What Happens to Land the State No Longer Needs?

Land is acquired for a stated public purpose. Sometimes the purpose changes, or lapses. Division 9 of Part III of the Land Act 1996 deals with what may then be done with it.

Section 48(1) — the general rule

So for land that was not customary land before acquisition, the stated public purpose does not bind the State afterwards. Once acquired, it is simply Government land, available to be leased for any purpose the Act allows.

That is worth knowing for a former owner: the fact that land taken for a road is later leased for a supermarket does not, by itself, make the acquisition unlawful or give rise to a right to have the land back. The remedy for an owner lies in compensation, assessed at the date of acquisition.

Section 48(2) — the seven-year rule for former customary land

Different rules apply where the land was customary land immediately before it was compulsorily acquired. Where:

• (a) the whole or part of land that was customary land immediately before acquisition is no longer required for the purpose for which it was acquired; and
• (b) within seven years after the date of acquisition it is proposed to grant a State lease for a purpose other than the purpose for which the land was acquired,

then the Minister should, where practicable, unless in his opinion it is undesirable to do so, declare the land to be customary land under section 132 — returning it to customary tenure.

Where he does so, section 133(3) does not apply to the land or the declaration, so the usual consequences for trust land do not follow.

Section 48(3) — substantial improvements

Subsection (2) does not apply where the State or any other person has, since the date of acquisition, made substantial improvements to the land.

So once buildings, roads or other substantial works have gone in, the seven-year return provision is spent, regardless of whether the original purpose was ever fulfilled.

Section 48(4) — purchasers need not inquire

This is a title-protection provision of the same family as indefeasibility under the Land Registration Act. A lessee taking from the State does not have to investigate whether the Minister properly considered returning the land, and cannot lose the lease because he did not.

The practical consequence: any challenge based on section 48(2) has to be brought before a third party takes an interest, not after.

Why the timing matters

1. Land is acquired for a stated purpose, and the Gazette notice records the date.
2. If the purpose falls away, the seven-year window from that date is when section 48(2) can operate.
3. If substantial improvements are made, subsection (2) ceases to apply.
4. If the State grants a lease to someone else, section 48(4) protects that person’s title.

Former customary landowners who want land returned should therefore act early, and in writing, once it becomes apparent the land is not being used for the purpose for which it was taken.

Related: reservation of land

Part V allows the Minister, by notice in the National Gazette, to reserve from lease or further lease either Government land or land that is the subject of a State lease. See what is reserved land?