Division 2Division 2 Acquisition of land on private application
(1) In this Division:apparent owner of land means any person:
(a) who has a registered interest in the land, or(b) who is in lawful occupation of the land, or(c) who has, to the actual knowledge of the Minister, an interest in the land.application means an application under this Division for the acquisition by the Minister of land (other than unoccupied Crown land) for the purposes of a public road.
claim of interest means a claim that a person has an interest in land to be acquired under this Division.
Commonwealth Native Title Act or NTA means the Native Title Act 1993 of the Commonwealth.
native title or native title rights and interests has the same meaning as in the Commonwealth Native Title Act.
registered interest in land means an interest in land recorded in:
(a) the Register kept under the Real Property Act 1900, or(b) the General Register of Deeds kept under the Conveyancing Act 1919, or(c) 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).(2) For the purposes of this Division, a holder of native title rights and interests in relation to land has an interest in land.Note. Approved determination of native title, referred to in paragraph (c) of the definition of registered interest, is defined in sec 253 NTA.
Notes included in this Division are explanatory notes and do not form part of this Act.
182 Private individuals etc may request Minister to acquire land
(1) Any person who is not empowered to compulsorily acquire land may apply to the Minister for the acquisition under this Division of land (other than unoccupied Crown land) for the purposes of a public road.(2) An application may be transferred, in accordance with the regulations, to any person who is not empowered to compulsorily acquire land.(3) The Minister may, by notice published in the Gazette, acquire the whole or any part of the land to which such an application relates.(4) Land may not be acquired under this Division unless the provisions of this Division have been complied with.Note. The NTA also imposes requirements where the native title rights and interests are compulsorily acquired.
183 Minister may require information and advance payments
(1) The Minister may from time to time, by notice in writing served on the applicant, require the applicant to lodge with the Minister any one or more of the following within the period specified in the notice:(a) any fee required to cover the cost of processing the application,(b) any sum of money necessary to defray a cost incurred by the Minister or any other person with respect to the proposed acquisition,(c) particulars of the financial resources available to the applicant,(d) any further information relevant to the application,(e) a plan of survey, in a form approved by the Minister, of the land proposed to be acquired.(2) Such a notice may be served either before or during the consideration of the application.(3) An application is taken to have been abandoned if the requirements of any such notice are not duly complied with.
184 Decision on whether to deal with application
(1) The Minister:(a) must decide whether to deal with the application or whether to refuse to deal with the application, and(b) must give notice to the applicant of the decision and (if the Minister decides to refuse to deal with the application) of the reasons for the decision.(2) If the Minister decides to deal with the application, the Minister must cause notice of that fact:(a) to be published in a local newspaper, and(b) to be served on each person who is an apparent owner of the land affected by the proposed acquisition including:(i) any registered native title body corporate (within the meaning of the Commonwealth Native Title Act) in relation to the land, and(ii) (Repealed)(c) to be served on each person who is a registered native title claimant (within the meaning of the Commonwealth Native Title Act) in relation to the land affected by the proposed acquisition.(3) The notice:(a) must state that the Minister is considering whether to acquire the land for the purposes of a public road, and(b) must identify the land, and(c) must indicate the place at which, and the times during which, a plan of the land is available for inspection by members of the public, and(d) must state that any person is entitled to make submissions to the Minister with respect to the proposed acquisition of the land, and(e) must state that, if the land is acquired, any person having an interest in the land will be entitled to compensation so long as the person has lodged a claim of interest with the Minister, and(f) must indicate the manner in which, and the period (being at least 42 days) within which, any such submission or claim should be made or lodged.(4) The Minister must ensure that copies of the plan of the land are available for inspection by members of the public at the place, and during the times, specified in the notice.
185 Registrar-General to be notified of Minister’s decision to deal with an application
(1) The Minister must, as soon as practicable after publishing a notice of intention to deal with an application, give notice of that fact to the Registrar-General.(2) Any such notice must be in such form as the Registrar-General approves.(3) On receipt of the notice, the Registrar-General must make such recordings as the Registrar-General considers appropriate in the Register kept under the Real Property Act 1900, or in the General Register of Deeds kept under the Conveyancing Act 1919, as the case requires.
