and (c) the Minister has given the owner of the land at least 14 days' notice of the Minister's intention to make the recommendation; and (d) the Minister is satisfied that it is in the public interest for the proposed order to be made. (2) In determining whether it is in the public interest for the proposed order to be made, the Minister must have regard to such matters as may be prescribed. 7D. Content of order (1) An order made by the Governor under section 7B(2) is to – (a) identify the proponent; and (b) authorise the Minister to acquire specified land under this Act for the purposes of proposed infrastructure; and (c) describe the proposed infrastructure, specifying – (i) the nature of each use or development which is to occur in connection with the proposed infrastructure on the land which is to be acquired pursuant to the order; and (ii) the parcel of land upon which each such use or development is to occur. (2) An order made by the Governor under section 7B(2) may – (a) declare that compliance with section 52(1) of the Land Use Planning and Approvals Act 1993 is not required; and (b) require an instrumentality or agency of the Crown or planning authority which is specified in the order to provide the proponent or any other person with such guidelines or other information as the order may specify by such date as the order may specify; and (c) require the proponent identified in the order to lodge with the Crown a financial assurance in the form of a bond (supported by a guarantee or other security) or specified pecuniary sum, in an amount specified in the order and by a specified date, to be forfeited on failure to comply with terms or conditions specified in the order; and (d) require the proponent identified in the order to pay to the Crown an amount specified in the order by a specified date, to cover costs and expenses which may be incurred by the Crown or any person in connection with the acquisition of land pursuant to the order; and (e) require compliance by the proponent or any other person with terms or conditions set out in the order; and (f) authorise the sale by the Crown to the proponent of any specified land the acquisition of which is authorised by the order. 7E. Effect of order (1) An authorisation given to the Minister by an order under section 7B(2) is an authorisation for the purposes of section 4(1) . (2) Land may not be acquired pursuant to an order under section 7B(2) until a permit in connection with the proposed infrastructure has been granted in respect of that land. (3) If an order under section 7B(2) declares that compliance with section 52(1) of the Land Use Planning and Approvals Act 1993 is not required – (a) section 52(1) of that Act and any provisions of the relevant planning scheme or special planning order which require the giving of notice to the owner of land in respect of which a permit is sought do not apply; and (b) notice of the making of an application for a permit in connection with the development of the proposed infrastructure on the land to which the order relates is, at least 14 days before the making of the application, to be served by the applicant on the owner of the land in respect of which the permit is required. (4) A notice for the purpose of subsection (3)(b) is to contain such information as may be prescribed. (5) If an order under section 7B(2) declares that compliance with section 52(1) of the Land Use Planning and Approvals Act 1993 is not required, a planning authority which receives an application for a permit in connection with the proposed infrastructure must not accept that application unless it is satisfied that the requirements of subsections (3) and (4) have been met. (5A) If an order under section 7B(2) declares that compliance with section 52(1) of the Land Use Planning and Approvals Act 1993 is not required, a request by the proponent for the amendment of a permit granted in connection with the proposed infrastructure may be made under section 56(1) of the Land Use Planning and Approvals Act 1993 without the consent of the owner of the land to which the permit relates. (6) If an order under section 7B(2) requires any instrumentality or agency of the Crown or planning authority which is specified in the order to provide the proponent or another person by a specified date with such guidelines or other information as the order may specify, the instrumentality, agency or authority to which the requirement is directed must comply with the requirement. (7) If an order under section 7B(2) requires the proponent identified in the order to pay to the Crown a financial assurance in the form of a bond (supported by a guarantee or other security) or specified pecuniary sum to be forfeited on failure to comply with terms or conditions specified in the order, the bond or sum is forfeited to the Crown on – (a) failure to comply with any of those terms or conditions; or (b) failure to apply to a planning authority for a permit for each use or development specified in the order within a period of 12 months from the date of the order or such further period, expiring not more than 24 months from the date of the order, as the Minister may allow; or (c) the lapse under section 53(5) of the Land Use Planning and Approvals Act 1993 of any permit which is granted for a use or development specified in the order. (8) If an order under section 7B(2) requires the proponent identified in the order to pay to the Crown an amount specified in the order by a specified date to cover costs and expenses which may be incurred by the Crown or any person in connection with the acquisition of land pursuant to the order, the amount is a debt due to the Crown from the proponent identified in the order and may be recovered by the Crown from the proponent in any court of competent jurisdiction. 