Australia: Western Australian Supreme Court finds compulsory acquisition notices invalid

Key Points:

Agencies taking land under compulsory acquisition legislation should ensure that they include a detailed description of the land they intend to resume in order to ensure that persons who have or may have an interest in the land are able to engage in the objection process fully informed.

A recent decision of the Western Australian Supreme Court shows that it is critical for agencies to ensure that they properly comply with all procedural aspects of land acquisition legislation when seeking to compulsorily acquire land.

In McKenzie v Minister for Lands [2011] WASC 335 (6 December 2011), Chief Justice Martin found that three notices of intention to take land (notices) did not contain information which would enable the boundaries of the land intended to be acquired to be identified. As a consequence, the Court found that the notices did not comply with the Land Acquisition Act 1977 (WA) and were invalid.


Significant reserves of natural gas were discovered in the Browse Basin, off the coast of the Kimberly region of WA. In December 2008 the WA Government announced that the area in the vicinity of James Price Point would be the preferred location to establish processing facilities for harvesting liquefying natural gas from the Browse Basin.

All of the land in the vicinity of James Price Point is unalienated Crown land. The Goolarabooloo and Jabirr Jabirr people have claimed native title rights over the land as part of a claim covering a larger area.

On September 2010, the Minister for Lands issued the notices to the Kimberley Land Council, which represented the Goolarabooloo and Jabirr Jabirr people. The notices related to land around James Price Point to be used for the construction of a gas processing plant, workers' accommodation, a port, roads, pipelines and for light industrial purposes.

The notices

At the date the notices were issued, the State was not able to identify the exact land required because of insufficient heritage surveys and discussions between various parties. The notices identified the location of a larger area of land from which the interests in the smaller area would be acquired, but without identifying the location of the smaller area beyond the fact that it would be somewhere within the larger area.

Some members of the Goolarabooloo/Jabirr Jabirr native claim group objected to the notices on the ground that they were invalid because they did not describe the land required and in particular, did not identify the location and boundaries of the land which was proposed to be acquired. The Minister considered the objections and decided on 15 April 2011 that the notices did not need to be amended.

Validity of the notices

Section 171(1)(a) of the Land Acquisition Act provides that a notice of intention "must include a description of the land required".

The Court found that there were three reasons why the requirement for "a description of the land required" is a condition of the validity of a notice of intention to take issued pursuant to the Land Acquisition Act:

  • the use of the imperative expression "must" in section 171(a);
  • the fact that section 171(2) provides that a notice of intention to take issued in good faith is not invalidated by reason only that it contains an error or omission in the information required by section 171(1)(d), (e) or (f) but makes no reference to the requirement in section 171(1)(a); and
  • the significant consequences which flow from the issue of a notice of intention.

The Court then found that a consideration of the purpose and object of the legislative requirement in the Land Acquisition Act that a notice include a description of the land required compels the conclusion that the notice contain sufficient information to inform any reader of the boundaries of the land to be acquired.

The Court set out a number of provisions in the Land Acquisition Act which it considered required the notice to describe the boundaries of the land to be acquired, including the following:

  • section 170 of the Land Acquisition Act requires the Minister to serve a notice of intention to resume land on the proprietors and occupiers of any land affected by the notice. The precise content of that obligation can only be ascertained and resolved if the boundaries of the land are known;
  • section 175 of the Land Acquisition Act provides rights of objection to, amongst others, the proprietors and occupiers of the land intended to be resumed. Whether or not a particular individual has a right of objection may, in a particular case, depend upon the boundaries of the land to be acquired;
  • section 175 of the Land Acquisition Act also requires an objector to specify their grounds of objection. Unless the objector knows with certainty the land which the Minister intends to acquire, it will be very difficult to include all relevant grounds of objection, and unreasonable to expect the objector to be able to do so;
  • section 177 requires that a taking order issued by the Minister must be "consistent with the notice of intention". Unless the notice of intention identifies the boundaries of the land which it is intended to acquire, it is difficult to see how the question of whether any particular taking order is consistent with the notice of intention could be definitively resolved.

The Court rejected the Minister's argument that the degree of specificity required in a notice of intention depends on the location of the required land. The Minister had submitted that the land in the vicinity of James Price Point is very different in character to closely developed urban land, being remote, undeveloped and unallocated Crown land. The Minister argued that these characteristics of the land justified a level of uncertainty in the description of the land which could not be justified in an urban environment.

The Court held that there is no reason to suppose that the precise location of the boundaries of the land in respect of which it is proposed to extinguish native title rights in the vicinity of James Price Point is any less important to the group who claim to have a bundle of rights associated with that title than the precise location of the boundaries of land proposed to be acquired would be to those with an interest in that land in an urban environment.

The Court found that the notices did not contain "a description of the land required" as was necessary under section 171(1)(a) and that the notices were invalid.

Implications for other jurisdictions

Compulsory acquisition legislation is not identical in each State and Territory, however all legislation requires the notice to contain a description of the land. This decision is an example of a court considering mandatory requirements in the context of the rest of the legislation.

Agencies taking land under compulsory acquisition legislation should ensure that they include a detailed description of the land they intend to resume in order to ensure that persons who have or may have an interest in the land are able to engage in the objection process fully informed.

You might also be interested in ...

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.