Compulsory Acquisition for Roads

A number of proposals have been flagged by Local Governments and other parties for the resumption of lands for the construction of new or upgraded roads in the Capricorn Region.

Under the Acquisition of Land Act, land may be taken by a constructing authority which may be the State of Queensland or a Local Government. There are limits on the purposes for which a Local Government may resume land but it must generally be for a public purpose. Land can be taken either by full acquisition, or by the constructing authority merely taking an easement over the land. Whether the land is fully acquired or by easement will depend upon the nature of the activities to be undertaken. Where land is taken or acquired for purposes of constructing a road, the land would be fully acquired as it is not appropriate to take an easement in those circumstances.

The first step in the acquisition process is the issuing of a Notice of Intention to Resume by the constructing authority. The notice must be served on every person who could make a claim for compensation, such as an owner of the land, as well as any mortgagee of the land. Once you have received a Notice of Intention to Resume you are entitled to lodge an objection to the taking of the land and subsequently attend a conference with representatives of the constructing authority to speak in support of the grounds of your objection. You may be represented by a solicitor or agent at that hearing.

If the constructing authority determines the land is still required to be taken for the original purpose for which it was proposed, then it may apply to the Minister for the land to be taken. If the Minister is satisfied that the land should be taken, then notice is published in the Government Gazette and you cease to be the owner of the resumed land.  Your right in relation to the land is then simply converted into a right to claim compensation pursuant to the Acquisition of Land Act.

Compensation can be agreed between the parties.  In the absence of agreement, compensation is determined by the Land Court.

Justin Houlihan is a Partner at local law firm Rees R & Sydney Jones.

ACCESS LAND – WATCH YOUR SPOKEN WORDS WHEN DEALING WITH RESOURCE COMPANIES!

It is a longstanding general rule in property law which says that if you are going to give away a right or interest in your Land, then this should be in writing. Unfortunately though, as new laws have been created to deal with Land Access for coal seam gas (CSG) and mining companies, this general and longstanding rule has been whittled away.

What is an Access Agreement?

Sometimes gas companies need access across blocks of land to get to the blocks of land under which the coal seam gas (CSG) might be found. The gas companies are required under the Petroleum and Gas legislation to enter into "Access Agreements" with landowners and occupiers of land. The right to come across the land is called an "Access Right" and it can include the right to construct roads or tracks across your Land to allow them to get to the area that they want to explore.

How can I give away access rights without an agreement in writing?

The Petroleum and Gas (Production and Safety) Act is currently drafted in such a way that Access Agreements or Access Rights can be given away orally.

How are Access Agreements different to Conduct and Compensation Agreements?

These Access Agreements are very different. There isn't even a need to compensate the Landowners or occupiers under an Access Agreements. Conduct and Compensation Agreements have to be in writing. If an oral agreement is made in regard to an Access Arrangement for say a road across the land, then this could be enough to allow a company to access and build the road on your Land. There is no requirement for compensation to be paid, but it can be negotiated.

If a Seller of Land enters into an oral agreement, and I buy the place, am I bound by this?

Yes. The law states that these agreements are binding on future owners of the Land. The fact that someone's word could bind up a property well into the future is obviously a very large problem and the law should be changed.

Surely the new laws about mining and gas will fix this won't they?

No. The laws in regard to Access Land are changing; however when the Mining and Energy Resources (Common Provisions) Bill 2014 was presented to Parliament on 5 June 2014, the problem with oral Access Agreements had not been addressed. It seems silly that a company might be allowed to build a large road on someone’s land without giving someone compensation, and without entering into a written agreement.

Every situation is different and because some things you even say now could be binding on you, you really should seek legal advice as soon as you are approached by a mining or gas company for access to your Land. It is also very important to look at whether or not your land is inside or outside the exploration area or tenement of a company to know what type of agreement you should be negotiating.

If you would like further information or have any questions please give Melanie Oliver, Amy Gudmann or Justin Houlihan a call on (07) 4927 6333.