When Can the State Compulsorily Acquire Land?

Compulsory acquisition is the State taking land without the owner’s agreement. Division 5 of Part III of the Land Act 1996 sets out how, and section 53 of the Constitution sets the outer limits.

Section 12 — the three triggers

The Minister may, on behalf of the State, by notice in the National Gazette, declare that land is acquired by compulsory process for a public purpose specified in the notice:

1. (a) after the expiration of two months after service of a notice to treat; or
2. (b) at any time where, after diligent search and inquiry, he is satisfied the owner of the land cannot be located; or
3. (c) at any time after he has given a certificate under section 13(6) — a certificate that there are special reasons why the notice-to-treat section should not apply.

Land in respect of which a notice to treat has been withdrawn is excluded from the acquisition.

Section 12(2) — what publication does

That is a clean sweep. Leases, mortgages, easements, options, restrictive covenants, unpaid rates — all are swept off the land at the moment of publication. What the holders of those interests get instead is a claim for compensation.

Section 14 — interests become compensation claims

The interest of every person in land or a chattel to which a notice of acquisition applies is, on the date of acquisition, converted into a right to compensation under the Act.

Where what is acquired is a new easement, right, power, privilege or interest that did not previously exist, each person’s interest is converted into a right to compensation to the extent to which the interest is affected by the acquisition.

So the question after acquisition is never “can I get the land back?” It is “what am I entitled to be paid, and how do I claim it?”

Section 15 — notice to the owner

As soon as practicable after the date of acquisition, the Departmental Head must cause a copy of the notice of acquisition:

• (a) to be given to or served on the owner, on the occupier where different, and on any other person he has reasonable cause to believe has an interest;
• (b) to be published in a newspaper circulating in the area; and
• (c) to be affixed, if practicable, on a conspicuous part of the land.

Service is personal or by registered post to the last known address; failing that, on any person in occupation of the land.

For customary land, remember section 135: service may be effected on the Custodian for Trust Land, who must then take practicable steps to reach the landowners, post a copy on the land, and notify the area by any method by which it is customary to transmit news there.

Section 16 — registering the acquisition

Where registered land is compulsorily acquired, the Departmental Head lodges a certified copy of the notice of acquisition with the Registrar of Titles, who registers the acquisition as nearly as may be in the way dealings are registered, and gives effect to the notice as if it were a duly executed transfer of the land to the State.

The constitutional limits

Section 53 of the Constitution overlays the Act. Possession may not be compulsorily taken except in accordance with an Organic Law or an Act, and unless:

• the property is required for a public purpose or a reason reasonably justified in a democratic society, declared and described for the purposes of section 53 in an Organic Law or an Act; and
• the necessity for the taking affords reasonable justification for the resulting hardship to any person affected.

And just compensation must be made on just terms, giving full weight to the National Goals and having due regard to the national interest and to the person affected.