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We believe that property ownership is a fundamental human right and have acted for a range of clients impacted by compulsory acquisition, including registered homeowners, tenants, and businesses. For this reason, our compulsory acquisition lawyers in Adelaide, led by partner Fraser Lamb, have established a reputation for advising and advocating for clients on a range of such matters.
What is compulsory acquisition?
Compulsory acquisition of land refers to the right of the government to acquire privately owned land. This right stems from the ‘doctrine of tenure’ adopted from English common law. In simple terms, the doctrine means to hold or possess land ‘of’ or ‘from’ another. The underlying principle is that the monarch ultimately owned all land, which was given to others via a ‘grant’.
Although Australia’s laws and policies have evolved significantly since adopting the common law, compulsory acquisition still remains. Accordingly, land ownership in Australia is subject to the right of the government to ‘take back’ or acquire the land, or part of it. While this may sound extreme, the Constitution fortunately requires that any acquisition must occur on ‘just terms’.
The Land Acquisition Act 1969 (SA) sets out the process for the acquisition of land in South Australia and the compensation to which owners or tenants are entitled. In practice, various Authorities manage the property acquisition process, including local Councils and the South Australian Government.
What happens if I receive an acquisition notice (Notice of Intention)?
A government body, such as a local council or department (for example, the Department of Infrastructure and Transport), may acquire privately owned land for public projects such as roads, railways, schools, and hospitals. In addition, the government has the right to place an easement or other licence on privately owned land.
If you have an interest in land that is to be acquired, you will receive a Notice of Intention to Acquire Land and an Acquisitions Case Manager will be assigned to you. You may be entitled to compensation if the compulsory acquisition will adversely affect your interest in the land. Your interest may be as an owner, residential tenant, or commercial tenant.
At this point, we recommend retaining a lawyer to ensure that your legal interests remain protected and that you obtain the maximum compensation possible, which is your fundamental right. In addition, obtaining legal advice will help you understand your rights and the process involved while allowing time to prepare a strategy to pursue your claim for financial compensation. Importantly, under the Act your reasonable legal costs in compulsory acquisition matters will be reimbursed, meaning you can retain quality representation without worrying about excessive legal fees.
You may also have certain objection rights under the Act.
How is compensation determined?
The starting point in determining compensation is a valuation by an independent valuer, typically based on market sales evidence of comparable properties in the same area (as if the proposed infrastructure for which the land is required was not proceeding).
In addition, compensation should take into consideration, where relevant, disturbance (conveyancing and relocation costs), transfer costs (stamp duty and registration fees), special value, and a solatium payment. A solatium payment may apply for residential property owners in circumstances where the acquired land is their principal place of residence.
Authorities assess compensation differently for residential or commercial tenants. However, we are specialists in this complex area of law and have spent many years helping people in South Australia who face compulsory acquisition to achieve maximum compensation.
Our Adelaide Compulsory Acquisition Lawyers Will:
- Guide you through the relevant Land Acquisition Acts and Regulations
- Maximise your potential heads of compensation including special value, severance, solatium and disturbance
- Develop negotiation strategies tailored to residential, commercial, or agricultural matters
- Lead negotiations and settlement conferences with the Authority
- Instruct expert property valuers, business valuers, counsel, or other professionals through the acquisition process
- Negotiate with the Authority on the provision of temporary access to land
- Facilitate the withdrawal of compensation funds out of the Supreme Court Suitor’s Fund
- Prepare and lodge Court Applications
If you have an interest in property that is being acquired, please contact us early. This will help you navigate the process and ensure that you are properly compensated for what can be an unexpected interruption and upheaval to your life or business.
If you need assistance, contact one of our lawyers at [email protected] or call 08 8155 5322 for expert legal advice.