Land Acquisition (Just Terms Compensation) Act 1991 (NSW)

Land Acquisition (Just Terms Compensation) Act 1991 No 22 An Act relating to the acquisition of land on just terms by authorities of the State. Part 1 Preliminary 1 Name of Act This Act may be cited as the Land Acquisition (Just Terms Compensation) Act 1991. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Objects of Act (1) The objects of this Act are— (a) to guarantee that, when land affected by a proposal for acquisition by an authority of the State is eventually acquired, the amount of compensation will be not less than the market value of the land (unaffected by the proposal) at the date of acquisition, and (b) to ensure compensation on just terms for the owners of land that is acquired by an authority of the State when the land is not available for public sale, and (c) to establish new procedures for the compulsory acquisition of land by authorities of the State to simplify and expedite the acquisition process, and (d) to require an authority of the State to acquire land designated for acquisition for a public purpose where hardship is demonstrated, and (e) to encourage the acquisition of land by agreement instead of compulsory process. (2) Nothing in this section gives rise to, or can be taken into account in, any civil cause of action. 4 Definitions (1) In this Act— acquisition of land means an acquisition of land or of any interest in land. acquisition notice means a notice under section 19 which declares that land has been acquired by compulsory process. authority of the State means— (a) a Minister of the Crown, or (b) a statutory body representing the Crown, or (c) a council, a county council or a joint organisation within the meaning of the Local Government Act 1993, or (d) any other authority authorised to acquire land by compulsory process. Commonwealth Native Title Act or NTA means the Native Title Act 1993 of the Commonwealth. compensation notice means a notice under section 42 which notifies the former owners of land of a compulsory acquisition, their entitlement to compensation and the amount of compensation offered. compulsory acquisition of land means the acquisition of the land by compulsory process under this Act. Crown land means— (a) Crown land within the meaning of the Crown Land Management Act 2016, or (b) any other land of the Crown or of an authority of the State. disadvantage resulting from relocation is defined in section 60. interest in land means— (a) a legal or equitable estate or interest in the land, or (b) an easement, right, charge, power or privilege over, or in connection with, the land. land includes any interest in land. loss attributable to disturbance of land is defined in section 59. loss attributable to severance of land is defined in section 58. market value of land is defined in section 56. native title and native title rights and interests has the same meaning as in the Commonwealth Native Title Act. owner of land means any person who has an interest in the land. proposed acquisition notice means a notice under section 11 of intention to acquire land by compulsory process. public purpose means any purpose for which land may by law be acquired by compulsory process under this Act. registered interest in land means an interest in the land— (a) recorded in the Register kept under the Real Property Act 1900, or (b) recorded in the General Register of Deeds kept under the Conveyancing Act 1919, or (c) recorded in the National Native Title Register kept under the Commonwealth Native Title Act if the interest is an interest in relation to land that is the subject of an approved determination of native title (other than an approved determination that no native title exists). special value of land is defined in section 57. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) For the purposes of this Act, an authority is authorised to acquire land by compulsory process if— (a) the authority is authorised by law to acquire land by compulsory process under this Act, or (b) land is authorised by law to be acquired for the authority by resumption or appropriation under any provision of the Public Works and Procurement Act 1912 or the authority is declared by law to be a Constructing Authority in connection with any such resumption or appropriation. (3) In this Act, a reference to the Minister responsible for an authority of the State is— (a) if that authority is constituted by or under an Act—a reference to the Minister administering that Act, or (b) if that authority is a Minister—a reference to that Minister. (4) For the purposes of this Act, the owners of Crown land not vested in any other person include— (a) the person having the care and control of the land, or (b) if the land is not under the care and control of any person—the Minister administering the Crown Land Management Act 2016. (5) For the purposes of this Act, owner of land includes a holder of native title rights and interests in relation to land. Note— Approved determination of native title, referred to in paragraph (c) of the definition of registered interest