The Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms) is a statutory process for empowered authorities to acquire any interest in land for a public purpose. Section 11 of Just Terms provides for a Proposed Acquisition Notice (PAN) to be issued to parties who have a statutory right to be notified and a right to claim compensation when land is being compulsorily acquired. The Department of Planning, Industry & Environment, Crown lands (the department) is responsible for the state’s interest in land administered under the Crown Land Management Act 2016.
The department administers Crown land on behalf of the State of New South Wales. The department’s role is to represent the registered owner’s interest in Crown land that is subject to compulsory acquisition.
The Strategic Sales and Disposals Unit undertakes the administration of compulsory acquisition notifications affecting Crown land on behalf of the department.
Upon receipt of a notification from an authority, and payment of the administration fee, an initial assessment is undertaken. When appropriate, the department will provide a letter of “no objection” to the receipt of a PAN to the acquiring authority within 6-8 weeks of notification.
A notification can be made to the department to compulsory acquire any interest in land as defined by the Crown Land Management Act 2016. This includes Crown land of any reserve purpose, Travelling Stock Reserves (TSRs), Crown roads and unidentified Crown land, substratum and stratum lots, easements and commercial leases.
The provisions contained in Just Terms can be utilised by the following entities:
- a statutory body representing the Crown,
- a council or joint organisation within the meaning of the Local Government Act 1993, or
- any other authority authorised to acquire land by compulsory process.
An organisation that can compulsorily acquire land is referred to in Just Terms as an Acquiring Authority (authority). Just Terms does not empower an authority to make a compulsory acquisition and cannot be relied on by the authority in isolation. The authority must be granted powers of compulsory acquisition by another accessible legislation. That legislation is referred to as the enabling act and this act must be identified on the notification to the department. If the authority is unsure as to its access to an enabling act, the authority should seek its own legal advice.
The department will provide a letter of “no objection” to authorities on notification, where it is deemed appropriate to do so. This letter confirms that after review, the department does not object to receiving a PAN for the proposed compulsory acquisition under the provisions of section 11 of Just Terms for the registered owner’s interest in the land only.
The department is not empowered to make agreements on behalf of all possible stakeholders in Crown land and therefore is unable to provide agreement (or consent) as required in accordance with Section 29(4) for acquisitions by agreement. Examples of interests held by other stakeholders include but are not limited to, interest granted through the Native title Act 1993, Aboriginal Land Rights Act 1983, Local Land Services Act 2013 and Real Property Act 1900.
To determine if an Aboriginal Land Claim (ALC) impacts Crown land proposed for an acquisition the authority should undertake the following:
- Request a search of the Land Claim Register (PDF, 124 KB) from the Office of the Registrar Aboriginal Land Rights Act 1983. This search is free.
- where an undetermined ALC is found, seek written confirmation from the lodging Local Aboriginal Land Council (LALC) of withdraw of the claim or excision of the area from the proposed acquisition
- provide the written confirmation to the department with the acquisition notification.
Notifications received for acquisitions subject to an undetermined ALC cannot be processed and will be returned to the authority.
A PAN should not be issued to the department for land subject to ALC until the lodging council agrees to withdraw the claim or excise the area of proposed acquisition from the claim.
Pre-acquisition procedures of Just Terms requires the authority to be satisfied that all interests in the land have been identified. The department can assist in providing certain information from its data bases on some of the current users of Crown land however the authority should rely on its own enquiries to make sure it meets the requirements of the legislation.
The information the Strategic Sales and Disposals Unit can provide is limited to some information for Crown land managers and tenure holders.
The authority should make its own enquiries with the Office of the Registrar, Aboriginal Land Rights Act 1983 to establish if the land is subject to an Aboriginal Land Claim.
Detailed Status information to establish ownership of land should be obtained through an Information Broker or via the department’s Status Branch.
Information for Native Title Claims, Native Title Determinations & Indigenous Land Use Agreements can be obtained by request from The National Native Title Tribunal via a Geospatial Search Report.
Yes. Approximately half of NSW is currently under native title claims. A geospatial search report from the National Native Title Tribunal must be included with the Application for Acquisition. It is recommended that authorities make periodic checks with the National Native Title Tribunal (NNTT) during the acquisition process as the status of these claims may change. The report will identify the following; Native Title Claims, Native Title Determinations & Indigenous Land Use Agreements. For more information on Native title and to order reports.
No. Crown land that has not been made subject to an application to the NNTT will not appear on the geospatial reports. Only Crown land that is subject to Native Title Claims, Native Title Determinations & Indigenous Land Use Agreements will appear on the reports.
All Crown land is considered to be subject to Native title unless a determination of Native title has been made by the Federal Court.
Further information on native title can be found on the department’s web site.
It is the department’s preference for any acquisition of Crown land to be undertaken by compulsory process, that is, by the issue of a PAN in accordance with Sec 11 of Just Terms to all potential interest holders. The department will consider proposals to reach agreements on altered PAN notice periods or compensation payments on a case by case basis.
Compensation is determined at market value, either by agreement between the department and the authority or by determination of the Office of the Valuer General. Market value is determined by a registered valuer in accordance with Section 55 of Just Terms or Treasury Directions for transfers of realty between government agencies.
Compensation may be negotiated with the department for the registered owner’s interest in the land. Negotiation of compensation should commence prior to the issue of the PAN and can continue up to the notification in the Government Gazette. Offers of compensation can be made for the registered owner’s interest to the department. This offer must be supported by a recent valuation report compiled by an Australian Property Institute Certified Practising Valuer.
The authority is required to negotiate with all interest holders independently. Should an agreement not be reached with any one of the interest holders, compensation for the acquisition will be determined by the Valuer General.
The authority is encouraged to contact the department in the first instance should it wish to consider negotiation of compensation.
The total amount of compensation becomes due at the date of acquisition and must be paid to the department within 28 days of the acquisition being notified in the Government Gazette. Statutory interest will start to accrue after notification in the Government Gazette.
Tax invoices are not issued by the department at the date of gazettal without prior arrangement.
Statutory interest is not a fee imposed by department but forms a part of the provisions of Just Terms. Payment of statutory interest is mandatory to comply with Just Terms. In certain circumstances relating to the department’s system/data/staff/processing discrepancies, agreement to the waiver or reduction of statutory interest will be considered in line with Annexure B of the departments financial concessions policy (IND-O-254). Before the department can consider a waiver of Statutory Interest, the amount of determined or agreed compensation must be paid in full.
The overarching object of Just Terms is to guarantee that when land is compulsorily acquired, the amount of compensation will be not less than the market value of the land. The department does not hold delegation to accept compensation that is less than market value for compulsorily acquired Crown land.
The acquisition must be gazetted between 90-120 days of the PAN being issued unless otherwise agreed. The PAN is considered withdrawn if the land is not gazetted within 120 days of the notice. Shorter or extended notice periods are available by negotiation.
Should an alteration to the PAN period be desired, all other PAN recipients must first agree before the request is made to the department.
The authority cannot commence construction or any works on land subject to proposed acquisition until such times as the acquisition has been notified in the Government Gazette.
Should the authority wish to obtain access to, or construct on the land whilst the land is held in the Crown estate, the authority should seek to contact the relevant Crown lands Regional Services office on 1300 886 235 to discuss available options.