Compensation is the amount of money paid to the landowner and other parties with an interest in the land as a result of the land being resumed.
If, on the date the resumption notice is published in the Queensland Government Gazette, you have an interest in the land resumed (for example, if you are the owner, lessee or licensee), you can claim compensation. You may be able to claim compensation for other types of interests you have in the land; you should obtain legal advice about your specific circumstances.
Shortly after the resumption notice has been published in the Queensland Government Gazette, the Coordinator-General (CG) will usually make an offer of compensation to you. If you are satisfied with the CG's offer, settlement will be arranged as quickly as possible, usually within a few weeks. If you do not agree with the offer made by the CG, you or your legal representative should lodge a written compensation claim - if you have not already done so - so that negotiations on the amount of compensation to be paid can commence.
Along with a copy of the gazette resumption notice, you will receive a compensation claim form to complete and return to the Coordinator-General (CG). If you do not wish to use this form, you can lodge your claim in any written format you choose, however it must comply with all of the requirements of section 19 of the Acquisition of Land Act 1967. It is recommended you engage a registered valuer and solicitor to help you prepare and lodge your claim (and to participate in any subsequent compensation negotiations). If you need to engage other specialist consultants, it is recommended you contact the relevant professional bodies, who will be able to provide you with referrals. For land resumed after February 2009, claimants must lodge their claims within three years of the publication of the resumption notice in the Queensland Government Gazette. If a claim is received after that deadline, it is at the CG's discretion whether to accept it or not.
If you engage a registered valuer and solicitor to prepare and lodge your claim on your behalf, reasonable fees incurred will be reimbursed as part of your overall compensation payout. There is no pre-determined amount as to what 'reasonable legal fees' are. The Coordinator-General (CG) determines whether or not a claim is reasonable by looking at a number of different factors, such as the complexity of the claim and the land interest that has been resumed. If you are concerned that the legal fees you are being charged may not be reasonable, the CG can give you an indication of fees paid for similar claims. We also recommend you ask your legal advisers for a fee estimate and to provide you with an indication of legal fees previously paid for similar claims. When choosing a valuer and solicitor, you should ensure that they have sufficient experience in dealing with compulsory land acquisition compensation claims. For more information, contact the Queensland Law Society and the Valuers Registration Board of Queensland.
Regardless of whether you obtain your own land valuation, the Coordinator-General (CG) will arrange for your property to be independently valued by a registered valuer. After your property has been resumed, the CG-appointed valuer will contact you to arrange an inspection of your property to assess the amount of compensation payable to you. The compensation payable is based on: the assessment of the property as it was on the date the gazette resumption notice was published; the principles set out in the Acquisition of Land Act 1967; and previous decisions of the Land Court of Queensland. In addition to the land value of your property, you may also be eligible to claim compensation for 'disturbance costs' you have incurred as a result of the resumption of the land. These disturbance costs are defined in the Acquisition of Land Act. Disturbance costs can include:
- legal costs, and other professional fees
- costs relating to the purchase of a replacement property
- removal and storage costs
- costs reasonably incurred to connect to any services or utilities upon relocating from the land resumed
- loss of profit or other economic losses resulting from the interruption to a business directly attributable to the resumption
- other financial costs that have been, or may be, reasonably incurred or that might reasonably be incurred, relating to the use of the land resumed, as a direct and natural consequence of the resumption of the land.
When assessing the compensation payable to a landowner who has had part of their land resumed, the CG will consider whether the exercise of any statutory powers by the CG caused 'injurious affection' to the landowner's remaining land.
In the case of Marshall v The Director General, Department of Transport (2001) 205 CLR 603, the High Court considered the meaning of 'injurious affection' for the purposes of s20(1)(a)(ii) of the Acquisition of Land Act 1967 (at the time of the High Court's decision, that section was numbered 20(1)(b)). In this case the High Court found that:
Damage for the purpose of s 20(1)(b) is not confined to physical damage to the remaining land. Injurious affection does not include damage resulting from the act of severing the land. That is a separate head of damage. But it includes any other injurious consequence, resulting from the exercise of a statutory power, which depreciates the value of or increases the cost of using the "other land". If the exercise of the power limits the activities on or the use of that land, interferes with the amenity or character of the land, deters purchasers from buying the land or makes it more expensive to use the land, the claimant is entitled to compensation for injurious affection.
