Land Acquisition (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 27 November 2019.)

The Hon. J.A. DARLEY (20:29): I rise to speak on the second reading of this bill. The Land Acquisition (Miscellaneous) Amendment Bill is largely the result of the Select Committee on Compulsory Acquisitions of Properties for North-South Corridor Upgrade. In 2015, I established a select committee to investigate compulsory acquisition as I had received a large number of complaints from dispossessed owners. After trying to deal with the complaints by working with the department and the minister, it was clear that the process is not working as it should, so I instigated a select committee.

The committee heard from a number of witnesses, including valuers and lawyers who are experienced with compulsory acquisition, as well as dispossessed owners. Whilst it was clear that improvements could be made legislatively, it was also clear for the large part that it was DPTI's interpretation and administration of the act that was causing problems. The amendments outlined in the bill are largely in response to the select committee's recommendations and I applaud the government for adopting the recommendations.

Compulsory acquisitions have been used for decades, usually as a tool for the government to acquire land required for public projects. I was previously CEO of the lands department from 1985 to 1992. During my time, properties were compulsorily acquired for a number of projects. I have said previously that I would be happy for the government to compulsorily acquire my property because I had confidence in the process as followed at that time; however, my experience in trying to help constituents over the past decade has made me change my tune.

As I said before, the problem often was not with the legislation, it was the attitude of the acquiring authority. The government often tout that about 98 per cent of acquisitions are completed successfully and in a timely manner; however, this does not mean that 98 per cent of dispossessed owners are happy with how the matter was handled.

No information was collected on what dispossessed owners thought of the process and therefore the assumption is that they were all happy. I have had a lot of feedback that this is simply not true. Whilst there was always the ability to negotiate a voluntary acquisition, there seems to be a trend towards favouring this method rather than following the procedures set out under the act. In some circumstances, there is no issue with this and it can lead to a quicker and more satisfactory outcome for both parties.

However, I have heard many disturbing stories of landowners being approached unofficially by public servants who feel intimidated into agreeing to an offer without being fully informed of their rights. There is clearly a power imbalance in these circumstances and, short of legislating against this practice so that governments cannot acquire land unless they follow the process under the Land Acquisition Act, I am not sure what can be done. Dispossessed owners trust that public servants are acting within the spirit of the act and it is disappointing when their trust is broken. I hope compulsory acquisitions in the future will be handled more respectfully.

This bill makes a number of changes but, notably, it allows for a solatium payment to be made. A solatium payment is an additional payment made to owners, usually for a non-financial disadvantage resulting from a person having to relocate due to the compulsory acquisition of their principal place of residence. Interstate acts have this or similar definitions as to the purpose of the solatium payment.

However, this bill does not give guidance as to why a solatium payment may be made. It merely states that a solatium payment may be made if a person's principal place of residence is compulsorily acquired. The bill does not outline when it will and when it will not be paid. I believe it is in the spirit of the legislation that a solatium should be paid in all circumstances where a principal place of residence is acquired and I have filed amendments to reflect this.

I would also be grateful if the minister could advise why the government has left this provision to be discretionary and under what circumstances the provision will or will not be paid to dispossessed owners for their principal place of residence. Further to this, I would be grateful if the government could provide clarification on the following points.

Section 22B has been amended by the bill to outline that those with inalienable interests in land are entitled to compensation for the acquisition. There are sometimes situations where a person is given a life interest in a property through a will. That is to say, a person may pass away and give ownership of the family home to their child; however, a life interest is given to their partner, which gives them the right to reside in the property until their own death. I would be grateful to the minister if they could clarify if people with a life interest will be entitled to compensation under the act or if the compensation is only available to the owner.

New section 23AB outlines that a person who receives an offer of compensation must respond within six months. I understood that this was just a requirement to respond, not to come to an agreement within this time frame. That is to say, the owner can write back, either directly or through their legal representative, to say that they do not agree and suggest another amount or ask for negotiations to continue. I would be grateful if the minister could confirm this point—that there is no obligation to accept the offer within six months under this clause and that an alternative amount can be put to the authority.

New section 23BA provides for a settlement conference. It states that the conference coordinator, a representative of the authority, the claimant and the claimant's legal representative are entitled to attend the conference. However, there is a further provision that states that nothing prevents other persons from attending the settlement conference. Can the minister advise if other persons will need the agreement of both parties before they can attend and how it will be decided that another person can attend?

New part 4A outlines special provisions relating to the acquisition of underground land. I understand that these provisions mirror what is done interstate to address when underground land is needed for tunnel projects. In briefings, the government advised that these provisions were only going to be used for land that was approximately 20 metres underground and that if properties were damaged as a result of this work the department would work with these owners to compensate them. I would be grateful if the government could give more information on this and through what processes landowners whose properties have been damaged will be compensated.

I have also filed a few other amendments to increase the rights of dispossessed owners and to ensure a smoother process for all involved in the acquisition. I will speak to these amendments during committee. I support the second reading of the bill.

The Hon. M.C. PARNELL (20:37): The Greens are generally supportive of this legislation, with one exception, which I will come to in a minute. As the Hon. John Darley pointed out, the bulk of this legislation derives from the findings of a select committee that looked at the process of compulsory acquisition in relation to the roadworks that had been underway, and are still currently underway, along the Main South Road corridor. To the extent that this bill gives effect to those recommendations, we support them.

I will make one declaration here. It is not a declaration that I own properties that have ever been acquired. However, as a young, bright-eyed solicitor in country Victoria, part of my job was doing the compulsory acquisition legal work on behalf of local councils. They invariably involved road straightenings, where historically there were doglegs and things in roads. Councils would want to straighten them up and make them safer, so there would be little corners snipped off farmers' paddocks. The nature of the compulsory acquisition regime is not a question of whether they can—of course they can; that is the regime. The only question is: how much compensation?

When we look at this bill, ultimately that still is the only question. It is not whether they can or cannot do it: they can. The law says that for these public infrastructure works the state can compulsorily acquire your property. The only real argument is the compensation and the conditions.