7F. Sale of land acquired pursuant to order (1) Land acquired by the Crown pursuant to an order under section 7B(2) may not be sold unless – (a) the sale of that land has been authorised under section 7D(2)(f) or notice of the proposed sale has been published and approved by each House of Parliament in accordance with section 64 of the Crown Lands Act 1976 ; and (b) a permit has been granted in connection with the development of the proposed infrastructure in respect of the land and – (i) the period specified under section 61 of the Land Use Planning and Approvals Act 1993 for appealing the decision of the planning authority to grant the permit has expired and no appeal has been lodged; or (ii) where such an appeal has been lodged, the appeal has been determined. (2) Section 73(3)(a) does not apply to the sale of land acquired pursuant to an order made under section 7B(2) provided that development in connection with the proposed infrastructure occurs on the land. 7G. Use and development of land acquired pursuant to order (1) Unless written approval is given by the Minister, land which is acquired pursuant to an order under section 7B(2) may only be used or developed in connection with the proposed infrastructure. (2) Unless written approval is given by the Minister, a planning authority may not grant a permit for a use or development on land which is acquired pursuant to an order under section 7B(2) unless that use or development is in connection with the proposed infrastructure. (3) Approval given by the Minister for the purposes of subsection (1) or (2) is to be laid before each House of Parliament within the first 10 sitting days of the House after the approval is given. (4) Subsections (1) and (2) apply whether or not – (a) the Crown is the owner of the land; or (b) the order under section 7B(2) has been revoked. (5) Subsections (1) and (2) cease to apply to land 10 years after the making of the order under section 7B(2) which authorised the acquisition of the land. (6) If the Crown sells land acquired pursuant to section 7B(2) and the use or development of the land is restricted under this section, the Crown must – (a) if the land is under the Land Titles Act 1980 , give notice of the restriction to the Recorder of Titles; and (b) if the land is not under the Land Titles Act 1980 , lodge a notice of the restriction in the Registry of Deeds. (7) A notice for the purposes of subsection (6) is to state when the restriction is to cease. (8) The Recorder of Titles must register a notice under subsection (6)(a) by making an appropriate entry in the Register. 7H. Injurious affection (1) If land to which an order under section 7B(2) relates is injuriously affected by the making of the order, the owner of the land or its purchaser, in the case of land being purchased under a Crown lands contract, is entitled to compensation from the proponent identified in the order for the injurious affection to that land and to other land belonging to that person. (2) A claim by an owner of land for compensation under subsection (1) is to be made within a period of 12 months of the grant of the permit. (3) If not agreed on, a claim for compensation under subsection (1) is to be determined in the same manner as a disputed claim for compensation under this Act as if the proponent identified in the order under section 7B(2) were an acquiring authority within the meaning of this Act. (4) Compensation is not payable under this section in respect of injurious affection for which compensation is otherwise payable under this Act. 7I. Amendment of order (1) The Minister may recommend to the Governor the making of an order which amends an order made under section 7B(2) . (2) Before making a recommendation to the Governor under subsection (1) , the Minister must determine whether the proposed amending order will alter the order made by the Governor under section 7B(2) to such an extent or to such effect that the amending order should be submitted to Parliament for its approval. (3) The Governor may make an order in accordance with a recommendation made under subsection (1) . (4) An order under subsection (3) is to be published in the Gazette. (5) An order under subsection (3) is to state that the Minister has determined – (a) that the order will not alter the order made by the Governor under section 7B(2) to such an extent or to such effect that the amending order should be submitted to Parliament for its approval; or (b) that the order will alter the order made by the Governor under section 7B(2) to such an extent or to such