Changes to acquisition of land act

19 May 2009 Topics: Property and planning law

Significant changes to the Acquisition of Land Act 1967 commenced in February 2009.

Some important changes include the following.

  1. A claim for compensation may now only be served on the resuming authority within three years after the day the land was taken. The legislation did not previously stipulate a time limit within which to claim compensation.However, new section 19(4) permits the resuming authority to accept, and deal with, a claim for compensation served by a claimant more than three years after the day the land was taken if it “is satisfied it is reasonable in all the circumstances to do so”. If the resuming authority does not accept a claim served more than three years after the day the land was taken, the claimant may apply to the Land Court to decide whether it is reasonable to accept the claim.
  2. New section 18(3A) provides that if a person’s investment property is resumed, compensation for costs attributable to disturbance are payable to the person for the purchase of land by the person to replace the investment property. In other words, if a landowner’s investment property is resumed, that landowner will now be entitled to claim legal costs, stamp duty, search fees and other expenses incurred in acquiring a replacement investment property. Until that change, the Queensland Land Court and the Land Appeal Court had followed English court decisions that held that a person whose principal place of residence is resumed is entitled to be reimbursed the stamp duty and legal costs of acquiring a replacement residence, but a person whose investment property is resumed is not entitled to reimbursement of stamp duty, search fees, legal costs and other expenses incurred in acquiring a replacement investment property. The rationale was that the owner of the investment property could have invested in other investments that did not involve those costs, such as shares, and it would be unreasonable to require the resuming authority to pay the costs due to that choice of investment. Many owners of resumed investment properties were aggrieved by those decisions, and disappointed to discover that they were not entitled to reimbursement of the considerable costs of replacing their investment property. This change is very welcome.
  3. New sections 12(12) and (13) say the making of a claim for compensation for common property under the Body Corporate and Community Management Act 1997 does not stop the owner of a lot making a claim for compensation for damage suffered by that lot owner as a result of the taking of the common property and the affect of the taking on the owner’s lot.
  4. New section 14(2A) states that, in assessing compensation payable to an owner of resumed land, a contract, licence, agreement or other arrangement entered into in relation to the land after the notice of intention to resume was served on the owner must not be taken into consideration if it was entered into for the sole or dominant purpose of enabling the claimant or another person to obtain compensation for an interest in the land created under it.

Many of the changes to the legislation are welcome, particularly the right to claim the costs and duty incurred in replacing an investment property, but all landowners should be aware of the new three-year limitation period and ensure that their claim for compensation is lodged within that timeframe to avoid a potentially expensive and uncertain application to the Land Court for an extension of time.



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