Land Acquisition (Just Terms Compensation) Act 1991

The Act’s primary subjects are “authorities of the State” and “owners” of land. An authority of the State is a Minister, statutory body representing the Crown, council, county council or joint organisation under the Local Government Act 1993, or any other body authorised to acquire by compulsory process (s 4(1)). Section 4(2) clarifies when an authority is “authorised to acquire land by compulsory process”, including under the Public Works and Procurement Act 1912. The Minister responsible for an authority is the Minister administering the relevant Act or the Minister themselves (s 4(3)). Owners of Crown land not vested in another person include the person with care and control or the Minister administering the Crown Land Management Act 2016 (s 4(4)).

“Owner” is broadly defined as any person with an interest in land (s 4(1)), and expressly includes holders of native title rights and interests (s 4(5)). “Interest in land” means any legal or equitable estate, easement, right, charge, power or privilege (s 4(1)). Registered interests are those recorded under the Real Property Act 1900, Conveyancing Act 1919 or National Native Title Register (s 4(1)). Former owners are those whose interests are divested by an acquisition notice (s 37).

The Act also affects prospective purchasers (s 10), caveators (s 12(4)), registered native title claimants (s 12(5)), mortgagees, lessees and other interest holders who must be considered in compensation distribution. The Valuer-General is central to the compensation offer process (ss 18, 41, 47). The Land and Environment Court determines objections and appeals (ss 66–67) and can restrain adverse use (s 36). The Sheriff or prescribed persons may be directed to give possession (s 35). Reviewers appointed under s 27A determine hardship review applications. The Registrar-General receives notifications (s 17) and handles re-vesting on rescission (s 31(5)). The Treasurer sets interest rates (s 50) and receives unclaimed trust money (s 51(5)).

Public companies and their subsidiaries cannot use the hardship provisions (s 22(2)). Individual shareholders holding at least 20% of a corporate owner may trigger corporate hardship (s 24(3)). Multiple families on the same land may each claim relocation disadvantage in defined circumstances (s 60(6)–(7)).

Authorities of the State owe duties to give proposed acquisition notices (s 11), negotiate genuinely for at least 6 months where s 10A applies, notify the Valuer-General (s 18), obtain Governor approval for acquisition notices (s 19), issue compensation notices within 45 days (s 42), make advance payments where appropriate (s 48), pay into trust accounts (s 51), and offer surplus land first to former owners (s 71A). They must consider requests for non-monetary native title compensation in good faith (s 37A) and cannot acquire without power apart from the Act (s 7). When giving notices affecting development applications, they must include the statutory market-value guarantee (s 10).

Owners have the right to compensation on just terms (ss 37, 54), to receive minimum 90-day notice (s 13), to claim hardship acquisition (s 23), to object to the Valuer-General’s amount in the Land and Environment Court (s 66), to appeal rejection of claims (s 67), and to remain in occupation until compensation or 90% advance is paid (or 3 months for principal residence/business, subject to Ministerial override) (s 34). They may agree to shorter or longer negotiation or notice periods (ss 10A(3), 13(2)(a)). Former owners whose land is re-vested on rescission or who suffer costs from withdrawn notices have statutory compensation rights (ss 69–70). Native title holders enjoy the additional NTA-compliant procedures (s 7A(2)) and non-monetary compensation rights (s 37A).

Both parties may agree on compensation pre-acquisition (s 63) or on provision of land or works instead of money (s 64). The Act imposes no civil liability for the statutory objects (s 3(2), s 10(3), s 10A(7)).

The Act is not primarily criminal. Section 74(2) authorises regulations creating offences with penalties not exceeding 5 penalty units. Proceedings are summary before the Local Court (s 73). Enforcement is mainly civil and administrative.

The Land and Environment Court is the principal forum: it hears objections to compensation offers (s 66), appeals against rejection of claims (s 67), and applications to restrain adverse use of acquired land, including by demolition orders or reinstatement (s 36). It may make interlocutory restraining orders (s 36(3)). If compensation determined by the Court (without interest) does not exceed the offer by more than 10%, the Court may cancel or reduce post-commencement interest (s 66(4)).