Emotional distress and other health issues resulting from the resumption of land are not compensable.
Examples of the evidence the Coordinator-General (CG) requires in support of your compensation claim include invoices for professional reports or written expert opinions. A compensation claim cannot be considered without this evidence.
Yes. Following the lodgement of your compensation claim, you can make a written request for an advance payment against the compensation. The Coordinator-General (CG) will then pay you the compensation previously offered in writing to you or the amount the CG estimates the compensation should be (based on independent professional advice). You will receive the advance payment within 90 days of lodging a properly completed claim form and requesting the advance. If you do not agree with the compensation amount, you can nonetheless accept the advance payment. This advance payment in no way affects either party's right to negotiate further to reach agreement on the final amount of compensation, or to have the compensation amount determined by the Land Court of Queensland.
If you have a mortgage, the mortgagee (e.g. the relevant bank) is entitled to be paid the compensation (to the extent of the mortgage amount owing). A clearance from the mortgagee will be required prior to any compensation payment (including any advance) being made.
If you choose not to accept the Coordinator-General's (CG) offer of compensation, a representative of the CG will meet with you (and your legal representative, if applicable) to negotiate a settlement. These negotiations are usually treated as being 'without prejudice' to either party's claim or response - to allow the negotiations to be open and frank and improve the prospect of issues being resolved without the need for a hearing in the Land Court of Queensland. Without prejudice negotiations are generally inadmissible during future litigation, should it occur. These negotiations are also considered confidential and should not be disclosed to third parties.
If agreement on the compensation amount cannot be reached, either the Coordinator-General (CG) or you, as the claimant, can refer the matter to the Land Court of Queensland for a decision. The CG views the court as a last resort due to its very high financial cost to claimants and the state. The CG has an excellent record of settling matters through negotiation, with over 99% of matters settled this way. This can be a much more cost-effective way of resolving compensation matters for both parties.
Usually, you, the claimant, are responsible for the costs of any lawyers, valuers and other specialists you engage to prepare for a Land Court of Queensland hearing. However, in addition to deciding the final compensation amount payable, the court can award an amount for court costs to either the Coordinator-General or you. It is rare for one party to recover all of its court costs from the other party.
Yes. An easement is a set of rights to use a section of land in a particular way - the acquisition is not of land but of rights to use the land. Consequently, when assessing the compensation payable, the Coordinator-General considers how the use of those rights adversely affects your use of your land.
If the Land Court of Queensland determines the compensation amount, the court may require the amount to include the interest the landowner would have earned from the time their land was resumed to when compensation was settled (excluding any compensation paid in advance). The interest rates are determined by the court - they are not commercial rates - and are published regularly on the court's website. In cases not involving the court, the Coordinator-General will consider each claim on its merits and may, where appropriate, make allowance for interest in compensation offers.
The Australian Tax Office (ATO) website includes decisions as to whether GST applies to the compulsory acquisition of land. Generally, the resumption of land or easements is not considered to be a supply by the ATO and therefore compensation payments typically do not attract GST. For more information, visit the ATO website. Claimants should always obtain their own financial advice about tax liability.
Any taxes, rates and charges due and unpaid as at the date the land is resumed are the responsibility of the former landowner and may be deducted from the compensation payout.
You will be advised in writing should the Coordinator-General (CG) decide to discontinue the land resumption process or if the process lapses. You cannot claim compensation for any loss or damage resulting from being served with the Notice of Intention to Resume (NIR) or the discontinuance of the resumption. However, you can claim compensation for any costs or expenses you reasonably incurred after the NIR was served on you and for any damage to your land caused by the exercise of the CG's powers.