in s 4 (1), is defined in s 253 NTA. 4A Notes in the text Notes included in this Act are explanatory notes and do not form part of this Act. 5 Acquisition of land to which Act applies (1) This Act applies to the acquisition of land (by agreement or compulsory process) by an authority of the State which is authorised to acquire the land by compulsory process. (2) This Act does not apply to any such acquisition if the land is available for public sale and the land is acquired by agreement. (3) Land is available for public sale if— (a) the land is advertised by the owner as being available for sale, or (b) the land is listed by the owner with a real estate agent as being available for sale, or (c) the land is otherwise held out by the owner as being available for sale. 6 Acquisition of land to which Act does not apply This Act does not apply to an acquisition of land if— (a) (Repealed) (b) the acquisition consists of the taking of a mortgage, charge or other similar security over an interest in land, or (c) the acquisition consists of an interest in land which is acquired otherwise than by agreement or compulsory process, or (d) the acquisition consists of the revocation of exclusive rights of burial that have been granted under an Act in relation to a public cemetery. 7 Act not to empower authority to acquire land (1) This Act does not empower an authority of the State to acquire land if it does not have the power (apart from this Act) to acquire the land. (2) The power of an authority of the State to acquire land under another Act is affected by sections 7A and 7B of this Act. Any such acquisition to which section 7A or 7B applies remains, for all purposes, an acquisition of land under and subject to that other Act. 7A Authority empowered to acquire native title (1) An authority of the State that is authorised by law to acquire land by compulsory process in accordance with this Act is authorised to acquire native title rights and interests in relation to the land in the same way that other interests in the land may be acquired. (2) For the purposes of any such acquisition of native title rights and interests, the authority of the State is, despite any provision of this or any other Act to the contrary, authorised to comply with any relevant procedure under the Commonwealth Native Title Act for a valid acquisition of those rights and interests. Note— Relevant procedures under the NTA include the following different procedures— (a) the right to negotiate procedure under Subdivision P of Division 3 of Part 2, (b) the procedure under section 24MD (6B), (c) the procedure under an indigenous land use agreement. Section 26 NTA makes provision with respect to the application of the right to negotiate procedure—see section 26 (1) (c) (iii) (A) NTA with respect to compulsory acquisitions that confer rights on a Government party. Section 24MD NTA sets out a number of requirements for extinguishment of native title by compulsory acquisition that passes the freehold test (including the need to acquire the whole or relevant part of all non-native title rights and interests—see subsection (2) (b)). 7B Authority empowered to acquire its own land An authority of the State that is authorised by law to acquire land by compulsory process in accordance with this Act may so acquire the land even if the land is vested in the authority itself. 8 Act to prevail over other Acts relating to acquisition of land This Act prevails, to the extent of any inconsistency, over the provisions of any other Act relating to the acquisition of land by an authority of the State. 9 Act binds Crown This Act binds the Crown, not only in right of New South Wales but also, so far as the legislative power of Parliament permits, in all its other capacities. 10 Statement of guaranteed acquisition at market value (1) When, on request by or on behalf of an owner or prospective purchaser of land, an authority of the State gives a person written notice to the effect that the land is affected by a proposal for acquisition by the authority, the notice must contain the following— (a) a statement that the Land Acquisition (Just Terms Compensation) Act 1991 guarantees that, if and when the land is acquired by (insert name of authority) under that Act, the amount of compensation will not be less than market value (assessed under that Act) unaffected by the proposal, (b) such other information as the regulations may require. (2) This section does not apply to a proposal to acquire an easement, or right to use land, under the surface for the construction and maintenance of works. (3) Nothing in this section or in a statement made in a notice pursuant to this section gives rise to, or can be taken into account in, any civil cause of action. 