'It's the law' - Compulsory Acquisition

The process of compulsory acquisition of land is entertainingly dealt with in one of my favourite films, the Castle. In the Castle, Darryl Kerrigan fights to save his family’s home from property developers who wish to take the land through the process of compulsory acquisition. In this article I will explain how compulsory acquisition works in Victoria.

Compulsory acquisition is when the government acquires property from individuals or business for public purposes. The public purpose may be something like a new railway, road, or in the case of the Castle, an airport. ‘Compulsory’ acquisition means that the landowner’s or land user’s consent is not required for the acquisition.

All compulsory acquisitions must only be carried out by bodies with the authority to compulsory acquire land under the Land Acquisition and Compensation Act 1986 (Vic). These bodies include the state government, government departments, utility service providers and municipal councils.

Typically, a Notice of Intention to Acquire must be served on each person with an interest in the land (this includes tenants under a lease). This notice will provide helpful information about the proposed acquisition including a map which details the land being acquired. The notice may also restrict the way you can use your land such as prohibiting any building works without the government authority’s permission.

A government authority formally acquires the land by publishing a notice in the Government Gazette. However, the government authority cannot take possession of land used as someone’s home or business until three months after the date of acquisition except in limited circumstances.

A person who loses their land under compulsory acquisition should be offered compensation within fourteen days of the compulsory acquisition. The offer should be a fair and reasonable estimate of the value of the land and a copy of the valuation used in determining the offer should be provided. If no offer is made, then the landowner or land user can make a claim within two years of the acquisition. It is wise to speak to a solicitor about the offer of compensation prior to accepting it. Usually claims result in a higher payment being agreed than is first offered.

If there is a dispute between the government authority and the landowner in relation to the compulsory acquisition either may apply to the Victorian Civil and Administrative Tribunal or the Supreme Court for their ruling. Unfortunately, stopping a compulsory acquisition is unlikely to be possible (even when referring to the vibe of the constitution or the argument that a man’s home is his castle). Nevertheless, you should seek legal advice if you are dissatisfied with how a compulsory acquisition of your land is progressing as you may have options available to you.

Patrick Smith is the principal of O’Brien & Smith Lawyers. This article is intended to be used as a guide only. It is not, and is not intended to be, advice on any specific matter. Neither Patrick nor O’Brien & Smith Lawyers accept responsibility for any acts or omissions resulting from reliance upon the content of this article. Before acting on the basis of any material in this article, we recommend that you consult your lawyer.