Land Acquisition (Miscellaneous) Amendment Bill

Final Stages

The Legislative Council agreed to the bill with the amendments indicated by the following schedule, to which amendments the Legislative Council desires the concurrence of the House of Assembly:

No. 1. New clause, page 3, after line 15—Insert:

5A—Insertion of section 9A

After section 9 insert:

9A—Operation of section 26B to be set out in certain communications

Without limiting any other provision of this Act, the Authority must ensure that any written communication of the Authority to an owner of land that is, or is to be, acquired under this Act contains information setting out the operation of section 26B.

No. 2. Clause 6, page 3, after line 18—Insert:

(1a) Section 10(3)—after paragraph (a) insert:

(ab) it must set out the operation of section 26B; and

No. 3. Clause 13, page 5, line 30 [clause 13(3), inserted subsection (7)]—Delete 'land'

No. 4. Clause 19, page 12, lines 12 and 13 [clause 19, inserted section 25A(1)(a)]—Delete paragraph (a) and substitute:

(a) at the time the notice of intention to acquire land was given in relation to the land, the person was an owner and occupier of the land; and

No. 5. Clause 20, page 13, after line 8 [clause 20, inserted section 26B]—Insert:

(1a) However, nothing in this section authorises the Authority to make more than 1 payment under this section in relation to a particular acquisition or proposed acquisition.

No. 6. Clause 20, page 13, line 16 [clause 20, inserted section 26B(3), definition of prescribed person, (a)]—Delete 'and occupier of' and substitute 'of the fee simple in'

No. 7. Clause 20, page 14, line 11 [clause 20, inserted section 26D(2)]—After 'section' insert 'or on its own motion,'

No. 8. Clause 20, page 14, line 17 [inserted section 26D(3)(b)]—Delete 'the prescribed period' and insert '24 months'

No. 9. Clause 21, page 15, after line 15 [clause 21, inserted Part 4A]—Insert:

26EA—Special provisions applying where acquisition of underground land for certain tunnel construction

(1) Despite any other provision of this Act, a special Act or any other Act or law, the following provisions apply to a proposed acquisition of underground land under this Part where the land is to be acquired for a purpose related to the construction of a tunnel (however described) to be constructed less than 10 metres below the surface of the underground land:

(a) the Authority must prepare and submit a report to the Public Works Committee of the Parliament in respect of the proposed acquisition and tunnel construction (and the function of inquiring into and making recommendations will, for the purposes of the Parliamentary Committees Act 1991, be taken imposed on the Committee under this Act);

(b) the report under paragraph (a) must be accompanied by—

(i) an engineers' report prepared in accordance with any requirements set out in the regulations; and

(ii) such other information as may be required by the Public Works Committee,

and must comply with any other requirements under the regulations;

(c) a dilapidation report in respect of any premises on surface land under which the underground land is located must be prepared in accordance with any requirements set out in the regulations.

(2) The Authority or a person authorised in writing by the Authority may, for the purpose of preparing a report under subsection (1)(a), (b) or (c)—

(a) exercise a power referred to in section 27 or the relevant special Act; and

(b) take such other action as may be reasonably necessary for the preparation of the report.

(3) Subsection (2) is in addition to, and does not derogate from, section 27 or any other provision of this Act or a special Act.

(4) Nothing in this section prevents an Authority from acquiring land under Part 3.

No. 10. Clause 21, page 16, line 1 [clause 20, inserted section 26F(5)]—Delete 'Despite a provision of this Act, or' and substitute 'Except as is provided by section 26H, and despite'

No. 11. Clause 21, page 16, lines 13 to 16 [clause 20, inserted section 26G(1)(a) and (b)]—Delete paragraphs (a) and (b) and substitute:

(a) any person who, to the person's knowledge, has an interest in the land, or who had an interest in the land immediately before the acquisition, and the nature of that person's interest (including, to avoid doubt, the person to whom the notice is given); and

(b) the existence of any well, bore or other infrastructure located within the underground land, or on surface land under which the underground land is located, and any entitlement (whether of the person or otherwise) that exists to take water by means of that infrastructure; and

(c) such other information as may be specified by the Authority in the written notice.

