Compulsory acquisition of land
In Western Australia, a government agency can enter onto and take privately owned land for public works (for example, to build a road, school or hospital).
The land may be acquired by the government agency either by the agreement of the owner, or if the owner does not agree, then by compulsory acquisition.
The process by which a government agency may take privately owned land is governed by Part 9 of the Land Administration Act 1997 (WA) (“Act”).
Acquisition by agreement
Where the land is to be taken by agreement, then on commencing negotiations with the owner, the government agency must give the owner a statement in an approved form setting out the procedures under the Act, including as to the taking of the land and the payment of purchase money or compensation for that land.
A written agreement is then prepared, which specifies the payment that the government agency is prepared to make for that land, which may be in the form of either a sum of money or a grant of an interest in similar land that is owned by the government agency.
The agreement should also provide for reimbursement of the owner’s costs to obtain a valuation of the land.
Acquisition without the owner’s agreement
If the owner does not agree to sell the land to the government agency, the government agency may take the land in accordance with the procedures set out in the Act.
The process for taking the land without the owner’s consent is essentially as follows:
- A notice of the government’s intention to take the land (called a Notice of Intention) is issued by the relevant Minister.
- A copy of the Notice of Intention must be served on the owner of the land, as well as on any tenant on the land, together with notice of the procedures for the taking of the land and payment of compensation.
- The Notice of Intention must be published at least once in a daily newspaper circulating throughout Western Australia (such as The West Australian).
- A copy of the Notice of Intention is also sent to the Registrar of Titles who must register the Notice of Intention against the certificate of title of the land.
- If the owner objects to the taking of the land, and the objection does not relate to the amount of compensation proposed to be paid under the Notice of Intention, the owner may serve a written objection on the Minister. The objection must be lodged within 60 days after the registration of the Notice of Intention by Landgate.
- If an objection is made, the Minister must consider the objection and decide either to uphold the Notice of Intention, or to cancel or amend the Notice of Intention.
- If the owner does not make an objection within 60 days after the registration of the Notice of Intention, or if the Minister decides to uphold the Notice of Intention after having considered an objection, the Minister may make a “taking order” in accordance with the Notice of Intention.
- The taking order will then be registered by Landgate, and the owner’s rights to the land will be extinguished.
If land is taken by a government agency, the owner is entitled to compensation under the Act.
If the government agency takes the land with the agreement of the owner, the compensation will form part of the agreement.
If the government agency takes the land by compulsory acquisition, the owner must make an application for compensation within 6 months of the registration of the taking order. The owner’s claim for compensation will be dealt with as follows:
- The owner must serve a claim for compensation in the approved form setting out various information as stipulated in section 211 of the Act.
- The government agency will then, within 90 days of service of the owner’s claim, provide the owner with a report about the value of the property and an offer of compensation with respect to the property.
- If the owner does not accept the offer, the owner must reject the offer within 60 days after service of the offer. If the owner does not formally reject the offer within this time, the owner will be taken to have accepted the offer.
- If the owner rejects the offer, the owner may commence proceedings for compensation. must institute an action for compensation or refer the claim for compensation to the State Administrative Tribunal within 6 months of service of the notice of rejection.
How Douglas Cheveralls Lawyers can assist
The compulsory acquisition process prescribed by the Act is technical and requires the owner to do various things by certain times, to ensure that the owner’s rights are protected.
The experienced team at Douglas Cheveralls Lawyers can assist you with throughout the process, to ensure that if your land is taken by a government agency, you are adequately compensated.