One area that the Greens still have some concerns over relates to a very topical issue, but it is a new issue for South Australia. That is the construction of tunnels under private land. Interstate, they have a fair bit more experience. In densely populated Sydney and Melbourne, especially in the inner urban areas, where the value of land at the surface is large, a number of tunnels have been constructed

Some of those states have the advantage of having a property law regime whereby people only own property down to a certain level below the ground. My understanding is that in Victoria and in New South Wales, that is limited to 15 metres. If the road building or road tunnelling is more than 15 metres below your property, then it is not your land anyway; the compulsory acquisition regime does not even enter into it. But South Australian law is a little bit different. I know that Mr President is often disappointed that we do not use enough Latin in this chamber. The law in South Australia is succinctly described as follows: cuius est solum, eius est usque ad coelum et ad inferos, which as members—

Members interjecting:

The Hon. M.C. PARNELL: I am not a fluent Latin speaker, as might be apparent. The translation is: to whom belongs the soil, his is also that which is above it to heaven and below it to hell. That pretty much sums up the law of property. You have an area marked out on a map, on the land, on the ground, and your property extends infinitely into the air and infinitely below the ground. Sir William Blackstone, the great legal commentator, talked about it going down to the centre of the earth. Mind you, mathematically when we do get to the centre of the earth, distinguishing your property from those of Argentinians and Chinese and various others would become complex, as we get to that fine point in the centre of the earth.

That does create a bit of a difficulty for South Australia because, technically, if people do own that land, the question then arises as to whether they are entitled to any compensation. The approach that appears to have been taken is a practical one, where they say, 'If us acquiring your property that is under the ground doesn't affect you in any practical or financial way, then we shouldn't have to pay you any compensation.' That then raises the question of whether all circumstances have been considered, and it appears that as this bill has progressed, first of all someone said, 'What about if you have a water bore? Clearly, that's down into the ground.' They said, 'Okay, we will compensate you for that.'

Other people said, 'Well, what if the tunnel is coming back up to the surface and it's not 15 or 20 metres below your property; it's only 10 metres below your property?' So other amendments have been put forward saying, 'If it's less than 10 metres below, we will acquire the whole property.' There is an extent to which I think this is being made up on the run.

A couple of responses to this dilemma have been proposed. I have heard it said that some members would like to hive off this whole bill to a select committee. I do not support that approach, because as we know, most of it actually came from a select committee in the first place, so it does not make a whole lot of sense to send it all off to a select committee.

It seems to me that there is probably more work that needs to be done on this underground tunnelling acquisition. Another suggestion that has been put forward is that maybe the Public Works Committee could just look at that section, as an appropriate standing committee of parliament. In other words, let the rest of the bill go through. They are sensible provisions, they add to the fairness of the system and, as the Hon. John Darley said, they came out of the thorough process of inquiry, but maybe we should just pause and hold off on the underground portion of this bill, because on the back page of the bill, the words are very clear: 'No compensation is payable in relation to an acquisition of underground land'—no compensation is payable.

That might be an appropriate response in many cases, but is it the appropriate response in all cases? I have had a number of very brief conversations with planning minister, Stephan Knoll, on this. We have gone through a few scenarios: the multilevel underground car park, a wine cellar or a basement. I think in the vast bulk of cases they will not be affected. What we are finding interstate is that it is by no means clear that just because the tunnel is a long way under your property it has not affected you.

Just looking at some of the interstate press, The Sydney Morning Herald five years ago had an article entitled 'Calls for fair compensation for home owners above tunnels'. There is a range of lawyers. Not surprisingly, Slater and Gordon gets a mention in here, and they say:

We have a...client who has an exit tunnel three metres from their fence: they're not protected under the act…

They do not get any compensation at all. There are valuers, professional land valuers, who have come out saying that the residential property market is very sensitive to these things and that people's property values will decline as a result of having a tunnel underneath. It might not be based in a practical implication but, at the end of the day, if it affects the market it affects the market.

More recently, we have in The Age newspaper an article from 10 April under the heading 'Home owners with tunnel beneath their feet should get compensation, reports find'. I thought, 'That's interesting. I wonder what report that was.' The article goes on:

Yarraville residents who will have Transurban's West Gate Tunnel built beneath their properties could be eligible for compensation ranging from $60,000 up to $120,000.

I will not read the whole of the article. The article does refer to Victoria's Valuer-General, who came to a conclusion, which said 'there is generally little difference in the values of properties above tunnels compared to others in the same area' that were not above tunnels. But then you have other valuers who have come out saying that the Valuer-General's analysis was flawed. They point out that looking at land valuations many years after the tunnel was built does not give you a guide to what the impact was either during construction or the uncertainty just prior to construction. As a consequence, you have a range of people coming out in Melbourne saying that people should be entitled to some compensation.

The Greens' view on whether compensation should or should not be payable is not black-and-white. We think there is a bit more work that needs to be done to explore the bounds of circumstances in which compensation should be allowed and should not be allowed. That is my suggestion. Unless we are presented with absolutely compelling evidence to the contrary, the Greens' position is to support the whole of the bill except for the last part, the insertion of part 4A, which is in relation to the acquisition of underground land and includes the provision I referred to before, that no compensation is payable. That would certainly achieve 90 per cent of the what the bill is designed to do and it would put off to another day the question of how we deal with compensation.

The final thing that I would say is that it is difficult to look at this issue in a legal vacuum because we are talking about real projects that are on the horizon for South Australia. I note a meeting that I could not get to the other night. I do not think any of us got there at the Thebarton Theatre because we were sitting here debating important business. That community very much wants tunnels. They do not want the Thebarton Theatre demolished. They do not want the church, the name of which escapes me.

The Hon. F. Pangallo: Queen of Angels, where I was born—baptised.

The Hon. M.C. PARNELL: Queen of Angels, thank you. The Hon. Frank Pangallo was born in the Queen of Angels Church.

The Hon. F. Pangallo: Baptised.

The Hon. M.C. PARNELL: Baptised. That community quite reasonably thinks that the impact on their community will be less if we get a tunnel. The point that I would make is that I think the Greens are the only party who from day one have questioned whether the single biggest project in this state's history, the thing that we should be proudest of in all of the achievements of South Australia, should be a road through the city.

Billions of dollars that have been spent on this project, whether it was the South Road 'super waste', as my colleague the Hon. Tammy Franks labelled it—I think that was $800 million—or whether it was the Torrens to Torrens or near Flinders University near where I live. When we add all this up we will have spent billions and billions of dollars. That might be fine if there was no-one homeless, if all our kids always got breakfast each day, if all our social services were up to scratch, but they are not.

