LSB September 2021 LR

COMPULSORY ACQUISITION
An artist's impression of the Darlington Upgrade Project. Source: Department for Infrastructure & Transport
Right to Object: s 12
A person who has been served with
a NOI can, within 30 days after the NOI
was given or, if an explanation had been
sought under s 11, within 30 days after the
explanation was provided, request:
• that the Authority not to proceed with
the acquisition; or
• that the boundaries of the land the
subject of the proposal be altered; or
• that a particular part of the subject land
not be acquired or that further land be
acquired. 11
The grounds upon which an objection
can be made are specified in s 12(3) of
the LAA. They include that the land (or a
particular part thereof) is not necessary for
the undertaking to which the acquisition
relates, or some other ground stated in the
request.
The Authority must consider and
determine the objection within 14 days of
its receipt.
Right of Review by SACAT: s 12A
A person who made an unsuccessful
objection under s 12 can apply to the South
Australian Civil and Administrative Tribunal
(SACAT) for a review of the Authority’s
decision: see s 12A of the LAA. The
application must be made within 7 days
of the service on the person of notice of
the Authority’s refusal of the objection. 12
SACAT must then complete its review
within 21 days of the application being
made. Importantly, a review cannot call into
question the merits of the undertaking to
which the proposed acquisition relates. 13
Acquisition of Title: ss 15, 16 and 17
At any time after the service of the
NOI, and before the land is compulsorily
acquired, the Authority can acquire the
land by agreement with the owner: see s 15
of the LAA. Typically (but not in all cases)
the Commissioner of Highways will write
to the land holder and offer to purchase
the land for an amount that has been
assessed by an independent expert land
valuer. If agreement is reached in this way,
a standard contract of sale will be entered
into and the transfer will be affected in the
same way as an ordinary transfer of land.
Assuming that no agreement is reached
for a negotiated acquisition, the Authority
can publish a Notice of Acquisition
(NOA) in the Government Gazette at least 3
months after the first occasion on which
any NOI was given, but before the period
of acquisition comes to an end (18 months
after the NOI was given, unless a longer
period has been agreed by the parties or
fixed by the Court 14 ): see s 16 of the LAA.
On publication of the NOA:
• the land and interest (for example, an
unencumbered fee simple) specified
within the NOA vests in the Authority;
and
• a mortgage, charge, encumbrance, trust
or other interest affecting the land
(except native title) is, to the extent
that it affects the land subject to the
acquisition, discharged.
The Authority must then serve a copy
of the NOA upon the Registrar-General,
who will withdraw the caveat that had
previously been entered under s 14, cancel
the existing certificate of title and issue a
new certificate or certificates of title. So,
for example, if the acquisition is of the
whole of the land in a title, a new title for
the entirety will be issued in the name of
the Authority. If, however, only portion of
an existing title is acquired, the Registrar
will issue 2 titles: one for the acquired land
in the name of the Authority, the other for
the residual (unacquired) land in the name
of the proprietor.
Notice of the acquisition must also be
given by the Authority to each person who
had received the NOI. 15
Taking Possession of the Acquired Land: ss 24
and 24A
Since 2 July 2020, an Authority gains
an entitlement to enter into possession
not by agreement, but by the unilateral
executive act of issuing a possession
notice to the occupier of the land,
specifying the date on which it will enter
into possession and (subject to minor
exceptions) the arrival of that date: ss
24(1) and (10). 16 The possession notice
must be issued as soon as is reasonably
practicable after the publication of the
NOA in respect of the land. The date
specified in the notice must be not less
than 90 days after the date on which the
NOA was published, unless the land
relates to a “declared acquisition project”,
in which case the possession date can be
a date on or after the date on which the
possession notice is given. 17 An occupier
can apply to the Authority to fix an earlier
or later possession date.
Occupiers that remain in possession
after the date the land was compulsorily
acquired are taken to occupy the land
pursuant to a tenancy, the terms of
which are as determined by the Authority
from time to time. Mandatory terms and
conditions are prescribed by r 8 of the
Land Acquisition Regulations 2019. Unless
the Authority determines otherwise, rent
is payable from 90 days after the date the
NOA was published in the Gazette.
Either the Authority or the recipient of
a possession notice can (except where the
acquisition relates to a declared acquisition
project) refer into the Supreme Court
a refusal by the Authority to fix a later
possession date, a dispute as to the rent
September 2021 THE BULLETIN 25