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.
(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.
(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.
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 in at least one newspaper circulating 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.
(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 solatium (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.
Division 4 Miscellaneous provisions relating to acquisition
(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 authority.(2) The provisions of Division 1 (Pre-acquisition procedures) and Part 3 (Compensation for acquisition of land) do not apply to any such compulsory acquisition if the owners have agreed in writing on all relevant matters concerning the compulsory acquisition and the compensation to be paid for the acquisition.
31 Rescission of acquisition notice
(1) The Governor may, by notice published in the Gazette, rescind in whole or in part any acquisition notice.(2) An acquisition notice may not be rescinded unless a Minister has certified that it is necessary to do so for the purpose of correcting a clerical error or obvious mistake or for other good cause or that the former owners of the land have agreed to the rescission.(3) An acquisition notice published under Division 3 (Owner-initiated acquisition in cases of hardship) may not be rescinded without the consent of the owner who required the acquisition.(4) On the publication in the Gazette of the rescission notice, the land described in the rescission notice:(a) revests in the person who was entitled to it immediately before the compulsory acquisition for the estate, interest or right which the person had immediately before the compulsory acquisition, but subject to any interest in or equity binding on the land created by the authority of the State since its compulsory acquisition, and(b) is subject to all trusts, restrictions, dedications, reservations, easements, rights, charges, rates and contracts from which it was freed and discharged by the compulsory acquisition, and(c) is subject to any interests in or equities binding on the compensation money that were created since the compulsory acquisition.(5) If a resumption application relating to land described or referred to in an acquisition notice has been lodged under section 31A (2) of the Real Property Act 1900 with the Registrar-General:(a) a rescission notice may not rescind so much of the acquisition notice as relates to that land, and(b) any transfer of that land, after it has been brought under the provisions of the Real Property Act 1900, to the person who was entitled to it immediately before the resumption is, for the purposes of Part 4 of this Act, taken, on its registration under that Act:(i) to revest that land under this section in the transferee, and(ii) to rescind the compulsory acquisition in so far as it relates to that land.(6) Part 4 deals with the compensation payable when an acquisition notice is rescinded under this section.(7) In this section, acquisition notice includes a notification of appropriation or resumption made under the Public Works Act 1912 before the commencement of this section.
An interest in land (such as an easement) may be acquired by compulsory process under this Act even though the interest did not previously exist in relation to the land.
33 Validity of compulsory acquisition
Once land has been acquired by compulsory process under this Act, the validity of the acquisition is not affected by:(a) a failure to comply with any requirement of this Part relating to the giving of notice of the proposed acquisition, or(b) a subsequent failure to comply with a requirement of this Act relating to the acquisition.
34 Former owner’s right to occupy land until compensation paid etc
(1) A person who was in lawful occupation of land immediately before it was compulsorily acquired under this Act and to whom compensation is payable under this Act is entitled to remain in occupation until:(a) the compensation is duly paid to the person, or(b) the authority of the State makes (in accordance with any other provision of this Act) an advance payment of not less than 90 per cent of the amount of compensation offered by the authority, or(c) the authority of the State makes (in accordance with any other provision of this Act) a payment into the trust account kept under Part 3 of not less than 90 per cent of the amount of compensation offered by the authority,whichever first occurs.(2) Any such person is entitled to remain in occupation of any building that is the person’s principal place of residence, or the person’s place of business, for 3 months after it is compulsorily acquired, even though the person has ceased to be entitled to remain in occupation under subsection (1). However, if the Minister responsible for the authority of the State is satisfied that the authority requires immediate vacant possession of land, the authority is entitled to immediate vacant possession even though the 3-month period has not expired.(3) The terms on which a person remains in occupation of land that has been compulsorily acquired under this Act are, in the absence of agreement, such reasonable terms as are determined by the authority of the State (including terms as to the rental to be paid and the restrictions on the use of the land). The Residential Tenancies Act 2010 does not apply to that continued occupation.(4) Any such unpaid rent or other money due to the authority of the State may be set off against the compensation payable under this Act.
35 Power of authority of the State to obtain possession of compulsorily acquired land
(1) If, after an authority of the State becomes entitled to vacant possession of land compulsorily acquired under this Act, any person remains in or takes up occupation of the land, that authority may direct and empower the Sheriff (or any person prescribed by the regulations) to deliver possession of the land to that authority.(2) On receipt of any such direction, the Sheriff (or prescribed person) is required to deliver possession of the land to the authority of the State.(3) The costs incurred by the Sheriff (or prescribed person) in delivering possession of the land may be recovered as a debt by the authority of the State from the person refusing to deliver possession. The authority of the State may deduct the amount of any such costs from any compensation payable to the person under this Act.(4) Nothing in this section operates to limit or restrict the power of the authority of the State to enforce its right to possession of land otherwise than under this section.
36 Adverse use of acquired land
(1) If a person is using, or proposes to use, land acquired by an authority of the State by compulsory process in a manner inconsistent with the public purpose for which the land was acquired, the Land and Environment Court may, on the application of that authority, make such order as it thinks fit to remedy or restrain that use.(2) Without limiting the powers of the Land and Environment Court under subsection (1), an order made under that subsection may:(a) restrain the use of any building, work or land, or(b) require the demolition or removal of any building or work, or(c) require the reinstatement, as far as practicable, of a building, work or land to the condition it was in immediately before the relevant use.(3) The Land and Environment Court may, at its discretion, by interlocutory order, restrain the continuation of the relevant use of the land pending the determination of an application under subsection (1).