10A Minimum period of negotiation for acquisition by agreement before initiation of compulsory acquisition process (1) This section applies to land that is affected by a proposal for acquisition by an authority of the State, other than a proposal to acquire— (a) Crown land, or (b) an easement, or right to use land, under the surface for the construction or maintenance of works, or (c) a stratum under the surface for the construction of a tunnel. (2) The authority of the State is to make a genuine attempt to acquire the land by agreement for at least 6 months before giving a proposed acquisition notice. (3) The owner of the land and the authority of the State may agree to a shorter or longer period of negotiation for the acquisition of the land by agreement. (4) The Minister responsible for the authority of the State may approve a shorter period of negotiation, but only if the Minister is satisfied that the urgency of the matter or other circumstances of the case make it impracticable to have any longer period of negotiation. Any such approval requires the concurrence of the Minister administering this Act (being concurrence given for the particular approval or given generally for an approval of that kind). (5) This section does not prevent a continuation of negotiation after the giving of a proposed acquisition notice. (6) The authority of the State is not required to comply with this section if— (a) the owner of the land notifies the authority that the owner is not prepared to negotiate with the authority for the acquisition of the land by agreement, or (b) the owner of the land cannot be located after the making of reasonable inquiries. (7) Nothing in this section gives rise to, or can be taken into account in, any civil cause of action. Part 2 Acquisition of land by compulsory process Division 1 Pre-acquisition procedures 11 Notice of intention to acquire land by compulsory process (1) An authority of the State may not acquire land by compulsory process unless the authority has given the owners of the land written notice of its intention to do so. (2) The authority of the State is not prevented from acquiring the land by agreement after giving the proposed acquisition notice. 12 Owners to be given notice (1) A proposed acquisition notice need only be given to all the owners of the land who— (a) have a registered interest in the land, or (b) are in lawful occupation of the land, or (c) have, to the actual knowledge of the authority of the State, an interest in the land. (2) If the proposed acquisition notice relates only to a particular interest in land, the notice need only be given to all such owners of that interest. (3) If the proposed acquisition notice relates to an interest which does not exist (such as a proposed easement), the notice need only be given to all the owners of the land who— (a) have a registered interest in the land (other than a mortgage interest), or (b) are in lawful occupation of the land. (4) If the proposed acquisition notice relates to land under the Real Property Act 1900, the authority of the State must give a copy of the notice to any person who has lodged a caveat which is recorded in respect of the land in the Register kept under that Act. (5) If the proposed acquisition notice relates to land that is the subject of a registered native title claim under the Commonwealth Native Title Act, the authority of the State must give a copy of the notice to the registered native title claimant under that Act. Note— Under the NTA, the registered native title claimant is the person shown in the Register of Native Title Claims as the applicant for the claim. 13 Minimum period of notice (1) A proposed acquisition notice must be given at least 90 days before the land is compulsorily acquired. (2) A shorter period of notice may be given if— (a) the authority of the State and the owners of the land agree in writing to the shorter period, or (b) the Minister responsible for that authority approves of the shorter period, but only if that Minister is satisfied that the urgency of the matter or other circumstances of the case make it impracticable to give any longer period of notice. (3) The approval of a shorter period of notice under subsection (2) (b) requires the concurrence of the Minister administering this Act (being a concurrence given for the particular approval or given generally for an approval of that kind). 14 Compulsory acquisition to be completed as soon as practicable (1) As soon as practicable after the expiration of the minimum period of notice of a proposed compulsory acquisition, the authority of the State must— (a) acquire the land by compulsory process or by agreement, or (b) withdraw the proposed acquisition notice. (2) The proposed acquisition notice is taken to have been withdrawn if the authority of the State has not acquired the land or withdrawn the proposed acquisition notice— (a) except as provided by paragraph (b)—within 120 days after it gave that notice, or (b) within such longer period as that authority and the owner of the land have agreed to in writing. (3) If the proposed acquisition notice is withdrawn or taken to have been withdrawn, the authority of the State may not give a further proposed acquisition notice in respect of the land within 12 months after the date of withdrawal unless the Minister responsible for that authority is satisfied that in the circumstances of the case a further notice within that period is justified. 