Disturbance is a term used to refer to the economic loss that a
dispossessed owner suffers when required to vacate the land taken.
In Queensland, disturbance forms part of the assessment of
compensation under the Acquisition of Land Act 1967
(ALA). Section 20(1)(b) of the ALA indicates that,
in assessing the compensation to be paid, regard must be had not
only to the value of the land taken but also the claimant's
"costs attributable to disturbance."
A complete definition of the "costs attributable to
disturbance" is contained in section 20(5) of the ALA. It
legal costs and valuation or other professional fees relating
to the preparation of the claim for compensation;
costs associated with the purchase of a replacement property,
including stamp duty and financial costs associated with the
discharge of a mortgage and executing a new mortgage;
connection fees for services or utilities at a replacement
loss of profits resulting from interruption to the
claimant's business; and
other economic losses and costs (for instance, the costs of
school uniforms for children enrolled in a new school because of
relocation from the land taken).
Any disturbance items claimed must be "reasonably
incurred". That test involves two components – first,
whether the costs have actually been incurred (or will be incurred)
by a claimant, and second, whether the costs are reasonable. That
test of "reasonableness" involves looking at what a
reasonable person in the position of the claimant would have done,
or caused to be done. The fees and charges for the work must also
be reasonable. In preparing or assessing a claim for compensation,
it is important to justify or seek justification as to the
disturbance items claimed. This is usually done by providing
invoices for each disturbance item. Where the costs are
anticipated, or estimated, two or more quotes should be
A second check is that the economic losses claimed must not be
too remote and must be the direct and natural consequence of the
taking of land. This test applies particularly to claims for
business loss, financial costs associated with the use of the land
taken and other economic losses and costs incurred as a result of
the taking of the land. The Land Appeal Court has indicated that
attention must be paid to the nature and degree of any causal
relationship between the taking of the land and the claimed loss.
Questions include whether or not the claimed loss was an immediate
consequence of the taking of the resumed and or whether a number of
intervening events incurred before the loss was suffered.
Ultimately, a judgment is required about whether or not the loss is
Finally, unlike compensation for the value of land taken, the
assessment of compensation for disturbance is not fixed by the date
of acquisition. By their very nature, expenses associated with
disturbance items are often incurred after the land is taken.
Reaching agreement about disturbance items can assist with early
resolution of claims for compensation. Finding common ground is
important because, in complex cases where the claim for
compensation is referred to the Land Court for determination,
disputes about disturbance items can significantly extend the
length of a trial.
Warranties can be risk-shifting mechanisms when the party giving the warranty is not the party at fault for the defect.
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”
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).