Possession is enforced by direction to the Sheriff (s 35); costs may be deducted from compensation. Unpaid rent during continued occupation may be set off (s 34(4)). Overpayments or payments to wrong persons must be repaid as debts (s 48(4)–(6)). Trust-account money unclaimed after 6 years goes to the Consolidated Fund, with later claims met from it (s 51(5)).

Validity of acquisition is protected once completed; procedural failures in notice or other Part 2 requirements do not invalidate it (s 33). Rescission of acquisition notices is tightly controlled (s 31), requiring Ministerial certificate and, for hardship acquisitions, owner consent.

Section 8 provides that the Act prevails over any inconsistent provision of another Act relating to acquisition by an authority of the State. It does not empower acquisition where power does not otherwise exist (s 7(1)), but ss 7A and 7B expand powers to acquire native title and an authority’s own land. Acquisitions under the Act remain acquisitions under the empowering Act (s 7(2)).

Heavy interaction occurs with the Native Title Act 1993 (Cth). Sections 4(1), 7A and 37A import NTA definitions and procedures; authorities must follow relevant NTA processes (right to negotiate, s 24MD(6B) or ILUAs) and may acquire native title in the same way as other interests. Compensation for native title must satisfy the “just terms” standard of the NTA; additional compensation is payable if Part 3 is insufficient (s 54(2)).

The Environmental Planning and Assessment Act 1979 is central to hardship designations (s 21). Reservations under environmental planning instruments that set land apart exclusively or predominantly for public purposes trigger the owner-initiated regime. The Minister administering that Act may institute proceedings to designate the acquiring authority and makes interim determinations (s 21(4)–(5)).

The Real Property Act 1900 governs service on caveators (s 12(4)), Registrar-General notifications (s 17), re-vesting mechanics (s 31(5)) and registered interests. The Conveyancing Act 1919 and Crown Land Management Act 2016 supply definitions and owner rules for non-Torrens and Crown land (s 4). The Local Government Act 1993 defines councils and joint organisations as authorities (s 4(1)) and interacts with council resale restrictions noted in Sch 3 cl 5.

The Public Works and Procurement Act 1912 is preserved for certain resumption mechanics (s 4(2)(b)) but the Act’s procedures largely replace earlier Public Works Act provisions (Sch 3 cl 2). The Government Sector Finance Act 2018 governs investment of trust accounts for GSF agencies (s 51(7)).

The Residential Tenancies Act 2010 does not apply to post-acquisition occupation (s 34(3)). Schedule 3 contains extensive savings and transitional rules that continue the operation of the Public Works Act 1912 for pre-commencement acquisitions.

The provided text records a series of amendments that have expanded procedural and compensatory safeguards. The 1994 amendments (1994 No 45) inserted native title provisions (ss 7A, 37A, definitions in s 4), the prevalence rule (s 8), Crown land rules (s 29) and notes on explanatory value (s 4A). They also adjusted rescission (s 31) and compensation for unknown interests (s 53).

The 2009 amendments (2009 No 39) substituted s 7 to clarify that the Act does not confer power and that acquisitions under other Acts remain under those Acts, inserted s 7B (self-acquisition), amended s 7A, and altered transitional provisions in Sch 3. They also inserted s 43A allowing amendment or rescission of compensation notices.

The 2016 amendments (2016 No 59) were particularly significant. They inserted s 10A imposing a 6-month genuine negotiation period before proposed acquisition notices (with Ministerial urgency override requiring concurrence), amended the minimum notice period rules (s 13), altered hardship compensation (s 26), inserted the independent reviewer regime (s 27A), amended disturbance (s 59), relocation disadvantage (s 60, inserting the $75,000 cap), market value (s 56), compensation heads (s 55), claim procedures (ss 39, 41, 42), trust accounts (s 51), Part 4 heading, and inserted s 71A (offer-back to former owners) and Sch 1A (indexation of the relocation cap). These changes responded to perceived deficiencies in pre-acquisition negotiation, hardship decision-making transparency, compensation adequacy for residential relocation, and inefficient retention of surplus land.