15 Particulars to be included in proposed acquisition notice A proposed acquisition notice given to an owner of land must— (a) be in the form prescribed by the regulations or (if no such form is prescribed) in the form approved by the Minister, and (b) specify the authority of the State proposing to acquire the land, and (c) contain a description sufficient to identify the land proposed to be acquired, and (d) specify the period within which the land will be compulsorily acquired, and (e) request any owner who wishes to claim compensation for the acquisition to lodge with the authority of the State a claim for compensation within the period specified in the notice (being not less than 60 days after the notice is given to the owner), and (f) be accompanied by the form for a claim for compensation under section 39. 16 Withdrawal or amendment of proposed acquisition notice (1) An authority of the State may, before the land is compulsorily acquired, withdraw a proposed acquisition notice by a further notice. (2) Part 4 deals with the compensation payable when a proposed acquisition notice is withdrawn. (3) An authority of the State may, by a further notice, amend a proposed acquisition notice for the purpose of correcting a clerical error or an obvious mistake in the notice. Any such amendment has effect from the date of the original notice unless otherwise specified in the further notice. (4) A further notice under this section is to be given in the same manner as the proposed acquisition notice concerned was given. 17 Registrar-General to be notified of proposed acquisition notice and withdrawal or amendment of such notice (1) An authority of the State must, as soon as practicable after giving a proposed acquisition notice (or after such a notice is withdrawn or amended), lodge with the Registrar-General notification of the proposed acquisition notice (or its withdrawal or amendment). (2) Any such notification must be in such form as the Registrar-General approves. (3) On receipt of the notification, the Registrar-General must make such recordings as the Registrar-General considers appropriate— (a) in the case of land under the Real Property Act 1900—in the Register kept under that Act, or (b) in the case of other land—in the General Register of Deeds or other relevant Register. 18 Valuer-General to be notified of proposed acquisition notice An authority of the State must, as soon as practicable after giving a proposed acquisition notice, notify the Valuer-General of the proposed acquisition notice. Division 2 Acquisition procedures 19 Compulsory acquisition by notice in Gazette (1) An authority of the State that is authorised to acquire land by compulsory process may, with the approval of the Governor, declare, by notice published in the Gazette, that any land described in the notice is acquired by compulsory process. (2) A copy of the acquisition notice is, if practicable, to be published— (a) in at least one newspaper circulating in the district in which the land is situated (whether published in print or on a website), or (b) on at least one website that, in the opinion of the authority, is appropriate to cause the notice to come to the attention of persons in the district in which the land concerned is situated. (3) An acquisition notice may relate to part only of the land described in the relevant proposed acquisition notice. 20 Effect of acquisition notice (1) On the date of publication in the Gazette of an acquisition notice, the land described in the notice is, by force of this Act— (a) vested in the authority of the State acquiring the land, and (b) freed and discharged from all estates, interests, trusts, restrictions, dedications, reservations, easements, rights, charges, rates and contracts in, over or in connection with the land. (1A) Subsection (1) is subject to any express provision of an Act that authorises the acquisition of land by compulsory process but preserves the operation of any trusts, restrictions, dedications, reservations, declarations, setting apart of or other matters relating to the land concerned. (2) If— (a) the acquisition notice excepted an easement from acquisition, and (b) immediately before the vesting, the benefit of a restriction as to user was annexed to the easement, then (unless otherwise specified in the acquisition notice) the restriction continues to have effect as if the acquisition had not taken place. Note— Examples of express provisions of Acts to which section 20 (1A) refers are section 17AB (4) (b) of the Fisheries and Oyster Farms Act 1935, section 15 (4C) (b) of the Forestry Act 1916, section 186 (3) of the Local Government Act 1993 and section 146 (2C) (b) of the National Parks and Wildlife Act 1974. Division 3 Owner-initiated acquisition in cases of hardship 21 Definition of "land designated for acquisition for a public purpose" (1) For the purposes of this Division, land is designated for acquisition by an authority of the State for a public purpose if— (a) an authority of the State has, in connection with an application for development consent or