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Government Compulsory Acquisition - It's Not Selling, It's Retrieving...

Recent decision has cast serious doubt over the legitimacy of the NSW State Government compulsory acquisition process.

A scary thought, being told to up and leave your home or business because the government wants your land to build public infrastructure. This has unfortunately been a reality for many home and business owners in New South Wales with the State Government flexing its legislative rights under the Land Acquisition (Just Terms Compensation) Act 199 (NSW) (Act). The Act provides a scheme for State Government bodies such as Transport for NSW and NSW Health to acquire land on “just terms” that often leave owners, or those with an interest in the land, left scrambling. Particularly, in cases where State Government bodies have breached the Act by either failing to give the appropriate six (6) month notice for negotiation or, as the recent case of Desane Properties Pty Limited v State of New South Wales [2018] has shown, by failing to prove they had a proper public purpose for acquiring the land in the first place.

Desane illustrated an important issue in government compulsory acquisition that the acquiring authority needs to properly identify the public purpose for which the property is set to be acquired in the Proposed Acquisition Notice (PAN). If they don’t, the PAN is not valid and the process needs to be commenced again. The question is though, what did the government have in mind when acquiring the property if not for a proper public purpose? Are they just choosing land that is appealing to them because they can? These are but some of the many questions we are left with.

Not only has Desane put into doubt the purposes for the State Government’s use of their compulsory acquisition powers, but also, whether all PAN’s that have been issued are compliant with the decision and properly identify the public purpose for which they have been issued. Following this decision, the State Government has provided fresh PAN’s to home and business owners who are standing in the way of the Sydney south-east hospital expansion, but what about all the other PAN’s that were issued before the decision of Desane was handed down?

If you have received a PAN, two of the most important items are to:

  1. ensure the State Government body attempted to negotiate a settlement at least six (6) months before issuing the PAN; and
  2. note that after receiving a PAN parties are only left with 90 stressful days to  reach a settlement before your home or business can be compulsorily acquired and you need to pack up and leave.

If the PAN issued to you has not given you 90 days then it could be invalid.

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