Owner
There are many ways that a government agency may restrict your use and development of your property...
There are many ways that a government agency (“Authority”) may restrict your use and development of your property, some of which will give rise to compensation claims when you suffer financial loss or incur expenses which arise as a natural, direct and reasonable consequence of the action of the Authority.
Whilst not intended to be an exhaustive list, we detail some of the more common acts of an Authority which may require our legal advice on your rights and obligations.
- An Authority wants to enter your property to inspect, temporarily occupy or use part of it. You wish to explore your rights.
Hypothetical fact situation
- Saxon owns a property on the highway.
- The road authority wants a strip of Saxon’s land to widen the highway.
- The road authority wants to inspect the property to survey, take soil tests and check for native vegetation and aboriginal artefacts.
- Saxon has short term concerns about the impact of the inspection on his activities and longer term concerns about litter and noise from the widened highway.
If your situation is similar to Saxon’s, can you answer these questions?*
- Do you know your rights and obligations which arise from these circumstances?
- Do you have any entitlements to compensation?
- How is a claim for compensation made?
* Ideally, you should not engage with the Authority until you are fully informed on these issues.
How can we help?
We can help by:-
- Advising you of your rights and obligations;
- Ensuring the Authority complies with its statutory obligations by giving proper written notice before its representatives enter your property;
- Identifying the precise area of interest to the Authority;
- Seeking clarification of the purpose for the inspection, temporary occupation or use contemplated by the Authority and the potential timing for any future compulsory land acquisition; and
- Explaining the circumstances which may give rise to a claim for compensation and the role to be played by appropriate experts and us in the formulation and conduct of such a claim.
Once you are fully informed, we are able to manage any course you wish to pursue.
- You are proposing to sell your property which is affected by one of the following:
- a Public Acquisition Overlay (“PAO”) in your municipality’s planning scheme;
- a proposal by an Authority for a purpose in pursuit of its functions (“Public Use Proposal”);
- a public purpose designation in the Precinct Structure Plan (“PSP”) of your municipality’s planning scheme; or
- notification of intention to amend the Planning Scheme to include land in a PAO or a designation in the PSP.
You are concerned that the value of your property has fallen as a result of the Authority’s actions.
Your rights to claim compensation for “loss on sale” arise under the provisions of the Planning and Environment Act 1987 which require a loss to be a natural, direct and reasonable consequence of the property being affected by the Authority. Attempting to sell your property without a full understanding of your rights and obligations may prevent you from seeking compensation and potentially expose you to a claim for damages from an aggrieved purchaser.
We recommend that you do not sell your property, or even offer it for sale, without first consulting us. To proceed without legal advice may prejudice your right to claim compensation. We are able to:-
- Advise you of your rights under the Planning and Environment Act 1987, including claiming your legal costs.
- Assist you in following the correct procedure to protect your entitlements and not expose you to any claims.
- Assist you in retaining a real estate agent and a valuer with appropriate experience. The process is complicated and beyond the range of experience of most agents and valuers.
- Manage your claim for compensation.
We now categorise the usual circumstances where we have given advice on the effect of an Authority’s actions on a client’s property before listing it for sale:-
Public Acquisition Overlay
2.1 A PAO affected your property when you purchased it:-
First Example
You were aware of the effect of the PAO (or the existence of a prior compensation claim) when negotiating to buy your property but the price paid by you did not reflect the effect of the PAO on the development and use of your property.Click here for Hypothetical Fact Situation
Second Example
You were aware of the effect of the PAO (or the existence of a prior compensation claim) when negotiating to buy your property; hence, the price paid by you did reflect the effect of the PAO on the development and use of your property.Click here for Hypothetical Fact Situation
Third Example
You were unaware of the effect of the PAO (or the existence of a prior compensation claim) when negotiating to buy your property; hence, the price paid by you did not reflect the effect of the PAO on the development and use of your property.
Click here for Hypothetical Fact Situation
2.2 A PAO affecting your property was introduced into the planning scheme after you purchased it.
Click here for Hypothetical Fact Situation
Public Use Proposal
2.3 There is no PAO affecting your property in the planning scheme but you have become aware of a Public Use Proposal which may require all or part of your property.