Later amendments refined definitions (2017 amendments to s 4 updating Crown land and native title registers), adjusted service methods to include websites (2017 No 25 to ss 19, 72), updated Valuer-General and claim processes (2016 amendments to ss 39, 41, 42), and aligned investment powers with the Government Sector Finance Act 2018 (s 51(7)). The 2020 and 2024 amendments updated departmental titles and cross-references (ss 27A, 55).

Each change is grounded in the amendment history notes appearing beneath the relevant sections in the text. The overall trajectory has been toward greater owner protection, procedural fairness and post-acquisition land management efficiency while preserving the core just-terms guarantee.

The Act itself contains no reported judgments, but its text reveals several points of potential contention that have generated litigation before the Land and Environment Court. Section 33 protects the validity of completed acquisitions from challenge based on Part 2 notice failures or subsequent non-compliance, reflecting a legislative choice to prioritise certainty once vesting has occurred under s 20.

Objections to the amount offered (s 66) and appeals against rejection of claims (s 67) constitute the bulk of Court work. The Court must “hear and dispose of the person’s claim for compensation”. Section 66(4) empowers the Court to cancel or reduce interest where its determination (excluding interest) is within 10% of the offer, creating a costs-incentive to accept reasonable offers. The “good cause” discretion for late objections or appeals (ss 66(3), 67(4)) has been a recurring procedural battleground.

The closed list of compensable heads in s 55 and the exhaustive definition of disturbance in s 59(1) have produced disputes over whether particular costs fall within para (f) (“any other financial costs reasonably incurred … as a direct and natural consequence of the acquisition”). The reinstatement basis in s 56(3) requires the owner to “genuinely propose” to continue the use on other land, raising evidentiary contests. The relocation disadvantage cap (s 60(2)) and its non-financial character have led to arguments about overlap with disturbance and the weight to be given to the mandatory considerations in s 60(3).

Hardship acquisitions under Division 3 have generated controversy around the meaning of “designated for acquisition” (s 21) and the statutory hardship test (s 24), particularly the corporate 20% shareholder rule. The 2016 insertion of s 27A independent review was a direct response to perceived opacity in authority decision-making. The offer-back obligation in s 71A raises questions of “substantial improvements”, “market value at the time the offer is made” and the identification of “former owner” where multiple interests existed at acquisition.

Section 3(2) and parallel clauses in ss 10(3) and 10A(7) preclude the objects or statutory statements from grounding civil causes of action, limiting collateral challenges. Native title interactions (ss 7A, 37A, 54(2)) require compliance with Commonwealth procedures; failure can affect extinguishment validity. The adverse-use injunction power (s 36) allows authorities to restrain use inconsistent with the public purpose, including mandatory demolition, revealing tension between immediate vesting under s 20 and continued owner occupation rights under s 34.

Most practitioners do not realise that s 56(1)(a) requires the Valuer-General and Court to disregard any increase or decrease caused by the public purpose proposal itself; this “Pointe Gourde” style rule is easily overlooked when preparing valuation evidence. Equally under-appreciated is s 56(2): the aggregate of all interests cannot exceed the market value of the whole without Ministerial approval, preventing owners from inflating total compensation through fragmented interests.

The disturbance head (s 59(1)(f)) is not a catch-all; it is limited to costs “relating to the actual use of the land” and must be a “direct and natural consequence”. Many claims for business relocation or lost profits fail because they are not tied to actual use. Stamp duty and mortgage costs are capped at the equivalent of replacement land of equal value (s 59(1)(d)–(e)), a limit frequently missed in client advice.

Relocation disadvantage (s 60) is strictly non-financial and capped at the indexed $75,000. Only one payment per separately occupied land is available (s 60(5)), yet multiple family dwellings or Ministerial approval can multiply it. The 3-month rent-free occupation for principal residence (s 34(3A)) applies only to freehold or long-term owners, not pure leaseholders.

