The central figures in any resumption are generally the landowner and the resuming authority. However, claims for compensation are not limited to owners of the land.
Pursuant to section 12(5) of the Acquisition of Land Act 1967 (Qld) (ALA), any person with an estate or interest in the whole, or part, of any resumed land has a right to claim compensation. Some interesting case law has developed around just what is a sufficient “interest in land” to sustain a claim for compensation.
The term “interest” is not defined in the ALA but “land” is defined as meaning “land, or any estate or interest in land, that is held in fee simple, including fee simple in trust under the Land Act 1994” but excluding a freeholding lease under Land Act 1994. The term “interest” (in relation to land) is defined in the Acts Interpretation Act 1954 (Qld) as a “legal or equitable estate in the land” or “a right, power or privilege over, or in relation to, the land”. An “estate” is further defined in the Acts Interpretation Act as including an “easement, charge, right, title, claim, demand, lien and encumbrance, whether at law or in equity.” Those definitions are not particularly useful in determining whether or not an interest in land being resumed will justify a claim for compensation.
In general terms, what is required is a connection between the landowners and other entities to use the land for a purpose, which has a value. Obvious examples of an “interest in land” are owners of the fee simple and lessees, but the ability to claim compensation also extends to the holders of an option to purchase land and, in some circumstances, contractual licensees.
Interesting illustrations from case law include:
- A doctor who had a contractual licence with a medical practice for the exclusive use of a car parking space was able to claim compensation for the loss of use of the car park, once it was resumed for road purposes. There was a clearly identified proprietary right, with specific limits, and a value - Sorrento Medical Service Pty Ltd v Chief Executive, Department of Main Roads [2007] 2 Qd R 373
- The licensee of a billboard sign, and the operator of the business renting it, who had lost the billboard and its revenue-earning capability after the resumption of the land - General Outdoor AdvertisingPty Ltd v DTMR [2012] QLC 51
- Lessees of shops where part of the common property were resumed in circumstances where the relevant leases, properly construed, provided contractual rights to use the common areas – LGM Enterprises Pty Ltd v Brisbane City Council [2008] 29 QLCR 176 and Moreton Bay Regional Council v Mekpine Pty Ltd & Anor [2013] QLAC 5
- The owners of caravans in a caravan park, who were found to be tenants at will by virtue of being in exclusive possession of their respective caravan sites, and therefore had an “interest in land” pursuant to the NSW Land Acquisition (Just Terms Compensation) Act 1991 – Mooliang Pty Ltd v Shoalhaven City Council [2001] 114 LGERA 45
- The company managing a golf course did not have an “interest in land” and was, therefore, unable to claim compensation after an easement across the golf course had been compulsorily acquired - Ironhill Pty Ltd v Transgrid [2004] 139 LGERA 398
In Queensland, any right to claim compensation is subject to section 18(3) of the ALA, which provides that compensation is not claimable by a lessee, tenant or licensee of any land taken, if the constructing authority allows the person’s estate or interest to continue uninterrupted.
Further, in February 2009, section 12(5C) was inserted into the ALA, which provides that a person does not obtain a right to claim compensation in relation to an interest in land that is an interest under a services contract for the land (e.g. cleaning contracts).
Identifying a relevant interest in land is important to both potential claimants and resuming authorities alike. A resuming authority should, at an early stage, determine what interests there are in the land and whether it wants (or needs) to take a particular interest.
For more information or discussion, please contact HopgoodGanim Lawyers’ Planning and Environment team.