We know, from recent negotiations in relation to social services or the environment, that we have managed to eke out a million here or a million there for the environment, to help people protect private bushland, put a few solar panels on some Housing Trust roofs. Whilst they are all very good and very worthwhile projects, and the Greens are proud to have secured them, they are chicken feed compared to the billions of dollars that has been spent on turning South Road into a freeway.

What this government and what the previous government have failed to recognise is that the congestion problem on most of our arterial roads is not caused by trucks. They are not the cause of the congestion. The cause of the congestion in urban areas is single occupant commuter motor vehicles, and there are alternatives for a vast number of those single occupant cars travelling to and from the suburbs and the city.

Just imagine what sort of public transport system we would have if we had spent the billions of dollars being proposed for freeways and tunnels on public transport. There would be much less congestion. Trucks have no choice: they cannot use the train in an urban area, they have to use the roads. Congestion would be reduced if we gave ordinary folk who are going about their ordinary business some viable alternatives by way of public transport.

With those brief remarks, the Greens support the vast bulk of the bill but reserve the right to oppose that part of it that relates to compensation for underground acquisition, because we believe more work is required in that area.

The Hon. C. BONAROS (20:51): For the record I indicate that the position the Hon. Mark Parnell has just articulated is one that SA-Best also supports, particularly in relation to opposing those provisions that relate to compensation for the underground works.

The Hon. R.I. LUCAS (Treasurer) (20:51): I thank honourable members for their time and their contributions to the bill. In essence, this bill deals largely with recommendations to the committee looking at the acquisitions undertaken for the Torrens to Torrens project. The committee was chaired by the Hon. John Darley MLC.

That report made a number of sensible changes to the process of land acquisition in South Australia, especially around increased compensation for landowners, greater surety for payments and more security for tenants. Further, this bill makes some consequential changes as requested by the Department of Planning, Transport and Infrastructure and the Crown Solicitor's Office, the two work groups who deal with land acquisition.

Finally, the bill acts on a government policy to allow for underground land to be acquired to ensure tunnels or otherwise can be built to grow South Australia and complete crucial corridor projects. This bill, at the most basic level, ensures a more even playing field for landowners, tenants and investors. It confirms that market value and professional costs should be paid to compensate for the acquisition of land, and further adds that solatium is to be paid to landowners beyond the market value to ensure they are in the best position possible.

The government is ensuring professional fees are being paid up-front earlier to assist investors as well as owners moving house. This was a direct recommendation to the committee. Further, the bill allows for small market and net value payments to be made directly to the claimants instead of through court. This speeds up the process and ensures that owners receive compensation sooner.

I thank all members who have attended briefings, particularly for their contributions around underground land rights and the use of legal bores. As such the government has filed amendments, some of which are largely consequential and another which ensures owners are properly compensated for legal bores on their properties. I will turn to the other amendments filed during the committee stage of this bill.

Again, I thank all members for their ongoing questions between the houses and during briefings on this bill. While many questions were largely policy questions for the Department of Planning, Transport and Infrastructure, I hope to be able to assist with anything unanswered or unclear during the committee stage with their assistance. I commend the bill to the house.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 5 passed.

New clause 5A.

The Hon. J.A. DARLEY: I move:

Amendment No 1 [Darley–2]—

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.

Amendment No. 7 in [Darley-2] is related to this amendment and I will be speaking to both. This amendment will ensure that any written communication from the authority will advise the owner that the authority will cover reasonable legal and valuation costs. This is to ensure that owners understand what their rights and entitlements are. I understand this is currently done in practice; however, inserting it in the legislation will ensure dispossessed owners will know their rights and entitlements.

The Hon. R.I. LUCAS: The government supports the amendment. It is already the practice of DPTI to advise landowners of their entitlements when their land is proposed to be acquired, and this includes extensive information as to the payments they are entitled to and will include information about the up-front professional fees payment should the parliament decide to pass this bill. Although the government's view is that this amendment is unnecessary and overly prescriptive, it will not be objecting. In fact, we will be supporting this amendment.

New clause inserted.

Clause 6.

The Hon. J.A. DARLEY: I move:

Amendment No 2 [Darley–2]—

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

This amendment is similar to my previous amendment and stipulates that if a notice of intention to acquire is issued it must advise the landowner that they are entitled to have reasonable legal and valuation costs covered by the authority.

The Hon. R.I. LUCAS: The government supports the amendment.

Amendment carried.

The Hon. J.A. DARLEY: I move:

Amendment No 3 [Darley–2]—

Page 3, line 19 [clause 6(2)]—Delete subclause (2) and substitute:

(2) Section 10(4)—delete subsection (4) and substitute:

(4) If the Authority changes the boundaries of the land it proposes to acquire—

(a) such that the changes result in a variation of 30 per cent or less of the total land size as was specified in the notice of intention to acquire land—the Authority must immediately serve a notice of amendment to the notice of intention to acquire land on the same persons as the notice of intention to acquire; or

(b) such that the changes result in a variation of more than 30 per cent of the total land size as was specified in the notice of intention to acquire land—the Authority must give a new notice of intention to acquire land in accordance with subsection (1), in which case the original notice of intention is, by force of this subsection, taken to be revoked.

This amendment outlines that if a notice of amendment to the notice of intention to acquire land is issued and it varies the land subject to the notice by more than 30 per cent, then it is deemed as a new notice of intention to acquire.

This will mean that the time frame for objection and review rights will be reset if the amendment significantly varies the subject land; that is to say, if the authority only needs to vary the subject land a little then it is unlikely that the owner will want to object or review the new notice. However, if the land is varied significantly then it is more likely an owner may want to object or review the notice.

Currently, the authority could issue an amended notice which changes the review objection rights if the 30 days has expired, as an amended notice of intention to acquire is not treated the same as the notice of intention to acquire.

The Hon. R.I. LUCAS: The government will be opposing this amendment. It introduces a new level of complexity into the process and the potential for conflict. Furthermore, a change in area is not the only consideration when issuing an amended NOI. For example, if the shape of the acquisition changes or improvements are impacted, this may give rise to a need for an amended NOI that could not be calculated in the sense of percentage change to the total land size. For those reasons, we oppose the amendment.

