LSB September 2021 LR

COMPULSORY ACQUISITION
is an essential prerequisite before a
claimant can refer a matter concerning
compensation into the Supreme Court
for adjudication. 29
OTHER PAYMENTS
A range of other payments (excluded
from the definition of compensation) may
be available under the LAA, depending
upon the circumstances. These include:
• The Authority may make an upfront
payment to a fee simple proprietor of
land who has been served with an NOI
of an amount up to $10,000, towards
payment of professional fees (which
includes legal and valuation costs): s
26B and r 13;
• The Authority may pay to residential
tenants an amount up to $10,000
towards payment of relocation costs
after service of the notice of intention
but before the acquisition of the land: s
26C and r 14; and
• The Authority may pay the transfer
costs (including stamp duty and
Lands Titles Office registration fees)
of a registered proprietor of land
which has been acquired in relation
to the purchase of replacement land.
This payment is only available for
acquisitions of the whole of the land in
a particular certificate of title and the
purchase of the replacement property
must satisfy the conditions set out in
section 26D and r 15.
DETERMINATION OF COMPENSATION BY
THE COURT
Either a claimant or the Authority
can refer a question arising in the course
of negotiations for compensation into
the Supreme Court. 30 As noted above,
a claimant can only take this step after
applying for and taking part in a formal
settlement conference.
UNDERGROUND LAND
Part 4A of the LAA was introduced on
2 July 2020 and contains special provisions
for the acquisition of underground
land. 31 These modify the application
of the standard processes that apply to
normal acquisitions. So, for example,
the requirement for the service of an
NOI, and the provisions for seeking an
explanation of the reasons for a proposed
acquisition, objecting to it and seeking a
review of the disallowance of an objection
have all been excluded from the acquisition
of underground land. 32
Briefly, by s 26F:
• The Authority can publish a NOA of
underground land in the Gazette;
• The publication of the NOA has the
effect of vesting the underground land
in the Authority and discharging any
other interest immediately;
• The Authority must then notify the
former proprietor of the acquired land
as soon as reasonably practicable after
the acquisition; and
• The Authority enters into possession
of the underground land on the date
specified in the NOA or (if none is
specified) the date of publication of
the NOA.
Generally, no compensation is
payable in relation to the acquisition of
underground land under section 26F. 33
However, persons who own a lawful well
or are entitled to take underground water
from a lawful well may have a limited
entitlement to compensation pursuant to
the process set out in section 26H.
A copy of the NOA must be lodged
with the Registrar-General, who will issue
new certificates of title for the acquired
land and for the unaquired land.
Part 4A was specifically enacted to
facilitate the acquisition of substratum
land to enable the creation of road tunnels
for the North-South Corridor Project. B
Endnotes
1 The Department for Infrastructure and
Transport currently has approximately 28
current infrastructure projects that involve the
compulsory acquisition of land.
2 For example: The Advertiser 11 June 2021 p 8, 7
July 2021 p 1, 8 July 2021 p 3, 5 June 2021 p 1,
29 June 2019 p 1, to name but a few.
3 ICM Agriculture Pty Ltd v Commonwealth (2009)
240 CLR 140 at [181]; R & R Fazzolari Pty Ltd
v Parramatta City Council (2009) 237 CLR 603
at [41] and Walker Corporation Pty Ltd v Sydney
Harbour Foreshore Authority (2008) 233 CLR 259
at [29]. Query the power to requisition property
under the “war prerogative”.
4 Mandurah Enterprises Pty Ltd v Western Australian
Planning Commission (2010) 240 CLR 409 at [32];
R & R Fazzolari Pty Ltd v Parramatta City Council
(2009) 237 CLR 603 at [41]; Walker Corporation
Pty Ltd v Sydney Harbour Foreshore Authority (2008)
233 CLR 259 at [29]-[30].
5 See s 7 of the LAA.
6 Anderson v Commissioner of Highways [2019]
SASCFC 119 at [25], [55], per Stanley J.
7 As above.
8 The definition appears in s 6(1) of the LAA.
9 See s 10 of the LAA.
10 See s 14(2) of the LAA.
11 See s 12 of the LAA.
12 But see s 66 of the South Australian Civil and
Administrative Tribunal Act 2013 for the possible
extension of this period.
13 See s 12A(4) of the LAA.
14 See s 16(1) and footnote 2 to that section, and ss
15(4) and 15(4a) of the LAA
15 See s 16(5a) of the LAA.
16 Hansard (HA) 25 September 2019 pp 7561-7562
Hon V. Chapman.
17 The expression “declared acquisition project” is
defined in s 24(15) of the LAA.
18 The requirement for alienability does not apply
to native title: see s 22B(2) of the LAA.
19 See ss 23(4), (5) and (6) of the LAA.
20 See s 23A(1) of the LAA.
21 A typical example would be the case of a
commercial tenant carrying on a business, in
circumstances where the value of the business is
unknown and it is not known if the business can
reasonably be reinstated elsewhere.
22 See s 23A(1a) of the LAA.
23 However, if the amount does not exceed
$10,000, it can be paid directly to the claimant:
see s 26A of the LAA and r 12 of the Land
Acquisition Regulations 2019.
24 See s 26 of the LAA, the Land and Valuation
Division Rules 2014 and the Uniform Civil Rules
2020.
25 See s 23A(4) of the LAA.
26 See s 23A(5) of the LAA.
27 See s 23AB of the LAA.
28 See s 23AC of the LAA.
29 See s 23C(1a) of the LAA.
30 See s 23C of the LAA.
31 Those provisions do not apply to an acquisition
of underground land in which native title exists:
see s 26DA of the LAA.
32 See s 26E of the LAA.
33 See s 26F(5) of the LAA.
September 2021 THE BULLETIN 27