building approval, given the local authority or other person dealing with the application written notice that the land has been designated by the authority of the State for future acquisition by it for a public purpose, or (b) the land is reserved by an environmental planning instrument for use exclusively for a purpose referred to in section 26 (1) (c) of the Environmental Planning and Assessment Act 1979 and the instrument (or some other environmental planning instrument) specifies that authority as the authority required to acquire the land. (2) For the purposes of subsection (1) (a), a notice given by an authority of the State constitutes notice that the land has been designated for future acquisition by that authority only if the notice states that the authority will acquire the land at some future time or that the land is affected by a proposal of that authority that requires the acquisition of the land at some future time. (3) For the purposes of subsection (1) (b), land is reserved by an environmental planning instrument for use exclusively for a purpose referred to in section 26 (1) (c) of the Environmental Planning and Assessment Act 1979 only if— (a) the land is expressly set apart by that instrument for use exclusively for such a purpose, or (b) the land is expressly set apart by that instrument for use for such a purpose and also for other purposes, but those other purposes do not constitute a reasonable use of the land. The aims, objectives, policies and strategies of that instrument are to be taken into account in determining whether those other purposes constitute a reasonable use of the land. (4) The Minister administering the Environmental Planning and Assessment Act 1979 is to institute any relevant proceedings under that Act to enable the designation of the public authority required to acquire land referred to in subsection (1) (b) in any case in which the relevant authority has not been designated. (5) Pending the designation of the relevant authority, the relevant authority is (if the land is required to be acquired under this Division) to be such authority as is determined by order in writing of the Minister administering the Environmental Planning and Assessment Act 1979. (6) A notice of a kind referred to in subsection (1) (a) is to be ignored for the purposes of this section unless it is given after the commencement of this section. However, a reference in subsection (1) (b) to a reservation extends to a reservation effected before that commencement. 22 Owners of land to whom Division applies (1) This Division applies to the following owners of designated land— (a) a person who has the fee simple estate in the land, (b) a person who has become entitled to exercise a power of sale of the land. (2) This Division does not apply to an owner of land which is— (a) an authority of the State, or (b) a public company (within the meaning of the Corporations Act 2001 of the Commonwealth), or (c) a subsidiary (within the meaning of the Corporations Act 2001 of the Commonwealth) of such a public company. 23 Owner who suffers hardship may require authority of the State to acquire land designated for acquisition (1) The owner of land to whom this Division applies may require an authority of the State, by notice in writing given to that authority, to acquire that land under this Act if— (a) the land is designated for acquisition by that authority for a public purpose, and (b) the owner considers that he or she will suffer hardship if there is any delay in the acquisition of the land under this Act. (2) The authority of the State must (subject to this Division) acquire the land within 90 days after the owner gives that authority notice under this section (or such longer period as that authority and the owner may agree on in writing). (3) If there is more than one owner of the land concerned, the notice under this section must be given by all the owners. It is sufficient if any one of those owners will suffer hardship. (4) An authority of the State is not required to acquire (under this Division) more land than it requires for the public purpose for which the land was designated or more interests in the land than it requires for that purpose. (5) A notice under this section must be in the form prescribed by the regulations or (if no such form is prescribed) in the form approved by the Minister. 24 Hardship (1) An authority of the State is not required to acquire land under this Division unless it is of the opinion that the owner will suffer hardship (within the meaning of this section) if there is any delay in the acquisition of the land under this Act. (2) An owner of land suffers hardship if— (a) the owner is unable to sell the land, or is unable to sell the land at its market value, because of the designation of the land for acquisition for a public purpose, and (b) it has become necessary for the owner to sell all or any part of the land without delay— (i) for pressing personal, domestic or social reasons, or (ii) in order to avoid the loss of (or a substantial reduction in) the owner's income. (3) However, if the owner of the land is a corporation to which this Division applies, the corporation does not suffer hardship unless it has become necessary for the corporation to sell all or any part of the land without delay— (a) for pressing personal, domestic or social reasons of an individual who holds at least 20 per cent of the shares in the corporation, or (b) in order to avoid the loss of (or a substantial reduction in) the income of such an individual. 