The Hon. M.C. PARNELL: The Greens support the amendment. We think that a variation in the proposed land to be acquired of 30 per cent makes it a substantially different proposition and therefore an amended notice should be issued.

The Hon. C. BONAROS: I indicate that SA-Best also supports the amendment.

The Hon. C.M. SCRIVEN: The opposition is not supporting this amendment.

Amendment negatived; clause as amended passed.

Clause 7 passed.

New clause 7A.

The Hon. C. BONAROS: I move:

Amendment No 1 [Bonaros–1]—

Page 4, after line 12—Insert:

7A—Amendment of section 12—Right to object

Section 12(1)—delete 'may within 30 days after notice of intention to acquire the land is given or, if an explanation of the reasons for the acquisition is required, within 30 days after the explanation was provided, by written notice—' and substitute:

may, within 30 days after—

(a) notice of intention to acquire the land is given; or

(b) a notice of amendment is served under section 10(4); or

(c) if an explanation of the reasons for the acquisition is required under section 11—the explanation is provided,

by written notice—

The amendment seeks to replicate the 30-day notice of intention requirement that applies in the first instance where a notice of amendment is served under section 10(4). That is to say, where you are issued with a notice there is a 30-day period within which you are required to reply. That same period does not apply where there is an amended notice, so the amendment seeks to provide consistency. In fact, there is no additional period under the second provision.

The amendment simply seeks to provide that notice period. If I can find my notes I can articulate that a little better. It would appear that I have lost my speaking notes on this amendment. I am not sure if the Treasurer understands what I have just explained. It makes sense to me.

The Hon. R.I. Lucas: I understand completely.

The Hon. C. BONAROS: I am very pleased, and I hope everyone else understands it also. I cannot find my notes, so that is the explanation I am providing you, Chair.

The Hon. R.I. LUCAS: On behalf of the government, I indicate that the government will be opposing this amendment. It appears that this amendment may relate to the government's amendment to section 10 in clause 6 of the bill, where it is clarified that an amended notice of intention to acquire, or amended NOI, does not constitute a new NOI.

The intent of the government's amendment was to clarify this position as it is currently unclear. The government amendment was to ensure that changes could be reflected in the NOI easily and to avoid any delays in the acquisition and in providing acquisition compensation. Because an amended NOI can only be issued if there was a modest change to the acquisition resulting from updating the draft land survey to the final land survey, it is appropriate that no new right to object occurs at this stage of the process.

The claimant was afforded the opportunity to seek reasons and details or to object upon the issuing of the original NOI and, if there is a substantial change to the amount of land required, the authority is required to issue a new NOI, meaning all rights are then reinstated. Further, this adds further delays to the process. The entitlement to compensation is not affected by the amendments. The amendment from the Hon. Ms Bonaros effectively undoes the government's amendment in clause 6 as it introduces another right to object when an amended NOI is issued. Therefore, the government will be opposing the amendment.

The Hon. M.C. PARNELL: The Greens support the amendment.

The Hon. C.M. SCRIVEN: The opposition is opposing the amendment.

New clause negatived.

New clause 7A.

The Hon. J.A. DARLEY: I move:

Amendment No 4 [Darley–2]—

Page 4, after line 12—Insert:

7A—Amendment of section 12—Right to object

Section 12—after subsection (1) insert:

(1a) A person may apply to the South Australian Civil and Administrative Tribunal (established under the South Australian Civil and Administrative Tribunal Act 2013) for an extension of the period within which a request can be made under subsection (1).

(1b) An application under subsection (1a) must be made within 30 days of service on the person of the notice of intention to acquire land or, if an explanation of reasons for the acquisition is required, within 30 days after the explanation was provided.

This amendment gives the opportunity for application to be made to SACAT to have the 30-day objection period extended if an applicant can prove there was reason to do so. Currently, once the 30 days to object expires there is no way to extend it. Dispossessed owners may not seek legal representation until after this period has expired. This amendment allows SACAT to decide if the objection period should be extended and on what grounds. SACAT will not make a determination on the actual objection itself.

The Hon. R.I. LUCAS: I advise the government will be opposing the amendment, as it adds an unnecessary burden and a new application to SACAT's workload where it is not required. It will increase legal costs and add delays to the process. DPTI advises that in addition to the statutory 30-day notice period they as the authority will have been discussing the proposed acquisition with all parties. All parties are advised well in advance of an NOI being issued, meaning there is sufficient time to object within the statutory limit. DPTI advises me that generally there are three to four weeks of discussions to determine the property interests prior to an NOI being issued, so the landowners will be well aware of the intentions of the authority before the NOI is issued.

The Hon. M.C. PARNELL: The Greens will be supporting this amendment. I think what is at the heart of it, whilst I have not discussed it with the Hon. John Darley, is the concept that the decisions that are being made here are grave decisions of some consequence, and they can relate to people who are losing their home or their business that they may have had for 50 or 60 or more years, and therefore allowing them to go to an umpire and argue special circumstances to be allowed a little bit longer to consider the matter I think is only fair. I do not think that SACAT would be in the business of willy-nilly handing out extensions, but at least it gives people the right to apply.

The Hon. C. BONAROS: Can I indicate that for the same reasons just outlined we will be supporting the amendment.

The Hon. C.M. SCRIVEN: The opposition is opposing this amendment.

New clause negatived.

Clauses 8 to 12 passed.

Clause 13.

The Hon. J.A. DARLEY: I move:

Amendment No 5 [Darley–2]—

Page 5, line 30 [clause 13(3), inserted subsection (7)]—Delete 'land'

The amendment changes who can attend a valuers conference. At the moment it is limited to land valuers only; however, there may be circumstances where it may be useful for other valuers such as business valuers to attend.

The Hon. R.I. LUCAS: The government supports.

The Hon. C.M. SCRIVEN: The opposition is supporting this amendment.

Amendment carried; clause as amended passed.

Clause 14.

The Hon. J.A. DARLEY: I move:

Amendment No 1 [Darley–1]—

Page 6, after line 23 [clause 14(2)]—Insert:

(1b) If, in accordance with subsection (1a), the Authority does not make an offer, it must, no later than 30 days after giving the notice of acquisition of land, make an advance payment of compensation being no less than $10,000 to the person or persons whom it believes to be entitled to compensation for the relevant acquisition.

