The process for the Queensland Government to acquire land will be shortened in certain circumstances
The Land, Water and Other Legislation Amendment Bill 2013 (Qld) was passed by the Queensland Parliament on 3 May 2013. The aim of the Act is to streamline regulatory processes within a number of Acts and Regulations, including the Acquisition of Land Act 1967 (Qld) (ALA). This article will deal with amendments to the ALA.
After the Bill receives Royal Assent (expected in the next week) the provisions dealing with the ALA will commence.
The resumption process for straightforward resumptions is set to be streamlined under new amendments to the ALA as part of the Queensland Government's push to reduce red tape and to build a four pillar economy.
New schedule for definitions
The numbers of words defined in section 2 will be increased and the all the definitions will move to a new Schedule 2. The current schedule, listing purposes for taking land, will become Schedule 1.
The new definition of "parcel", for the purpose of the meaning of multi-parcel purpose in section 3, was amended during the parliamentary process and the definition now includes "an easement". Parliament wanted to ensure the definition of parcel did not limit the broad interpretation of land in the Act (which includes an easement).
Relationship with other legislation
The streamlined taking of land processes will not apply to the taking of native title rights or land held under the Aboriginal Land Act 1991 or the Torres Strait Islander Land Act 1991.
Streamlining the taking of land
The Bill inserts a new section 9(7A) into the ALA that gives the relevant Minister the power to declare by government gazette that land is taken if:
- the objection period has lapsed and there are no objections; and
- if the land is being taken for a multi-parcel purpose, every other parcel required has already been taken under the ALA or is the subject of a "resumption agreement" or is the subject of a notice of intention to resume and the objection period has ended and no objections were received.
There has been an oversight in paragraph (b) above because there is no reference to a parcel being acquired outside of the ALA process. It is quite common for a constructing authority to purchase some land prior to a project by way of a negotiated purchase.
The benefit for constructing authorities being able to rely on the new section 9(7A) of the ALA is that it will shorten the process. It removes the Governor in Council step.
Streamlining the taking of land by agreement process under the ALA
Section 15 of the ALA provides a process for the taking of land by agreement.
Currently under section 15, where parties have agreed in writing that land will be taken, the constructing authority makes an application to the relevant Minister to take the land. Following approval by the Minister, the Governor in Council may declare by gazette notice that the land is taken.
The Bill repeals the whole of section 15 and replaces it with more prescriptive requirements. For example, the new section 15 identifies who must be a party to the agreement.
A section 15 agreement is now called a "Resumption Agreement".
One advantage of the new requirements is that a person with a lesser interest in land can give written consent to the land being taken in accordance with the resumption agreement (instead of having to be a party to an agreement). This may be beneficial for mortgagees of land who are often reluctant to sign a section 15 agreement.
A new section 15D allows the constructing authority to take the land by gazette notice in circumstances similar to the new section 9(7A) of the ALA. This bypasses the requirement to make an application to the Minister and for the land to be taken by the Governor in Council so will be even more attractive to a constructing authority.
Section 11 amendments to gazette resumption notices
The current section 11(1) and (1A) will be replaced and the whole section will be renumbered.
Simple amendments to a gazette notice can now be made by the relevant Minister or the constructing authority (if land taken under section 15 by the constructing authority).
Some provisions in section 11 have been removed. The removal of section 11(2) of the ALA is curious because many constructing authorities amend gazette resumption notices, and the removal of that provision may lead to confusion as to the impact of the amended notice.
The delegation power in section 36B of the ALA will be replaced by a new provision. The delegation power is relevant for the Minister for Natural Resources and Mines. The delegation power will be broader in one respect because it allows a subdelegation. The delegation power is narrower in another respect because no delegation is allowed if there was an objection to the notice of intention to resume. Bearing in mind the number of objections that are commonly received this could lead to an administrative burden for the Minister.
Transitional provisions for taking
Note that while there is a transitional provision for applications made under section 9 at the commencement of the amendments, there are no transitional provisions for resumption agreements under section 15. This means that constructing authorities will have to check their current signed section 15 agreements to determine whether they comply with the new requirements.
After the Bill becomes an Act it would be a good time to set aside your old ALA and refer to the updated one.
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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.