Publications / Local Government

13 Aug 13
Procedure is paramount in compulsory acquisitions

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Two recent cases serve as reminders for those involved in compulsory acquisition matters to scrutinise their obligations under the Acquisition of Land Act 1967 (Qld) (ALA), including matters which appear to be only administrative in nature.

Lipvosek v Brisbane City Council

In Lipvosek v Brisbane City Council (2013) QSC 185, the Supreme Court decided a judicial review application challenging Council’s decision to compulsorily acquire land for ‘environmental purposes’ under the ALA.  The Court found the Council’s decision to be invalid because the Councillors, who ultimately made the decision, failed to duly consider the objections to the taking.

As is the case with the majority of opposed takings, an objections hearing was heard by a delegate of Council.  The delegate’s report was given to Council’s Civic Cabinet which provided a recommendation to the Council meeting at which the decision to take the land was made.  The Civic Cabinet’s recommendation did not include any actual consideration of the substance of the objection grounds. 

Section 9(2) of the ALA (which requires ‘due consideration of all objections’) and section 8(2)(b) requires a constructing authority to ‘consider the grounds of objection’ and where the objector has been heard by delegates, ‘the report thereon of such delegate’.

Despite the consideration given by the Council officers and Council’s Civic Cabinet, the Court was not satisfied that the Councillor’s had duly considered the substance of the objections in making the decision.  Relevantly the minutes of the Council meeting did not record any reference to the objection report or the grounds of objection.

His Honour Justice Jackson concluded that statutory procedure was not observed, and for that reason, set aside the decision as invalid and referred the decision back to Council.

Although the case turned on the above non-compliance, His Honour went on to consider two further challenges to the taking.  The first challenge related to the meaning of 'purpose’ and the proper construction of the Schedule to the ALA.  The second challenge related to the common practice of constructing authorities attaching background information documents to notices of intention to resume, which His Honour affirmed as capable of complying with the ALA requirement to state a ‘particular purpose’ for a taking.

Overall, the judgment confirms that the decisions of constructing authorities are not beyond challenge and the procedures in the ALA must be strictly followed.  The policies and practices of constructing authorities should be reviewed in light of this decision to ensure that delegate’s reports capture the substance of objections, are considered by the decision maker, and that this consideration is properly documented.  Subject to policy, such procedures may be simplfied by implementing appropriate delegations to allow individuals to exercise the authority’s compulsory acquisitions powers.

Hope v Brisbane City Council

On appeal from the Land Appeal Court, the Court of Appeal gave its decision in Hope v Brisbane City Council (2012) QLAC 9 on 23 July 2013.  The case highlights the inflexible application of appeal periods in the compulsory acquisition space. 

Following a dispute about the determination of compensation for the taking of Mr and Mrs Hope’s land in August 2012, the Land Court of Queensland made an order determining compensation.  On 9 October 2012 (42 days after the Land Court’s order) Mr and Mrs Hope filed a notice of appeal to the Land Appeal Court.  Although filed ‘in time’, the notice was not served on Council until 10 October 2013, one day after the 42 day period required by section 65 of the Land Court Act 1967 (Qld) (Land Court Act). 

The Land Appeal Court had found that it was without jurisdiction to hear the appeal as it had been instituted without compliance with section 65 of the Land Court Act.  Service of the notice of appeal was treated as a condition precedent to the commencement of a valid appeal.

Mr and Mrs Hope contended that the Land Appeal Court had jurisdiction to excuse their non-compliance under section 57 of the Land Court Act.

The Court of Appeal affirmed the original decision of the Land Appeal Court in determining that section 57 of the Land Court Act gave no express or implied power to the Court to excuse the late service of the appeal.  The Court refused the application for leave to appeal with costs.  The claimant therefore lost their right to appeal the Land Court’s determination of compensation.

This case reinforces the importance of critical deadlines in the Land Court for practitioners, claimants and constructing authorities.  The harsh finality of the decision can be contrasted with outcomes which could occur in the Planning and Environment Court given that Court’s very wide excusal powers.

If you are involved in compulsory acquisition matters and require assistance in understanding your obligations under the Acquisition of Land Act 1967 (Qld) please contact our team. 

Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.

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