(1c) To avoid doubt, a payment under subsection (1b) forms part of the total compensation payable to a person in relation to an acquisition.

The government's bill allows for the authority not to stipulate an amount for compensation when issuing the notice of intention to acquire. This means that no moneys are paid to the courts that the dispossessed owner can access while negotiating their compensation.

My amendments require the authority to pay a minimum of $10,000 to the courts. This is to recognise that dispossessed owners may need some funds to assist with moving on, given their property is being acquired, to lease another property to undertake business. The amount of $10,000 is in line with the amount set out in the government's bill where an owner can be paid this amount directly rather than being paid to the courts. It is also unlikely that any compensation that is so complicated that it cannot be determined at the time of issuing the notice of intention to acquire will be less than $10,000.

The Hon. R.I. LUCAS: The government is opposing this amendment. It seems as though there has been some misunderstanding of the reasons for the provision's inclusion in the bill. The provision allowing for an offer of compensation to be paid into court later than a seven day period following acquisition has been included to prevent the current circumstances where if compensation is unable to be determined at the time of issuing an NOA, which is often the case for business valuations, the value placed in the documentation is required to state nil. This is misleading and often upsetting to landowners and the provision allows for more accurate description to be used. This provides clarity and more detail for landowners.

This amendment from the Hon. Mr Darley provides for initial payment of compensation where no offer has been paid into court as the value is still being assessed. This is based off an example provided by Mr Darley, which does not properly represent the general acquisition situation. The example provided by Mr Darley relates to one landowner who was unable to provide details of the business being operated. This meant that the acquisition process was delayed as market value could not be appropriately evaluated without details of the business to which the market value relates.

It would be inappropriate to make payments to dispossessed owners without supporting evidence, including an assessment from an independent valuer. Where there is any delay in the assessment of compensation, often one of the main reasons is due to the dispossessed owners not providing the required supporting evidence to determine compensation. In the case of businesses, the authority is reliant on the claimant to provide accurate information in relation to their business in order for an assessment of compensation to be made. Until that information is provided, the authorities are unable to assess or make any payment.

There are also instances where claimants obtain non-monetary compensation and therefore making a monetary payment would be inappropriate. The legislation is written to put the onus on the dispossessed owners to provide the required supporting evidence to allow assessment and this amendment would compromise this requirement, making the whole process longer and more difficult.

The Hon. M.C. PARNELL: This is quite a complex matter. If I could ask the Treasurer if he could maybe take some advice. Are there any circumstances where a person would get less than $10,000? Because if that is an unlikely scenario, if everyone is going to get at least $10,000, then why not give them $10,000 earlier rather than later because they were always going to be getting at least $10,000? The minister, in his answer, talked about non-monetary compensation, but my understanding is that in the overwhelming number of cases it is difficult to conceive compensation that would be less than that amount.

The Hon. R.I. LUCAS: My advice is there are examples, but they generally relate to tenants and so, in those circumstances, tenants would get compensation for cost of moving or something like that, which might be less than $10,000. I think the member is right in relation to businesses. It would be unlikely that they would be less than $10,000—although I guess there might be a circumstance; I don't know. As a general rule, I am advised that would be the case.

The Hon. M.C. PARNELL: The Chair needs some guidance as to where this is going. The Greens' inclination had been to support the amendment and I think we still will.

The Hon. C. BONAROS: I indicate for the record that we will be supporting the amendment.

The Hon. C.M. SCRIVEN: The opposition is opposing the amendment.

Amendment negatived; clause passed.

Clauses 15 to 18 passed.

Clause 19.

The Hon. J.A. DARLEY: I move:

Amendment No 2 [Darley–1]—

Page 12, line 9 [clause 19, inserted section 25A(1)]—Delete 'may' and substitute 'must'

The government's bill introduces a solatium payment to owners who have had their principal place of residence acquired. However, there is a discretion in the bill as it states that the authority 'may' provide a solatium payment rather than 'must'. My amendment takes the choice away and stipulates that a solatium payment must be made to all owners whose principal place of residence is compulsorily acquired. Interstate a solatium payment is made for non-financial disadvantage caused by a person having to relocate because their principal place of residence has been acquired. I cannot see why some dispossessed owners should be given this payment and others not, which is why I have moved this amendment.

The Hon. C. BONAROS: I indicate for the record that we will be supporting this amendment.

The Hon. R.I. LUCAS: The government opposes. I have now heard a couple of different pronunciations, so I will be looking to the Hon. Mr Parnell to give me guidance.

The Hon. M.C. PARNELL: Solatium.

The Hon. R.I. LUCAS: Solatium. I have heard it pronounced in different ways and I am sure it is all acceptable. We all know what we are talking about. The authority needs to establish if solatium is applicable and therefore must retain the ability to make that assessment. As a result, the legislation is drafted to state 'may' rather than 'must'. If the wording were changed to 'must', the whole basis of the drafting would need to be rewritten to be very prescriptive, which is more likely to exclude than include, and would change the basis of the regulations. The government has acted on the recommendations of the select committee to introduce the option for solatium. This is above and beyond the market value in professional costs of the compensation. For those reasons, the government opposes the amendment.

The Hon. C.M. SCRIVEN: The opposition is not supporting the amendment.

The Hon. M.C. PARNELL: The Greens do support it. We actually imagine that it was quite a Liberal thing to support because Liberals often talk about how they are big on self-determination and the nature of the compulsory acquisition regime is the opposite of self-determination. Someone is determining something for you. You are being moved out against your will and in a time frame that you have not chosen. Therefore, solatium—which was how I was taught at university, but I really do not know if it is the definitive pronunciation—is a recognition via a payment on behalf of the state to compensate over and above what the value of the land or business might be worth to the property owner for having removed their right to self-determination. I think the Hon. John Darley's amendment requires that to happen in all cases rather than just being optional. We support that amendment.

Amendment negatived.

The Hon. R.I. LUCAS: I move:

Amendment No 1 [Treasurer–1]—

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

We will support this one! This amendment is necessary to prevent a situation where a landlord deliberately evicts their tenants in order to move into the property solely to claim the solatium as an owner-occupier after they have been notified of an acquisition. Unfortunately, DPTI have become aware of real examples of this occurring interstate where a solatium payment is made and, therefore, we are seeking to prevent the same situation occurring here with the introduction of the solatium.