No. 12. Clause 21, page 16, after line 19 [clause 21, inserted Part 4A]—Insert:

26H—Limited entitlement to compensation where certain water infrastructure or rights affected

(1) Subject to this section, a person (the interest holder) who—

(a) holds a prescribed interest in underground land; and

(b) notifies the Authority of the prescribed interest in accordance with section 26G,

is, on an application under this section, entitled to compensation in relation to the acquisition of the underground land to the extent that the acquisition—

(c) involves the acquisition of the prescribed interest; or

(d) results in the discharge of the prescribed interest; or

(e) results in the interest holder being unable to take water by means of, or pursuant to, the prescribed interest.

(2) An application under this section—

(a) must be made within 6 months after publication of a notice of acquisition in relation to the relevant underground land; and

(b) must be made in a manner and form determined by the Authority; and

(c) must be accompanied by such information or documents as may reasonably be required by the Authority; and

(d) must comply with any other requirements set out in the regulations.

(3) On receiving an application under this section, the Authority must assess the application and must make a written offer of compensation (not exceeding the prescribed amount) to the interest holder.

(4) The following provisions apply in relation to the payment of compensation under this section:

(a) the Authority and the interest holder must negotiate in good faith in relation to the compensation;

(b) the Authority may offer non-monetary compensation to the interest holder (including, to avoid doubt, compensation consisting of relocation of any infrastructure affected by the acquisition);

(c) the Authority's liability to pay compensation under this section is reduced by the value of any non-monetary compensation provided at the request of, or by agreement with, the interest holder;

(d) the amount of compensation payable under this section is to be determined on the basis that the interest holder is to be compensated for loss occasioned by reason of disturbance (and regard is to be had to such of the principles set out in section 25 as may be relevant to such a loss);

(e) the Authority or the interest holder may refer a question arising in the course of negotiations into Court (and the matter may be dealt with as if it had been a matter referred into Court under section 23C);

(f) compensation under this section may be paid directly to the interest holder in a manner determined by the Authority;

(g) the payment of compensation must comply with any other requirements set out in the regulations.

(5) In this section—

prescribed interest, in underground land, means—

(a) ownership of a lawful well that provides access to underground water in the underground land, and any underground infrastructure associated with the well; or

(b) a right to take underground water from the underground land by means of such a well,

in each case being an interest existing immediately before a notice of acquisition is published in relation to the underground land;

underground water has the same meaning as in the Natural Resources Management Act 2004;

well has the same meaning as in the Natural Resources Management Act 2004 and includes, to avoid doubt, a bore.

Consideration in committee.

The Hon. V.A. CHAPMAN: I move:

That the Legislative Council's amendments be agreed to.

I indicate that the government will be accepting all the amendments. I am pleased to support the passage of the bill as already passed by the house and with the amendments in the other place. The Land Acquisition Act 1969 establishes a process for the acquisition of land by acquiring authorities. Land is generally acquired to accommodate various road and infrastructure projects, and this process will continue to assist South Australia growing and our economy developing into the future.

Operationally, the land acquisition process is overseen by the Department of Planning, Transport and Infrastructure (DPTI). They liaise with landowners to follow the process under the act to acquire the land and negotiate compensation for the landowner and other claimants holding interest in the land. We understand that no acquisition is easy or simple. It requires a significant level of cooperation from the government in assisting property owners, landlords, tenants and businesses to move residences or locations.

It is crucial that the rights of all prospective parties are maintained and solidified in legislation and that the proper compensation is provided, something the government has firmly acted on in this bill. I indicate our appreciation to members of the other place for their consideration of these matters. From those contributions, it is clear that they, too, have an understanding of the significance of making sure that we both protect the interests of parties in this legislation and ensure that, in new matters such as tunnelling under roads to provide for infrastructure, this is at the front of our considerations.

