LSB September 2021 LR

COMPULSORY ACQUISITION
Compulsory Acquisition of Land:
Navigating the intersection
between executive powers and
individual property rights
DON MACKINTOSH, SENIOR SOLICITOR, COMMERCIAL, ENVIRONMENT & NATIVE TITLE SECTION, CROWN SOLICITOR’S OFFICE
The compulsory acquisition of land
provides a particularly acute example
of the intersection of the powers of the
executive arm of government with the
rights of property of the citizen. The
subject is particularly topical at present,
given the substantial number of current
government infrastructure projects that
require the acquisition of land. 1 Most
prominent amongst these is the North-
South Corridor Project, which, when
completed, is intended to provide a
continuous 78km non-stop link from Old
Noarlunga to Gawler. The acquisition of
land for infrastructure projects regularly
attracts media attention. 2
This paper will sketch a brief outline
of the compulsory acquisition process and
identify the principal rights and obligations
of persons whose interest in land is
proposed to be or has been divested or
diminished by an acquisition. The paper
will focus exclusively upon the relevant
South Australian legislation and will not
touch upon the acquisition of land by the
Commonwealth. It will not discuss the
acquisition of native title.
POWER TO COMPULSORILY ACQUIRE LAND
There is no common law power for
the Crown to take land compulsorily. 3 It
follows that the power must be conferred
by Parliament. Compulsory acquisition
and the entitlement to compensation are
therefore entirely creations of statute. 4
The Land Acquisition Act 1969
(SA) (LAA) does not itself confer the
power to compulsorily acquire land. It
assumes that the power exists and that all
conditions precedent to its exercise have
been satisfied, and simply furnishes the
statutory procedure for the exercise and
consequences of that power. The actual
24 THE BULLETIN September 2021
power to acquire land must be authorised
by what the LAA describes as a “special
Act”. 5 The LAA is therefore purely a
machinery Act. Its first purpose is to
provide a mechanism by which the State
can compulsorily acquire land that is
required for the purposes of a statutorily
authorised purpose in the broader public
interest. 6 The rights of parties who held an
interest in the acquired land are converted
into an entitlement (subject to the
operation of the Act) to be compensated
for certain losses that are suffered by
reason of the acquisition. 7
Numerous South Australian statutes
confer a power for the compulsory
acquisition of land. Examples include s
20(1)(a) of the Highways Act 1926, s 23 of
the Passenger Transport Act 1994 and s 6 of
the Education and Children’s Services Act 2019.
A special Act that authorises the
compulsory acquisition of land is taken
to authorise the acquisition of “land” as
defined by the LAA: s 7(1a) of the LAA.
That definition is broad, extending to rights
that would not constitute an interest in land
for the purposes of the general law. 8
THE STATUTORY PROCEDURE
Service of a Notice of Intention to Acquire: ss
10 and 10A
The person that is authorised by a
special Act to acquire land is referred
to in the LAA as the Authority. When
an Authority proposes to acquire land
(other than native title and underground
land), it must serve a Notice of Intention
to Acquire (NOI) upon each person
whose interest in the land is subject to
acquisition. 9 The service of the NOI
commences the statutory process.
The NOI must define the land that is
proposed to be acquired with reasonable
particularity, set out the operation of s 26B
of the Act (to be referred to shortly) and
otherwise be in the form prescribed in the
Land Acquisition Regulations 2019. The NOI
does not bind the Authority to acquire the
Land.
An owner of land (or an interest
in land) to whom a NOI is given must,
no later than 14 days after receiving
the notice, notify the Authority of any
person who, to their knowledge, has an
interest in the land, and the nature of the
person’s interest. A refusal or failure to
do so without reasonable excuse commits
an offence, with a maximum penalty of
$5,000.
Entry of a Caveat: s 14
When the land that is the subject of
the proposed acquisition is under the Real
Property Act 1886 (as will usually be the
case), the Authority must cause a copy of
the NOI to be served upon the Registrar-
General. 10 The Registrar must then enter
a caveat over the certificate of title for
the land, forbidding all dealings with the
land without the written consent of the
Authority.
Right to Seek an Explanation of the Reasons for
the Acquisition: s 11
The service of an NOI upon a person
whose interest in the land is subject to
acquisition fulfills several purposes, but
relevantly triggers a number of rights
in the recipient. First, s 11 of the LAA
provides that a person who has been
served can, within 30 days after the notice
was given to the person, require the
Authority to give an explanation of the
reasons for the acquisition of the land and
provide reasonable details of any statutory
scheme in accordance with which the land
is to be acquired.