The Hon. C.M. SCRIVEN: On the same basis that we need to protect tenants from being evicted in that situation, we will be supporting the amendment.

Amendment carried.

The Hon. J.A. DARLEY: I move:

Amendment No 3 [Darley–1]—

Page 12, line 30 [clause 19, inserted section 25A(4), definition of prescribed amount]—Delete 'lesser' and substitute 'greater'

The bill provides for a solatium payment to be either 10 per cent of the value of the property or $50,000, whichever is the lesser. My amendment changes this to whichever is the greater. This is in recognition of the fact that acquisition of a principal place of residence is often emotionally taxing and dispossessed owners should be the beneficiary of a more generous scheme.

The Hon. R.I. LUCAS: The government is opposing this amendment. The proposal to change the bill to be the greater of 10 per cent of the market value or $50,000 creates an unfair advantage to owners who have properties valued at more than the current median house price. The amendment is simply inequitable and will only advantage those with higher property values over $500,000.

The proposed solatium payment of 10 per cent of the market value or $50,000, whichever is the lesser amount, is similar and in some instances more generous than other legislation in Australia. We must remember this payment is already in addition to the market value rate provided for the acquisition and other payments, including legal fees and professional services.

As an example, the current solatium payment in New South Wales is $79,146, which represents 7.3 per cent of the New South Wales median house price of $1,079,491. The equivalent position in South Australia is a median house price of $538,550, which, if the same mechanism were employed in South Australia as exists in New South Wales, would be equivalent to a prescribed amount of $39,485.

The Hon. M.C. PARNELL: This is one of the rare occasions when the Greens are not supporting the Hon. John Darley's amendment—I think we are supporting all the others—on the basis that, whilst we want to be generous, our generosity is not limitless and we think that the current arrangement is fairer.

The Hon. C. BONAROS: We will be supporting the amendment.

The Hon. C.M. SCRIVEN: The opposition is not supporting the amendment.

Amendment negatived; clause as amended passed.

Clause 20.

The Hon. J.A. DARLEY: I move:

Amendment No 6 [Darley–2]—

Page 13, lines 6 to 8 [clause 20, inserted section 26B(1)]—Delete subsection (1) and substitute:

(1) The Authority must pay a prescribed person an amount (being an amount determined in accordance with the regulations) towards payment of professional costs in relation to an acquisition, or a proposed acquisition (whether the acquisition is compulsory or by agreement)—

(a) within 30 days after notice of intention to acquire the land is given; and

(b) every 6 months thereafter until final resolution has been reached as to the amount of compensation payable under this Act in respect of the acquisition of the land.

There has been concern expressed in the past from constituents that they were pressured by their lawyer to accept an offer because professional costs are not paid until the matter is finalised. Some acquisition matters are not finalised for years and professional fees are not paid until the conclusion.

Professionals often undertake this work even though they are aware that the fees they will eventually be paid will be far less than the commercial rate. It is unfair that they then have to wait for the acquisition to be finalised before being paid. There are also examples where professional fees are not paid by the authority in a reasonable time frame, even after the acquisition has been finalised. The amendment outlines that the authority must pay professional fees on a six-monthly basis.

The Hon. R.I. LUCAS: The government will be opposing this amendment. This amendment would be disastrous in practice. It would reward poor behaviour by claimants and legal practitioners, in effect encouraging disputes to be dragged out in perpetuity. The government intends that the up-front, professional fees payment will not only assist claimants with legal costs but encourage claimants to work with their lawyers to settle quickly. This amendment undoes the effect of that.

In addition to the above, reasonableness of the balance of the professional fees to be reimbursed cannot be assessed until the completion of a matter. I am advised that this is a fairly common practice in matters where an authority or another party is responsible for the reimbursement of fees. Further, if the matter is litigated, the court will often make a decision relating to the payment of legal fees.

The Hon. C.M. SCRIVEN: The opposition is not supporting the amendment.

Amendment negatived.

The Hon. R.I. LUCAS: I move:

Amendment No 2 [Treasurer–1]—

Page 13, after line 8 [clause 20, inserted section 26B]—Insert:

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

This amendment clarifies that one up-front professional fees payment will be paid per acquisition. To give an example, if there is one house with two joint owners, one up-front payment will be made.

The Hon. C.M. SCRIVEN: We will be supporting the amendment.

Amendment carried.

The Hon. R.I. LUCAS: I move:

Amendment No 3 [Treasurer–1]—

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

This amendment clarifies that the up-front professional fees payment applies to investors as well as owner-occupiers. This ensures that those who own an investment property can also receive an up-front payment for the professional costs prior to the acquisition being finalised.

The CHAIR: Amendment No. 3 [Treasurer-1] is not identical to amendment No. 7 [Darley-2], but they seem to be trying to achieve the same thing.

The Hon. R.I. Lucas: We will be opposing [Darley-2].

The Hon. J.A. DARLEY: I move:

Amendment No 7 [Darley–2]—

Page 13, line 16 [clause 20, inserted section 26B(3), definition of prescribed person, (a)]—Delete 'and occupier'

As previously mentioned, this amendment is related to amendment No. 1 [Darley-2].

The Hon. C.M. SCRIVEN: We will be supporting the Treasurer's amendment and not supporting the Hon. Mr Darley's amendment.

The Hon. R.I. Lucas's amendment carried.

The CHAIR: Given the success of the Treasurer's amendment, I will not be putting the Hon. Mr Darley's.

The Hon. R.I. LUCAS: I move:

Amendment No 4 [Treasurer–1]—

Page 14, line 11 [clause 20, inserted section 26D(2)]—After 'section' insert:

or on its own motion,

This amendment allows the authority to make a payment of relocation costs on its own motion as well as upon application. The practical effect of this amendment will be that owner-occupiers will have their relocation costs paid automatically, as is the case now, and investors will have theirs paid upon application if they meet the conditions set out in the section. This amendment ensures that the project team can make a payment without a formal application being required, further reducing red tape and delays in the acquisition.

The Hon. C.M. SCRIVEN: The opposition will be supporting the Treasurer's amendment.

Amendment carried.