effect that the amending order should be submitted to Parliament for its approval. (6) The Minister must cause an order under subsection (3) to be laid before each House of Parliament within the first 10 sitting days of the House after it is published in the Gazette. (7) An order which includes a statement under subsection (5)(b) is of no effect until it has been approved by both Houses of Parliament. (8) For the purpose of subsection (7) , a House of Parliament is taken to have approved an order under subsection (3) if a copy of it has been laid on the table of that House and – (a) it is approved by that House; or (b) at the expiration of 15 sitting days after it was laid on the table of that House, no notice has been given of a motion to disallow it or, if such notice has been given, the notice has been withdrawn or negatived; or (c) if any notice of a motion to disallow it is given during that period of 15 sitting days, the notice is, after the expiration of that period, withdrawn or negatived. 7J. Revocation of order (1) The Minister may recommend to the Governor the making of an order which revokes an order made under section 7B(2) on the ground that – (a) there has been a breach or failure to comply with a requirement, term or condition of the order; or (b) there has been a failure to apply to a planning authority for a permit for each use or development specified in the order within a period of 12 months from the date of the order or such further period as the Minister may have allowed in accordance with section 7E(7)(b) ; or (c) a permit granted for a use or development specified in the order has lapsed pursuant to section 53(5) of the Land Use Planning and Approvals Act 1993 . (2) The Governor may make an order in accordance with a recommendation made under subsection (1) . (3) An order under subsection (2) is to be published in the Gazette. (4) The Minister must cause an order under subsection (2) to be laid before each House of Parliament within the first 10 sitting days of the House after it is so published. (5) No action may be brought against the Crown or any servant or agent of the Crown for loss sustained by reason of the making of an order under subsection (2) . (6) If an order is made under subsection (2) – (a) any permit granted since the making of the order under section 7B(2) for a use or development specified in that order ceases to have effect; and (b) section 73(3)(a) applies to any land acquired by the Crown pursuant to the order under section 7B(2) . PART 2 - Acquisition of Land Division 1 - Methods of acquisition 8. Methods of acquisition Land may be acquired under this Act – (a) by agreement in accordance with Division 2 ; or (b) by compulsory process in accordance with Division 3 . Division 2 - Purchase by agreement 9. Power to purchase by agreement (1) An acquiring authority may agree with an owner of land for the purchase of that land. (2) An owner of land being purchased by an acquiring authority under this section may convey the land without being required to obtain the approval or permission of any local authority or planning authority. (3) The consideration for a purchase under this section is to be the payment of money or any other consideration agreed on between the owner of the land and the acquiring authority. 10. Purchase of surplus land An acquiring authority may enter into an agreement under section 9 for the purchase of land notwithstanding that the land that is the subject of the agreement contains an area in excess of that required for the authorized purpose for which the land is being purchased. Division 3 - Taking by compulsory process 11. Notice to treat (1) An acquiring authority must – (a) take all reasonable steps to ascertain all owners of any land the authority proposes to take and the addresses of those owners; and (b) cause a notice to treat to be served on every owner so ascertained whose address has also been ascertained. (2) A notice to treat is to – (a) be in a form approved by the Secretary; and (b) identify the land to be taken; and (c) contain particulars of the authorized purpose for which that land is being taken; and (d) contain such other particulars as may be prescribed; and (e) specify that the acquiring authority is willing to negotiate for the purchase of the land but, if agreement for the purchase of the land is not reached within 30 days after the service of the notice, the authority may take the land compulsorily; and (f) specify that the owner of the land is entitled to compensation determined in accordance with this Act if the land is taken compulsorily; and (g) specify that the owner is required by this Act to supply the authority with particulars of – (i) the owner's estate in the land; and (ii) all other estates in the land of which the owner has notice; and (h) specify that the owner is prohibited by this Act from carrying out works on, or doing any other act or thing in, or in relation to, the land that will materially vary the nature or value of the land unless the authority has consented to those works or that act or thing. (3) Land is to be identified in a notice to treat by a plan of survey or by any other means that will enable t