Is The Government Eyeing Off Your Castle?

Litigation: 22 March 2019

In the 1997 film The Castle, the Kerrigans' home is compulsorily acquired to make way for an airport extension. The Kerrigans fight the compulsory acquisition all the way to the High Court where they obtain a famous victory.

The bite of reality is that, in Australia, the Government has the power to compulsorily acquire your land, be it for an airport extension, road widening, pipeline development or any number of public purposes and generally there is little you can do to stop the process. In the real world your chance of blocking a compulsory acquisition of your property is remote, however, you are entitled to be 'adequately compensated' for such an acquisition.

Unlike the Denis Denuto's of this world, we are experienced in this area of law and well equipped to negotiate compensation on your behalf with the government authority or if your claim cannot be resolved to seek compensation in the Victorian Civil and Administrative Tribunal or the Supreme Court of Victoria.

If you have recently been contacted by the Government advising that they are likely to acquire some or all of your land for a particular public purpose, you may be left wondering what steps are involved in seeking compensation. While we understand that each acquisition is unique in its own right, there are certain steps and processes which are usually followed or required by law.

The Steps

• Following informal advice of a likely acquisition, usually the acquiring authority will serve a Notice of Intention to Acquire on the owner of the land. Once the Notice of Intention to Acquire has been served, the owner of the land is prevented from dealing with the land without the consent of the acquiring authority. The acquiring authority then has up to six months to proceed with the acquisition or to abandon the acquisition.
• If the acquiring authority decides to proceed with the acquisition, then the authority will publish a Notice of Acquisition in the Government Gazette. The property is deemed to be acquired on the date the Notice of Acquisition is gazetted, which is the same date the title in the property vests in acquiring authority as the land owner - the date of acquisition.
• The acquiring authority has a statutory obligation to make an offer of compensation within 14 days of the date of acquisition, although in practice the time taken to make an offer is often longer than this. Provisions of the relevant legislation provide a framework for determining compensation, namely:
  • what is the market value of the land (market value may also include an assessment of the land's potential use)?
  • does the land have any special value?
  • has the value of any remaining land diminished?
  • have any losses been incurred as a result of a disturbance attributable to the acquisition?
• Once the acquiring authority has made an offer of compensation you have three months to either accept (in part or in whole) or reject the offer of compensation made to you by the acquiring authority. In any event, you will be entitled to seek an advance payment from the acquiring authority of the offer made to you without prejudice to your rights to pursue the authority for more compensation.
• If you fail to notify the acquiring authority of your decision within the requisite three month period (or reject the offer) the matter is taken to be disputed and either you or the acquiring authority can issue proceedings in the Victorian Civil and Administrative Tribunal or the Supreme Court of Victoria to resolve the dispute.
• In addition to the acquiring authority providing you with fair compensation reflecting the market value of your property the relevant legislation also requires the acquiring authority to pay all reasonable legal and other expenses directly arising out of the acquisition.

Under Victorian law you have prescribed rights for compensation in a compulsory acquisition. While there is little chance of stopping the acquisition there are certainly many avenues open to ensure you are adequately compensated.