186 Public submissions and claims of interest
(1) Any person may make submissions to the Minister with respect to the proposed acquisition of land under this Division.(2) Any person who believes that he or she may have an interest in the land proposed to be acquired may lodge a claim of interest with the Minister.(3) A claim of interest:(a) must contain the full name and residential address of the claimant, the claimant’s address for service of notices and particulars of title of the land in respect of which the claim is made, and(b) must specify the interest that the claimant claims to have in the land, and(c) must state whether the claimant is aware of any other person who has an interest in the land and, if so, must also state, to the extent to which the claimant is aware of them, the name and residential address of that person and particulars of the interest.
187 Decision on whether to continue with proposed acquisition
(1) After considering any submissions that have been duly made with respect to the proposed acquisition of land, the Minister:(a) must decide whether to continue with, or to abandon, the proposed acquisition, and(b) if the Minister decides to abandon the proposed acquisition, must give notice to the applicant of the decision and of the reasons for the decision.(2) If the Minister decides to continue with the proposed acquisition, the Minister:(a) must determine each claim of interest, and(b) must give notice to the claimant of the determination and (if the Minister decides to reject the claim) of the reasons for the determination.(3) Any claim that has not been determined within 56 days after it was lodged with the Minister is, for the purposes of any appeal proceedings, taken to have been rejected.(4) This section does not prevent the Minister:(a) from determining a claim that is lodged after the due date for lodgment of claims, or(b) from determining a claim that is taken to have been rejected.
188 Appeal against rejection of claims of interest
(1) A person who claims an interest in land may, in accordance with rules of court, appeal to the Land and Environment Court against the rejection of the person’s claim.(2) Such an appeal must be made within 28 days after the date on which the claim is rejected.(3) The Land and Environment Court is to determine the appeal by declaring whether or not the claimant has an interest in the land and may, with the consent of the parties to the appeal, make a determination as to the compensation to be paid or otherwise provided to the claimant.(4) For the purposes of this section, the parties to the appeal are the Minister, the claimant and the applicant.
189 Notice to be sent to holders of interests in land
(1) After the claims of interest have been determined, the Minister must give notice of the decision to continue with the proposed acquisition of the land to:(a) the applicant, and(b) each person whose claim of interest has been accepted.(2) The notice:(a) must invite the applicant and each such person to agree on the amount of compensation to be paid or otherwise provided in respect of that person’s interest, and(b) must notify the applicant and each such person that any such agreement does not have effect unless it is approved by the Minister, and(c) must notify the applicant and each such person that either of them, or the Minister, may apply to the Land and Environment Court for a determination of the amount of compensation to be paid or otherwise provided if an agreement is not made and approved within 12 weeks after service of the notice.(3) Notice is not required under this section if the applicant and each person whose claim of interest has been accepted have reached agreement on the compensation to be paid or otherwise provided and have lodged the agreement with the Minister for approval.
190 Entitlement to compensation
(1) Any person from whom an interest in land is acquired under this Division is entitled to compensation from the Crown for the land acquired.(2) There is no entitlement to compensation with respect to:(a) any right, licence, authority, permit, permissive occupancy or yearly lease of Crown land, or(b) any authority, mineral claim or opal prospecting licence under the Mining Act 1992, or(c) any petroleum title under the Petroleum (Onshore) Act 1991, or(d) any interest in respect of which a claim of interest has not been duly made, or(e) any interest in respect of which a claim of interest has been made but has been rejected.(3) If the Minister is satisfied that there is an interest in the land for which no claim has been made, but is unaware of the identity or whereabouts of the owner of the interest, the Minister may determine that such a person is nevertheless entitled to compensation.(4) The provisions of sections 49, 50, 52 and 53, and Division 4 of Part 3, of the Land Acquisition (Just Terms Compensation) Act 1991 apply to compensation to be paid or otherwise provided for the acquisition of land under this Division as if references in those provisions to an authority of the State were references to the Minister.(5) Interest under section 49 of the Land Acquisition (Just Terms Compensation) Act 1991 is not payable on any amount of compensation paid within 28 days after the date of acquisition.(6) The applicant must pay to the Crown the amount of any compensation to be provided under this Division, together with any costs incurred by the Crown in connection with the provision of any such compensation.