Section 61 is a trap for potential-use valuations: no compensation for financial advantages or losses that would necessarily have been forgone or incurred to realise the higher use. Easement and tunnel acquisitions (s 62) attract almost no compensation absent surface disturbance or support loss, a fact that surprises infrastructure owners.

The 6-month negotiation obligation (s 10A) is not waivable by the authority alone; Ministerial concurrence is required for shortening on urgency grounds, and the owner’s written refusal is the only clean exit. Failure to negotiate genuinely can delay the entire compulsory process. Hardship applicants must prove they cannot sell at market value because of the designation (s 24(2)(a)); a mere planning blight is insufficient if sale remains possible.

The offer-back rule in s 71A is often forgotten by acquiring authorities. It applies only to post-2016 acquisitions, lasts 10 years, and requires the authority to form an opinion on who the “former owner” is when multiple interests existed. A person dealing with the authority is protected from inquiry (s 71A(5)), but internal compliance failures can create political and reputational risk.

Finally, s 33’s validity shield operates only “once land has been acquired”; procedural challenges remain available before Gazette publication. Many applicants discover too late that the statutory objects (s 3) cannot found a civil suit.

For authorities of the State, compliance begins with confirming statutory power apart from this Act (s 7). Before issuing a proposed acquisition notice, satisfy s 10A’s 6-month genuine negotiation obligation or obtain owner waiver or Ministerial approval with concurrence. Draft the notice in the prescribed or Minister-approved form (s 15), serve only on registered interests, lawful occupiers and known interests (s 12), and copy to caveators and native title claimants. Notify the Registrar-General and Valuer-General immediately (ss 17–18). After the 90-day minimum period (or agreed shorter period), obtain Governor approval and publish the acquisition notice in the Gazette (s 19), with supplementary newspaper or website publication.

Within 7 days of acquisition, supply the Valuer-General with a list of relevant issues (s 41(1)). The Valuer-General will determine the offer; the authority must issue a compensation notice within 45 days (s 42), in approved form, accompanied by a deed of release (s 43). Make 90% advance payments where possible (s 48) or pay into the s 51 trust account. For hardship applications, apply the statutory test in s 24, give written reasons, and be prepared for s 27A independent review within 28 days. If land becomes surplus within 10 years, offer it back at current market value to the identified former owner before any other disposal (s 71A).

Maintain accurate trust accounts, invest only as permitted by the Government Sector Finance Act 2018 or Treasurer approval (s 51(7)), and pay unclaimed money to the Treasurer after 6 years. When native title is involved, follow the relevant NTA procedure and consider non-monetary compensation requests in good faith (s 37A). Record all decisions to demonstrate compliance with statutory timeframes and approval requirements.

For owners and their advisers, lodge claims within the period specified in the proposed acquisition notice (not less than 60 days – s 15(e)) or risk deemed acceptance after 90 days from the compensation notice (s 45). Disclose all other interested persons (s 40). If dissatisfied with the offer, file a s 66 objection in the Land and Environment Court within 90 days; late objections require an affidavit showing good cause. For hardship, serve the statutory notice on the authority and be ready to prove inability to sell at market value plus pressing need (s 24). Where relocation is involved, document length of residence, inconvenience and family circumstances to maximise the s 60 assessment up to the indexed cap.

Keep detailed records of legal, valuation and relocation costs to substantiate disturbance (s 59). If the land is specialised, gather evidence of genuine intent to reinstate elsewhere (s 56(3)). On rescission or withdrawal, claim financial costs within 3 years (ss 69–70). Where non-monetary compensation is desired for native title, raise it early in negotiations. Seek legal advice before agreeing to shortened notice or negotiation periods, and remember that continued occupation rights under s 34 are on reasonable terms set by the authority (including rent after the initial 3-month residence window).

Compliance checklists, standardised claim forms and regular liaison with the Valuer-General reduce risk. Authorities should maintain precedent libraries for notices and deeds; owners should diarise all 28-, 45-, 60-, 90- and 120-day statutory deadlines. Both sides benefit from early engagement: the Act’s explicit preference for agreement (s 3(1)(e)) and pre-acquisition compensation agreements (s 63) can avoid the entire compulsory machinery.