Click here for Hypothetical Fact Situation
Precinct Structure Plan
2.4 There is no PAO affecting your property in the planning scheme but the whole or part of your land has been designated for a public purpose in a PSP.
- You are proposing to retain your property which is affected by one of the following:
- a Public Acquisition Overlay (“PAO”) in your municipality’s planning scheme;
- a proposal by an Authority for a purpose in pursuit of its functions;
- a public purpose designation in the Precinct Structure Plan (“PSP”) of your municipality’s planning scheme; or
- notification of intention to amend a Planning Scheme to include land in a PAO or a designation in the PSP.
You are concerned that the value of your property has been adversely affected by an Authority’s actions as it may no longer be possible to obtain a planning permit to develop and/or use your property as previously permitted under the planning scheme.
Your rights to claim compensation arise under the compensation provisions of the Planning and Environment Act 1987 which require a refusal to be given to an application for a planning permit on the ground that the land is or will be required for a public purpose.
We recommend that, if you are aware of an Authority’s intentions, you do not make an application for a planning permit without first consulting us. To proceed without legal advice may prejudice your right to claim compensation. We are able to:-
- Advise you of your rights under the Planning and Environment Act 1987, including claiming your legal costs.
- Assist you in following the correct procedure to protect your entitlements.
- Assist you in retaining a town planner, valuer and other experts, where necessary, with appropriate experience. The process is complicated and beyond the range of experience of some town planners and some valuers.
- Manage your claim for compensation.
We now categorise the usual circumstances where we have given advice on the effect of an Authority’s actions on a client’s property before the client has sought a planning permit:-
Public Acquisition Overlay
3.1 A PAO affected the Property when you purchased your property:-
First Example
You were aware of the effect of the PAO (or the existence of a prior compensation claim) when negotiating to buy your property but the price paid by you did not reflect the effect of the PAO on the development and use of your property.
Click here for Hypothetical Fact Situation
Second Example
You were aware of the effect of the PAO (or the existence of a prior compensation claim) when negotiating to buy your property; hence, the price paid by you did reflect the effect of the PAO on the development and use of your property.
Click here for Hypothetical Fact Situation
Third Example
You were unaware of the effect of the PAO (or the existence of a prior compensation claim) when negotiating to buy your property; hence, the price paid by you did not reflect the effect of the PAO on the development and use of your property.
Click here for Hypothetical Fact Situation
3.2 A PAO affecting your property was introduced into the planning scheme after you purchased your property.
Click here for Hypothetical Fact Situation
Public Use Proposal
3.3 There is no PAO affecting your property in the planning scheme but you have become aware of a Public Use Proposal which may require all or part of your property.
Click here for Hypothetical Fact Situation
Precinct Structure Plan
3.4 There is no PAO affecting your property in the planning scheme but the whole or part of your land has been designated for a public purpose in a PSP.
- Compulsory land acquisition is imminent
An Authority advises its intention to compulsorily acquire the whole or part of your property. You wish to know your rights and determine how best to pursue
compensation. This leads to a number of different scenarios with potentially different rights and compensation outcomes.4.1 An Authority gives initial notice of its intention to compulsorily acquire the whole or part of your property.Prior to this advice, you had no inkling of the Authority’s proposal.
Click here for Hypothetical Fact Situation
4.2 An Authority has served on you a Notice of Intention to Acquire formally advising you that it intends to compulsorily acquire all or part of your property, whether freehold or easement.
- Compulsory land acquisition has commenced
An Authority has served a Notice of Acquisition compulsorily acquiring all or part of your property, whether freehold or easement. You wish to explore your rights and determine how best to pursue compensation.
5.1 An Authority has published a Notice of Acquisition to acquire all or part of your property (whether freehold or easement) and has made or is about to make an offer of compensation.
Click here for Hypothetical Fact Situation
5.2 The offer of compensation for the compulsory land acquisition of your property by the Authority is insufficient for you to purchase a replacement residence.