191 Ascertainment of compensation payable
The amount of compensation to be provided is to be determined:(a) by agreement between the applicant and each person whose claim has been accepted, or(b) failing agreement, by the Land and Environment Court, or(c) if the identity or whereabouts of the owner of any interest in the land concerned cannot be ascertained, by the Valuer-General.
191A Requests for non-monetary compensation for native title
(1) This section applies to any negotiations held about a compulsory acquisition of native title rights and interests under this Division.(2) If, during any such negotiations, a person or persons who may be entitled to compensation ask that the whole or part of the compensation should be in a form other than money, the other person or persons involved in the negotiations:(a) must consider the request, and(b) must negotiate in good faith about the request.Note. Section 79 NTA requires that requests for non-monetary compensation by persons who may be entitled to compensation for impairment or extinguishment of native title rights and interests must be handled in the manner referred to in section 191A. The transfer of property or the supply of goods or services are examples of compensation in a form other than money.
192 Determination by agreement
(1) An agreement for compensation must be in writing, must be signed by the parties to the agreement and must be approved by the Minister.(2) The Minister:(a) must decide whether to approve the agreement for compensation or whether to refuse approval, and(b) must give notice to each of the parties of the decision and (if the Minister decides to refuse approval) of the reasons for the decision.(3) The Minister is taken to have approved an agreement for compensation if no notice under this section has been served on any of the parties within 28 days after the agreement was lodged with the Minister.
193 Determination by the Land and Environment Court
(1) The claimant, the applicant or the Minister may, in accordance with rules of court, apply to the Land and Environment Court to determine the compensation to be provided, if no agreement has been approved:(a) within 12 weeks after service of the relevant notice under section 189, or(b) where no such notice is required to have been given (an agreement having been lodged as referred to in section 189 (3)), within 12 weeks after the agreement was lodged.(2) At the hearing of the application, the Minister, the claimant and the applicant are entitled to appear and be heard.
194 Determination by Valuer-General
On the request of the Minister, the Valuer-General is to determine the compensation payable to an owner of the interest in land specified in the request.
194A Entitlement of native title holders to just compensation
If the compensation that is payable under this Part to a person from whom native title rights and interests in relation to land have been acquired does not amount to compensation on just terms within the meaning of the Commonwealth Native Title Act, the person concerned is entitled to such additional compensation as is necessary to ensure that the compensation is paid on that basis.
195 Payment of compensation money
(1) As soon as practicable after compensation has been agreed or determined under this Division, the Minister:(a) must require the applicant to pay to the Minister such part of the compensation so determined as is to be paid in money, and(b) must pay any such amount received from the applicant into a trust account for payment to the persons entitled to the compensation, and(c) must, on acquiring the land, pay the compensation to each person entitled to compensation for the acquisition of the land.(2) The compensation money must be refunded to the applicant if the proposed acquisition is abandoned.(3) Any money remaining in the trust account after 6 years from the date of the acquisition of the land is to be paid to the Chief Commissioner of Unclaimed Money for payment into the Consolidated Fund, there to be dealt with as unclaimed money under the Unclaimed Money Act 1995.(4) The Minister is relieved from further liability with respect to any amount paid into the Consolidated Fund in accordance with subsection (3).
196 Compensation provided in form of land
(1) A person to whom compensation is provided in the form of land is to be treated as having been fully compensated:(a) if the land has a market value equal to or greater than the amount of compensation that would otherwise have been provided in the form of money, or(b) if the land has a market value less than the amount of compensation that would otherwise have been provided in the form of money but the person has agreed to accept the land in full satisfaction of the person’s claim.(2) No duty is payable under the Duties Act 1997 in respect of the conveyance or transfer of any such land and no fee is payable for the registration or recording under any Act of the conveyance or transfer of any such land.
