New Procedural Requirements for Land Authorities wishing to Acquire Land
The NSW Office of Finance and Services has released a circular identifying procedural amendments which acquiring authorities (such as local councils and state government instrumentalities), other than state owned corporations, are to abide by when acquiring land under the Land Acquisition (Just Terms Compensation) Act 1991 (the Act).
The new requirements stipulate that these authorities must now, when seeking to acquire land under the Act:
- ‘use all reasonable endeavours to have at least one face to face meeting with the land owner’; and
- ‘provide the land owner with a copy of the Land Acquisition Information Guide or an equivalent document.’
The intention behind the new requirements identified in the circular is to implement changes to improve fairness and transparency in the acquisition process. The new requirements are intended to support an object of the Act: to encourage the acquisition of land by agreement (s3(c)). This avoids the expensive and lengthy compulsory acquisition process.
Most authorities aim to acquire land by agreement as this process is much simpler, quicker and cheaper. The Department of Local Government’s (now Office of Local Government) ‘Guidelines for the Compulsory Acquisition of Land by Councils (June 2006)’ specify that councils make reasonable efforts to acquire the land by agreement (see [4.23]).
The new requirements make mandatory and provide greater structure around the agreement process. The Office of Local Government has announced that councils’ compliance with the new requirements is mandatory when seeking to acquire land under the Local Government Act 1993 or the Roads Act 1993.
Circulars, like guidelines, are not legally binding. However, given that a council is required to seek ministerial approval before it can compulsorily acquire land (see s187(2) of the Local Government Act 1993), if a council is not successful in reaching agreement with a landowner to acquire that persons land and wishes to proceed to acquire it by compulsory process, it may be that ministerial approval is not granted unless councils can demonstrate that these steps have been complied with.
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