Compulsory land acquisition is occurring at almost record levels across Sydney and regional areas in NSW, as governments decree that roads and infrastructure projects are the way out of economic doldrums.
That's great for construction firms, but for the people being forced out of their homes or having their investment property seized by the government, it is bad news.
The government promises homeowners will get a fair price, but once the shock of receiving a proposed acquisition notice has worn off, the saga of dealing with authorities begins.
Property owners entitled to have acquiring authority pay reasonable legal fees
The one bit of good news for homeowners facing compulsory land acquisition is that they are entitled to have a specialist lawyer on their side to fight for the best settlement possible - and it's free.
Under the Land Acquisition (Just Terms Compensation) Act, the authority acquiring the property must pay the reasonable legal fees of the person whose home they are acquiring, along with the cost of expert valuations and other reports needed to substantiate claims for compensation.
Many landowners unaware they could receive additional compensation
I have provided legal advice to many people whose homes or commercial or investment properties were being compulsorily acquired to make way for the Western Sydney Aerotropolis, WestConnex, the M12, Sydney Metro and other projects. What I have found is that often people are not aware of the extra compensation they are entitled to receive beyond the so-called market value of their property.
Whether it be full or partial acquisition of your land, whether your land is to be severed or affected by an easement, you should never accept the word of the government or its appointed agents who tell you that the value of the property is predetermined, that their valuation is final and that it can't be increased.
Don't let yourself be bullied like this. We have been able to get payments for property being acquired increased by 15 per cent or more, depending on the circumstances.
Inconvenience, stamp duty, cost of moving and mortgage refinancing
You are totally within your rights to insist on getting your own valuation and your own legal expert to argue for you. After all, the government has a full-time legal team dedicated to acquiring properties; its goal is to pay their owners as little compensation as possible, with the result that property owners are often left dissatisfied.
There are all sorts of claims property owners can make as part of the compensation, including accounting for special use of the property, and financial and non-financial disadvantage resulting from relocation.
Circumstances such as the length of time you have resided on the property and the inconvenience likely to be suffered because of your removal should be assessed and taken into consideration.
The cost of moving and costs associated with buying a replacement home are also important. Stamp duty, legal fees incurred in buying a new home, and refinancing fees of mortgages are all claimable.
Land acquisition for Western Sydney Aerotropolis
I have recently advised more than 20 property owners who have been affected by compulsory land acquisition for the new Western Sydney Airport and surrounds infrastructure, known as the Aerotropolis.
Properties are being acquired by the state government for a range of purposes, including rail corridors, roads, water and electrical infrastructure, parks and environmental purposes. Many homeowners expressed grave concerns about the inadequacy of the compensation they were offered, whether for a partial or full acquisition of their land.
Some concerns were raised due to circumstances where there is to be a rezoning of some properties prior to acquisition, which would seriously devalue the clients' properties. These homeowners needed help and guidance with the process of making submissions, lodging claims for compensation and negotiating a fair and just deal with the acquiring authority.
Property owners want to be secure in the knowledge they will be able to replace their dream home with an equally substantial and quality home in the area of their choice. They want to know they will not be struggling financially and emotionally because of inadequate compensation.
Delays, uncertainty, contractual obligations and family law property settlements
A couple of clients facing planned compulsory acquisition fear they will be disadvantaged by being forced to wait an indefinite period of time before knowing what compensation they will receive, while at the same some facing imminent contractual obligations or having to deal with family law property settlement arrangements.
One family had obtained development approval and had just undertaken the first stage of a multi-million dollar addition to their property, before being advised that the property could possibly be taken away in six, or 12, or 24, or even 36 months.
They needed to know whether their recent investment in the soon-to-be-acquired property would be compensated, and also how they should deal with the impatient contractors who had been contracted to complete the additions and renovations.
Land acquisition for M12 motorway
Another client's property is being acquired for the planned M12 motorway, which will provide access from the M7 Motorway to the Western Sydney Airport. The M12 corridor will sever my client's large acreage.
Acquiring agency Transport for NSW plans to take much of the cleared useable middle section of the property, while proposing to leave two separate but relatively useless smaller blocks.
The client has instructed me to reject offers he has received for either partial or full acquisition as inadequate, and has engaged me to advise and represent him, seeking a better financial outcome.
What happens if acquired properties are not used as initially intended?
In several other compulsory land acquisition matters, clients are concerned that the government may not proceed with the planned infrastructure or use the properties as initially intended, after they are taken.
In other cases there are claims that the government has not correctly followed substantive procedural requirements, which may result in acquisitions being deemed invalid.
Tunneling for WestConnex and danger of subsidence affecting properties
I have advised numerous clients in relation to Sydney's predominantly underground motorway WestConnex. In some areas affected by WestConnex, properties are also subject to compulsory acquisition of the substrata (underground) from just five metres under their homes. Their concerns are understandable, with a large tunnel being built directly under their properties.
Clearly, my clients' legal title and development potential will be affected, and according to property agents' opinions their properties will be devalued significantly as a consequence. The homeowners fear there will be inevitable subsidence of their land, causing the real possibility of damage to the house foundations and walls.
Businesses can claim for additional costs in compulsory land acquisition
The government won't always volunteer this information, but businesses which are forced to move can also claim for several costs including damage to the business, fit out of new premises, removalist fees, phone and computer set up, and advertising the new location.
Mark Shumsky
Compulsory acquisition
Stacks Collins Thompson
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
