Land resumption: Your objection and compensation rights.

If your property is close to a construction zone or proposed construction zone, it might be targeted for resumption. You, as the landowner, will receive a Notice of Intention to Resume (NIR) from the relevant body seeking to resume your land. If you and the constructing authority agree to the acquisition, the taking of the land is effective from the date the notice for the taking of the land is published in the Queensland Government Gazette.

In some cases, the constructing authority may temporarily occupy your land for the purpose of constructing, maintaining or repairing any works (to do things like erect workshops or sheds, or make temporary roads or car parks). You will be notified of this not less than 7 days prior and you will be advised for how long the occupation is expected to continue. You can lodge a claim for compensation at any time during the occupation and up to 3 months after by giving notice to the constructing authority about a compensation claim.

If you do not agree to the resumption, you can object. You have 30 days from the date of delivery of the NIR to object to the prospective resumption. Grounds for objection could be that the development is unwarranted; the decision to develop is biased; or the development is better located in a different area. You will need evidence to support these grounds of objection. The constructing authority will then assess your objection. It is vital that you obtain legal advice to prepare an objection as your grounds for objection must state the facts and circumstances you will rely on should the matter proceed to Court.

Compensation covers:

• The value of the land resumed;
• Damage or loss caused by the severance of a part/s of a property;
• Damage to other land caused by use of statutory powers; and
• 'Disturbance costs' – defined in section 20 of the Acquisition of Land Act 1967 (basically, all the costs incurred as a consequence of the taking including reasonable costs of obtaining appropriate advices from consultants eg legal, valuation, town planning etc.

Calculating the value of the land resumed and the consequential losses requires expert assessment of the zoning of the land to identify prospective uses which may hold the highest and best use eg. a lot with a single residential house on it may be zoned for medium density residential, meaning the lot could have a block of units on it, not just a single house. This prospective use therefore has a higher value than the current use and the owner of the land should be compensated for the higher and better use value.

You will be liable for discharging any mortgage on the property that is resumed, and any taxes, rates and charges overdue at the time the land is resumed may be deducted from the compensation amount. Should you choose to challenge the resumption in the Land Court, you may need to pay for your costs of litigation. A Claim for Compensation referred to the Land Court should include a claim for compensation for:

• legal costs and valuation or other professional fees reasonably incurred in relation to the preparation and filing of the claim;
• costs and fees associated with establishing a new mortgage for the purchase of a new property;
• stamp duty reasonably incurred for the purchase of new property, equivalent to the value of the property resumed;
• legal costs associated with the purchase of a new property;
• financial costs reasonably incurred during the purchase of a new property;
• removal and storage costs associated with relocating from the resumed land;
• costs associated with connecting services to the new property;
• an amount to compensate the owner (freehold; leasehold) for any interruption to the running of a business as a direct and natural consequence of the resumption; and
  
  
• any economic losses incurred by the property owner due to having to move properties (eg the cost of new school uniforms).

A valuer will assess the market value of the property to reflect what the market would be willing to pay for your land or business on the date of acquisition based on the highest and best use of the land. This valuation includes any fixed improvements like houses, sheds or fences. Reasonable costs for items identified above at point 4 are also included in determining the amount of compensation that may be claimed. If you want to refer the claim to the Land Court for determination (ie where a negotiated result can't be achieved) the Claim must be filed within three years of the date the resumption was published in the Queensland Government Gazette.

If you don't want to accept the offer you can negotiate with the constructing authority for a better rate of compensation (or engage a lawyer to do that on your behalf). If negotiations cannot be reached the matter can be referred to the Land Court of Queensland for a decision. At that time, the constructing authority will pay an "Advance" being its assessment of the compensation and Disturbance amount payable. Most disputes are resolved via negotiation as referral to the Land Court can be expensive for both the land owner and the constructing authority. The Land Court of Queensland has jurisdiction to determine complaints unresolved by negotiation of mediation.

If you are happy with the constructing authority's offer, you can accept the compensation claim by writing to the authority. The agreement will be legally binding and you will need to sign various documents before settlement is arranged.

If your land has been identified as requiring resumption in preliminary plans but you have not received a NIR you do not have rights to compensation if the project area changes and your property will no longer require resumption. It is, however, rare for an authority to issue a NIR to a property owner if the project will not be going ahead as per the final plans.

Most government funded works for a public purpose are publicly notified before the works commence. Searches can be made of most authorities (eg Councils, Main Roads, Q'ld Rail). You should check the plans associated with any prospective works and assess if you think your property might be affected by the works. At that point it may be wise to contact a lawyer to discuss your options on the need to formally lodge an objection.