In essence, this bill deals largely with recommendations from the 2017 select committee, which examined the compulsory acquisition processes for properties acquired for the Torrens to Torrens project. This was chaired by the Hon. John Darley, a member of the Legislative Council. That report made a number of sensible changes to the process of land acquisition in South Australia, especially around increased compensation for landowners, greater security for payments and more security for tenants. The Hon. John Darley, who is a member of the other place, was active in the consideration of these matters in the debate in the other place and many of the amendments that are brought to our attention this afternoon.

The bill also makes consequential changes as requested by the Department of Planning, Transport and Infrastructure and the Crown Solicitor's Office, the two work groups that deal with land acquisition. I place on the record my appreciation of those advisers from DPTI and our own Attorney-General's Department, and particularly the Crown Solicitor’s Office, who have really worked extremely diligently to make sure that we come up with practical solutions to modern issues.

Finally, the bill acts on a government policy to allow for the underground land to be acquired to ensure that tunnels or otherwise can be built to grow South Australia and complete those crucial corridor projects. Much has been said about the concerns of those in the western region of metropolitan Adelaide who may have some impact on them as a result of the important north-south corridor project, which is a project traversing governments and one which has very significant investment from state and federal governments, not to mention some inconvenience for local governments.

In any event, it has thrown up a very critical aspect, including how we protect infrastructure with these major projects, such as the Thebarton Theatre, a place of entertainment and meeting for generations in South Australia. These are all considerations which have made it important for us to pass this legislation to provide options to those who are expert in providing advice to the government on how we should progress with that infrastructure. I thank all members for the consideration they have given in the course of the debate on this bill, which, at the most basic level, ensures a more even playing field for landowners, tenants and investors.

The select committee made a number of recommendations. Largely, these have been incorporated in this legislation. In fact, they formed the basis of the original bill. Again, at the most basic level this bill ensures that landowners will be in the strongest position possible, should their land be acquired, with market value, professional costs and now solatium payments being made.

On an operational level, although DPTI endeavour to undertake the best processes possible, the bill adds recommendations from both DPTI and the Crown Solicitor's Office to further strengthen the land acquisition process in South Australia. These changes include:

legislating on existing DPTI policy that stamp duty, lands titles office fees and transfer fees associated with buying a new residential property be paid by DPTI. Stamp duty will also be payable to owners of investment properties where certain conditions are met;

the introduction of a valuer's conference to allow the values for the landowner and DPTI to discuss factual issues in the evaluations early in the compensation negotiations;

allowing an offer of compensation to be varied up or down;

changes to the way DPTI determine rent to be paid by claimants if they remain on the land after the expiration of the three-month grace period. The rent payable must not exceed the acceptable market rate for the property; and

a range of other amendments that will improve the compensation negotiation process between the parties and reduce administrative and legal costs.

Finally, the bill looks to the future and the work being undertaken by the Minister for Planning, Transport, and Infrastructure and this government to grow South Australia, build our economy and help families get home sooner and safer through expanded road networks.

As we have seen across the country, the bill contemplates the future use of tunnels to avoid above-ground land acquisition where possible. I thank all members for their interest in this aspect specifically and note the government members' amendments now included in this bill, which ensure compensation to be provided for landowners with legal bores.

On that note, I want to acknowledge across the party spectrum of the composition of our parliament that the question of protecting the interests of those who have legal bores and ensuring they are not either interrupted or damaged has been a matter raised by a number of members, and I thank them all for that contribution. It was an important issue to look at: we did, we provided advice on it and we have made sure that those interests are protected.

Upon the passing and the commencement of this act, there will be work done on regulations and changes to the Metropolitan Adelaide Road Widening Plan to reflect any future plans for the city corridors. I appreciate the consideration in the other place, the comprehensive debate on this bill and thank all members for their participation. I commend the amendments to the bill to the house.

Motion carried.