The Hon. J.A. DARLEY: I move:

Amendment No 4 [Darley–1]—

Page 14, line 17 [inserted section 26D(3)(b)]—Delete 'the prescribed period' and insert '24 months'

The bill outlines that the authority will pay stamp duty fees on investment properties if a replacement property is purchased within the prescribed period. I understand it will be 12 months. The amendment changes this period to 24 months to give dispossessed owners longer to find a suitable replacement.

The Hon. R.I. LUCAS: The government supports the amendment.

Amendment carried; clause as amended passed.

Clause 21.

The Hon. R.I. LUCAS: I move:

Amendment No 1 [Treasurer–2]—

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.

This amendment is a result of recent discussions between the government and the opposition. The government would like to thank the opposition for their engagement with the issue. The amendment provides that, where an authority seeks to acquire underground land that is less than 10 metres below the surface for the purpose of constructing a tunnel, they are required to prepare a report for the Public Works Committee, including an engineering report on the proposed tunnel.

A dilapidation report is also required for each property sitting above the proposed tunnel, again where it is proposed that the tunnel will be less than 10 metres below the surface. To be clear, nothing in this amendment prevents an authority from acquiring the whole of the land, including the surface area and any properties, using the regular acquisition procedures contained in the rest of the act. The procedure laid out in this amendment involving the Public Works Committee only comes into play for underground acquisitions less than 10 metres below the surface. The amendment also allows for entry onto properties for the purposes of completing the dilapidation reports.

The Hon. C.M. SCRIVEN: The opposition will be supporting this amendment and puts on the record its appreciation for the positive and constructive discussions that we have had with the government over these matters. It is important that there is an opportunity for landowners to have confidence that, if there is any damage to their properties because of underground works, notwithstanding that they are well below the area that is expected, there is the opportunity for that to be acknowledged and, if necessary, remedied. This amendment goes a long way toward reassuring the opposition in regard to a number of concerns that we had in relation to this bill and therefore we will be supporting it.

The Hon. M.C. PARNELL: I have a question for the minister, and it relates to the explanation that the Hon. Clare Scriven has just given in relation to potential damage to a property. As members would all be aware when they come into this place, next door to us a major earthworks operation is underway. We have had piledrivers and there is an underground five-storey car park about to be built.

Members would realise that we had inspectors coming through the building some months ago. They looked at every cornice and every wall, basically identifying cracks that might already be in this building with a view to seeking compensation, I presume, from the developers next door if further cracks appear as a result of the earthworks and the piledriving. Is there anything in this that would assist a person who might not have the tunnel going directly beneath their house but might still find their properties damaged as a result of tunnelling works?

If I can just add, my recollection is that when South Australia lost the Grand Prix, it went to Albert Park in Melbourne. I am not quite sure why they did piledriving work but they did a lot of piledriving work in Albert Park and apparently the houses were cracking up hill and down dale and calls for compensation were widespread. I had a number of people from Melbourne say to me, 'Do you want that car race back?' I know many people would have thought that was a wonderful idea. However, there certainly was a lot of cracking associated with those works, and the fear in this building, in Parliament House, was that we would get cracking as a result of the piledriving works next door.

The Hon. R.I. LUCAS: I am advised that the parliament could lodge a claim should it be able to meet the requirements of the legislation, that is, a dilapidation report would need to be compiled and they would need to make the claim.

The Hon. M.C. PARNELL: Just to clarify my question and the concept of land acquisition, as we have said, your land goes infinitely up and infinitely down. This section deals with the actual acquisition of land that is part of a strata beneath your house, factory, shop, whatever it might be. If you are not directly in the line of the tunnel—in other words, if no part of the tunnel is directly beneath your property but you still suffer loss as a result of the tunnelling operations—is your right to compensation covered by this legislation, or are we just talking about some common law right of nuisance or some other claim that might be made in some court elsewhere? Is there any effect of this legislation? This is compulsory acquisition of land legislation. Is there any impact of this legislation on people who are affected by these projects?

The Hon. R.I. LUCAS: I am advised that the answer is no to the honourable member's question, but you can lodge, if you believed it to be so, a common law claim.

The Hon. M.C. PARNELL: I do not intend to delay the committee long with this. The point that I made before was that the Greens believed that this whole area would benefit from further work, so our intention would be to support those amendments that actually make clause 21 better, but we will be opposing clause 21 at this instance with the hope that the government would undertake more work and perhaps bring it back in a separate bill later. There are four amendments to clause 21. The Greens will support all the amendments because we think it makes the clause better, but we will be opposing the totality of clause 21 at the end because we think that further work is needed.

The Hon. C. BONAROS: I indicate for the record that we will be doing the same as has just been described by the Hon. Mark Parnell.

Amendment carried.

The Hon. R.I. LUCAS: I move:

Amendment No 5 [Treasurer–1]—

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

I am advised this is a technical amendment relating to the introduction of the new section 26H, as discussed in amendment No. 7.

Amendment carried.

The Hon. R.I. LUCAS: I move:

Amendment No 6 [Treasurer–1]—

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.

This amendment clarifies the requirement for landowners whose underground land is being acquired. A positive obligation is imposed on those landowners to advise the authority of other person's interest in the land, which was already a part of the bill, but also their own interest, including specifically if there is a bore or well located on the property. This is vital information for the authority to have not only in terms of the practical engineering requirements of constructing a tunnel through the acquired land but also for the purposes of the limited compensation to be provided for a bore, which is being introduced by the next amendment.

The Hon. C.M. SCRIVEN: This amendment addresses some of the concerns that were raised by the opposition, and therefore we will be supporting this amendment.

Amendment carried.

The Hon. R.I. LUCAS: I move:

Amendment No 7 [Treasurer–1]—

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.

This provision introduces a limited form of compensation where underground land is acquired and, as a result of the acquisition, a legal well or bore can no longer be used. The government would like to thank members in the other place for raising the issue of bores in underground land being acquired. It seems as though this may be an issue that is fairly unique to South Australia. I am advised by DPTI that their interstate counterparts were very surprised to hear that this was an issue, as it has never arisen when building tunnels interstate, as far as they are aware.

This amendment provides that compensation will be paid where a bore can no longer be used due to an underground acquisition. The compensation will be paid on the basis of disturbance, and may be monetary or non-monetary, which is likely to take the form of rectification works or possibly relocating a bore.