The Minister may require the person to whom any compensation is to be paid or otherwise provided:(a) to release the Minister from any liability to that person with respect to the interest in land for which the compensation is to be paid or provided, and(b) to indemnify the Minister from any liability to any other person with respect to that interest, and(c) to produce any relevant documents of title.
198 Agreement or determination to lapse if land is not acquired within 12 weeks
(1) If land for which compensation has been agreed to or determined is not acquired under this Division within 12 weeks after the agreement was approved or the determination was made, as the case requires, the agreement or determination ceases to have effect.(2) A person entitled to compensation may ratify such an agreement or determination, whether or not it has lapsed under this section, but no later than 12 months after the date on which the agreement was entered into or the determination was made.(3) An agreement or determination ratified under this section continues in force for 12 weeks from the date of ratification and then lapses unless within that period the land to which it relates is acquired under this Division.(4) If an agreement or determination made in respect of a claim for compensation has lapsed under this section and no ratification of the agreement or determination under this section is currently in force, the provisions of this Division apply to the claim as if no such agreement or determination had been made.
199 Abandonment of applications etc
(1) An applicant may, at any time, withdraw an application for the acquisition of land under this Division.(2) The Minister:(a) may at any time and for any reason, and(b) must if the relevant application is withdrawn,abandon the proposed acquisition of land under this Division.(3) If the Minister decides to abandon the proposed acquisition of land otherwise than because the application is withdrawn, the Minister must cause notice to be given to the applicant of the decision and of the reasons for the decision.(4) The applicant is entitled to be refunded all money paid by the applicant to the Minister with respect to the proposed acquisition, other than such amounts as the Minister considers appropriate to compensate the Minister and any other persons who have incurred costs with respect to the proposed acquisition.(5) If a proposed acquisition of land is abandoned, no further application with respect to that land is to be considered by the Minister during the period of 12 months after the acquisition is abandoned unless the Minister is satisfied that the special circumstances of the case justify the consideration of the further application within that period.
200 Registrar-General to be notified of abandonment of application
(1) The Minister must, as soon as practicable after the proposed acquisition of land is abandoned, give notice of that fact to the Registrar-General.(2) Any such notice must be in such form as the Registrar-General approves.(3) On receipt of the notice, the Registrar-General must make such recordings as the Registrar-General considers appropriate in the Register kept under the Real Property Act 1900, or in the General Register of Deeds kept under the Conveyancing Act 1919, as the case requires.(4) This section does not apply if the Minister has not published a notice under section 184 with respect to the proposal.
(1) Any person may, by notice in writing served on the Minister, waive that person’s entitlement to compensation under this Division.(2) The Minister may require a person who has, or who in the opinion of the Minister may have, an entitlement to compensation to give notice to the Minister as to whether or not the person intends to claim compensation.(3) A person on whom such a notice is served is taken to have waived the person’s entitlement to compensation (if any) if the person has not claimed compensation within 42 days after service of the notice.
202 Effect of acquisition of land
(1) On the acquisition of land under this Division, the land becomes free of all trusts, restrictions, dedications, reservations, obligations and interests and, subject to this section, becomes Crown land.(2) There may be excepted from an acquisition effected under this Division:(a) any easement which is specified in the notice effecting the acquisition and to which the land was subject immediately before the acquisition, and(b) any easement specified in that notice which is appurtenant to an easement referred to in paragraph (a).(3) If:(a) in accordance with subsection (2), an easement is excepted from the acquisition, and(b) immediately before the acquisition, the benefit of a restriction as to user was annexed to the easement,then, unless otherwise specified in the notice by which the acquisition is effected, the restriction continues to have effect as if the acquisition had not taken place.(4) The provisions of sections 33–36 of the Land Acquisition (Just Terms Compensation) Act 1991 apply to land acquired under this Division as if references in those provisions to an authority of the State were references to the Minister.