25 Method of acquisition under this Division (1) Land required to be acquired under this Division is to be acquired by compulsory process. (2) However, nothing in this Division prevents the land concerned from being acquired by agreement instead of compulsory process within the period required by this Division. (3) Division 1 (Pre-acquisition procedures) does not apply to an acquisition of land under this Division. 26 Compensation for acquisition under this Division The special value of land, any loss attributable to severance or disturbance and disadvantage resulting from relocation (as referred to in Part 3) need not be taken into account in connection with an acquisition of land under this Division, despite anything to the contrary in that Part. 27 Authority of the State may lift designation of land An authority of the State is not required to acquire land under this Division if, before it is required to acquire the land— (a) in the case of land designated for acquisition as referred to in section 21 (1) (a)—that authority gives the owner of the land written notice that the land is no longer designated by that authority for future acquisition, or (b) in the case of land designated for acquisition as referred to in section 21 (1) (b)—that authority gives the owner a written undertaking that it will use its best endeavours to remove the relevant reservations and a written notice that the land is no longer designated by that authority for future acquisition. 27A Review of decisions on hardship applications by independent person (1) An owner of land who has given an authority of the State a notice under this Division requiring the authority to acquire the land may apply to the Secretary of the Department of Planning, Industry and Environment for a review of a decision of the authority not to acquire the land because— (a) the land is not designated by the operation of this Division for acquisition by the authority for a public purpose, or (b) the owner will not suffer hardship if there is any delay in the acquisition of the land, or (c) the authority is not otherwise required under this Division to acquire the land. (2) An application for the review of any such decision is to be made within 28 days after the owner of the land is notified of the decision by the authority of the State. (3) The Secretary is to refer the application to a reviewer for determination. The reviewer is to be a suitably qualified person appointed by the Minister who is not associated with the authority of the State or the applicant. (4) The reviewer— (a) if satisfied that this Division requires the authority to acquire the land—is to quash the decision and decide the matter in accordance with this Division, or (b) if not so satisfied—is to confirm the decision. The reviewer is to endeavour to determine the application within 28 days after the application is referred to the reviewer. (5) The decision of the reviewer is final and is required to be given effect to by the authority of the State. (6) If the authority of the State fails to acquire land under this Division within 90 days after the owner of the land gives a notice to the authority under this Division to acquire the land, the authority is taken, for the purposes only of an application for review under this section, to have made a decision not to acquire the land. (7) The regulations may make provision for and with respect to the making of applications under this section, the appointment of reviewers and the determination of those applications. 28 (Repealed) Division 4 Miscellaneous provisions relating to acquisition 29 Acquisition of Crown land (1) Land may be compulsorily acquired by an authority of the State under this Act even though it is Crown land. (2) If Crown land is subject to a dedication or reservation that (by virtue of any Act) cannot be removed except by an Act, that land may not be compulsorily acquired. However, this prohibition does not apply if the dedication or reservation is not affected by the compulsory acquisition of the land. (3) Nothing in this Act affects the acquisition by agreement of Crown land by an authority of the State. (4) The provisions of Division 1 (Pre-acquisition procedures) and Part 3 (Compensation for acquisition of land) do not apply to the compulsory acquisition of Crown land if the owners of the land have agreed on all relevant matters concerning the compulsory acquisition and the compensation (if any) to be paid for the acquisition. 30 Compulsory acquisition with consent of owners (1) An authority of the State and the owners of land may agree in writing that the land be compulsorily acquired by that author