By Zac Herps
Privately owned land may be resumed by a Government Authority pursuant to the Acquisition of Land Act. A resumption occurs by the Government Authority issuing the following:
To succeed in a claim for compensation relating to a land resumption, the claimant must have had an interest in the resumed land as at the date the Gazette Notice of Taking of Land was advertised.
The claimant can have an interest in the land by:
The claimant can make a claim under the Acquisition of Land Act. Time limits for doing so may apply but such time frames need to be assessed on a case by case basis.
Previously it was widely considered that only land owners were entitled to compensation for loss and damages suffered as a result of land being resumed by a Government Authority.
The decision in Mekpine Pty Ltd v Moreton Bay Regional Council (successfully litigated by Hillhouse Burrough McKeown) resulted in the previously held belief (see previous paragraph) being found to be incorrect by the Land Court. A claimant will have a compensable interest in the resumed land if that claimant meets the criteria set out above.
In short, mere tenants that were previously held to have no right to compensation in land resumption cases have been found to have an interest in the land and accordingly have a compensable interest under the Acquisition of Land Act.
A claimant may make a claim under the Acquisition of Land Act if the resumption has resulted in financial loss and damage to the claimant’s business, for example:
In most cases a claimant will require a formal forensic accounting report to determine its present and future loss of profits. A claimant may also require further expert evidence from retail precinct experts, traffic experts and so on. These experts help explain to the Court how the land resumption affected the business and assist to calculate the loss and damage that a claimant’s business may have suffered as a result of the land resumption and associated road works.
Once a claimant has quantified its loss by a forensic accounting report it can file an Originating Application with the Land Court of Queensland claiming payment for its financial loss, disturbance, costs and interest.
The defendant to the claim is the Government Authority that resumed the land (usually a local council or Main Roads).
The result in the Mekpine decision means that the claimant’s risk of the Court ruling against it is significantly reduced. The question to be determined by the Court is “how much compensation should be paid” as opposed to “should compensation be paid at all”.
All this puts the claimant in a stronger negotiating position which can result in a quicker and less expensive prosecution of its claim or resolution by a negotiated compensation payment with the Government Authority. However this, of course, cannot be guaranteed and the claimant may need to litigate the claim up to and including a trial.
The relevant steps that will be followed once the Originating Application is filed are as follows:
It is difficult to estimate legal costs with certainty. Any legal costs that a claimant may incur are dependent on a number of factors including, for example, the attitude of the resuming authority over which neither we, nor the claimant, will have any control.
Litigation can be an expensive and time consuming process. However, if a claimant is successful costs and interest and so on are also potentially payable to the claimant to assist to recover the costs incurred in prosecuting the claim.
Further the legislation generally realises that often it can be a David vs. Goliath type battle with ordinary people pursuing claims against Government Authorities with comparatively unlimited financial resources. To help address this power imbalance, s 23 of the Acquisition of Land Act provides a mechanism for a claimant to claim some of its potential claim early in the litigation process to help fund its fight against the relevant Government Authority.
S 23 of the Acquisition of Land Act provides that the amount of an advance (being advance payment of compensation) under this section shall not exceed:
(a) where the constructing authority has made to the claimant an offer in writing of an amount of compensation in settlement of the claimant’s claim—that amount; or
(b) where the constructing authority has not made the offer mentioned in paragraph (a) an amount equal to its estimate of the amount of compensation payable to the claimant.
The effect of this is to enable a claimant to request the Government Authority to pay an advance on compensation (that the Government Authority accepts it will have to pay even if it achieves success in Court) to the claimant, which amount can then be used by the claimant to fund its litigation against that relevant Government Authority.
There is no guarantee that a payment under s 23 of the Acquisition of Land Act will be paid by the Government Authority but in some cases a payment is made to a claimant.