The bore or well must be legal in order to be compensated. No compensation will be paid for illegal structures. To be eligible for compensation, a person must have notified the authority of the bore or well in accordance with the procedures in section 26G, and the interest holder then needs to make an application for the compensation within six months of the acquisition.

DPTI will provide landowners with all the relevant information about their rights and obligations at the time that the notice of acquisition is given. The compensation will be paid directly to the interest holder, rather than paid into court, as is the case for regular acquisitions. As can be seen in the provisions, the definition of 'underground water' and 'well' are both taken from the Natural Resources Management Act 2004.

The Hon. C.M. SCRIVEN: As this addresses some of the issues that the opposition had raised, we will be supporting this amendment.

The Hon. M.C. PARNELL: Just out of interest, given that the only tunnels that are currently being considered are in relation to that section of South Road between the River Torrens and Darlington, I expect the government would have done some analysis of how many legal bores there might be, say, 200 metres on either side of South Road. Is the government able to give any indication of how many legal bores might be affected by this provision?

The Hon. R.I. LUCAS: The honourable member's presumption is wrong. The frank answer is that there is no idea at this stage. That sort of work will be done by the project team further down the track.

Amendment carried; clause as amended passed.

New clause 21A.

The Hon. J.A. DARLEY: I move:

Amendment No 5 [Darley–1]—

Page 16, after line 19—After clause 21 insert:

21A—Amendment of section 35—Authority may dispose of surplus land

Section 35—after its present contents (now to be designated as subsection (1)) insert:

(2) However, the Authority must, before entering into arrangements to sell land under subsection (1)—

(a) if reasonably practicable to do so, offer to sell the land to the person who was the owner of the land immediately before it was acquired for an amount not exceeding the prescribed amount; and

(b) provide the person with a reasonable time period in which to respond to the offer.

(3) In this section—

prescribed amount, in relation to the purchase of land by a person, means the total amount of compensation paid to the person for the acquisition of the land.

The amendment requires the authority to give the dispossessed owner the first right of refusal to purchase what was acquired if it is deemed to be surplus. There have been circumstances where property is acquired to hold equipment required for the project and this land is no longer needed at the end of the project. This land should be offered back to the dispossessed owner in the first instance.

The dispossessed owner is not obligated to purchase back the property, but if they do the authority must sell the land back to the dispossessed owner at the same price for which it was acquired. I am also aware of a situation several decades ago whereby waterfront land was acquired for a project. The final project plan differed from the original and the land was no longer needed. The waterfront property was then sold for a premium to a developer. In this circumstance, the dispossessed owner should have been given the opportunity to purchase back the property so they could realise the financial benefit.

There was another example back in the early 1970s, in connection with the proposed Monarto satellite city. That project did not proceed and the land was actually sold back to the original owner for the price they paid for it.

The Hon. R.I. LUCAS: The government is opposing the amendment for the following reasons. The amendment would make the process of disposing of surplus land to become largely unworkable, as it is very rare that a property is available in the same condition and in the same configuration that it is acquired.

Firstly, when a property is acquired, as extensively detailed in this debate, the landowner is compensated. They are compensated to the market value of the property, they are provided professional service fees, compensation, and under the government bill, there are to be provided with a sizeable solatium payment if they are residential owners. This payment directly touches on the fact that the land being acquired may well have been the family home, and aims to put the landowner in the best possible position.

Acquired properties, by definition, are acquired because they are required for project purposes and as such it is very unlikely to ever be a like-for-like position. For example, if a property is acquired and then there is land left over after the project is completed, it will be in a completely different configuration, often without appropriate access due to the project or amenity.

As with any property put on the open market, the landowner has the opportunity to purchase the property back in the unique circumstances it will be disposed of by the project team. It is also likely that a substantial period of time will have elapsed following the acquisition and an owner occupier is very likely to have used their compensation to purchase a new property in which to live and would therefore be unlikely to have immediately available funds to repurchase the surplus land.

This issue is in addition to the high likelihood that the surplus land will no longer be fit for its original purpose in any event. Again, I note this amendment stems from one very specific example provided by Mr Darley. For this and the reasons outlined above, the government does not support the amendment.

The Hon. C.M. SCRIVEN: The opposition is not supporting the amendment.

The Hon. M.C. PARNELL: The Greens do support the amendment but it is one of those ones that we imagine should not be necessary to use too often. I have taken a great interest in the Darlington project and I note two areas there: one is a public park so it is not necessarily going to be covered the way private land would, but it was basically commandeered by the road builders to store materials and bulldozers and whatever else. The other one, which members would be familiar with, is the Women's Memorial Playing Fields on the corner of Shepherds Hill Road and Ayliffes Road, I think it is. Again, that has been effectively commandeered for storage, for equipment, for machinery.

My guess would be that if the reason that the land is needed is for that sort of storage, then mostly a lease arrangement or something else would be arranged other than acquisition, in which case the deal would be, 'We will pay you some money for the inconvenience. We will rent it off you for a year or so. We will fix it up afterwards and you can have it back.' That is not the situation the Treasurer described where the land would not be in the same condition. You would get it back. They would reinstate the tennis courts, I hope, on the Women's Memorial Playing Fields. They are pretty tatty tennis courts but if they got new ones in exchange for having let them park trucks there for a while, that would be a good outcome.

I defer to the Hon. John Darley's long experience in these matters. He has come across examples where a person wanted first rights to get their land back and I cannot see why we could not include that in the act for those rare and special cases. The Greens will be supporting this amendment.

The Hon. C. BONAROS: I indicate, for the record, we will also be supporting the amendment on similar grounds. I recall a case in the northern suburbs that fell into precisely that category and it was the subject of an acquisition. The purpose of that acquisition was precisely for the reasons just outlined by the Hon. Mark Parnell. The owners of the land who had their land acquired so that we could use it as storage facilities and so forth during the development of roads out there did seek first rights in order to be able to purchase that back or did try to negotiate that outcome, but only after their land had actually been acquired.

It turned into a pretty messy situation. That is a lifetime investment that that individual had made and it was quite reasonable in the circumstances for them to request that they have the first rights to be able to purchase land back at the conclusion of the project in question. I think that is the exact sort of scenario that this amendment aims to address; therefore, we will be supporting the amendment.

Amendment negatived; clause passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (21:49): I move:

That this bill be now read a third time.

Bill read a third time and passed.