On Thursday the 28th of November, 2019, Partner Damien McKenna will be hosting a free information session for landowners affected by the Kooweerup Bypass land acquisition.
Damien will touch on the rights of a landowner affected by land acquisition, the process involved, what your rights are, and what you can be compensated for. This is a great opportunity for anyone being affected by this to come along and have the opportunity to ask questions personal to your situation.
Are you getting what you are entitled to with the Kooweerup Bypass?
The Land Acquisition and Compensation Act 1986 (Vic) (the LACA) allows certain government authorities to acquire an interest in land from a Victorian landholder. In notifying an affected landholder of the acquisition, the authority must provide an offer of compensation that reflects a “fair and reasonable estimate” of the value of the land in question.
Whilst the authority is obligated to base the offer of compensation on a number of factors, it is not unusual for certain issues to be outside of the authority’s knowledge at the time the offer is made. For example, what if part of the land that is to be acquired is used by the landholder for agricultural purposes that are only known to that landholder? It follows that ordinarily, the offer of compensation put forward by the authority will fall short of what the landholder believes that they are entitled to under the LACA. Are you getting what you are entitled to?
When will I know that my interest has been acquired?
Generally, a landholder or a tenant of the land that is being acquired will be aware of the reasons of the proposed acquisition, before the acquisition occurs. However, the acquisition process will formally commence when:
- the authority serves you a Notice of Intention to Acquire; or
- the authority approaches you directly to negotiate the sale of your property.
When do I let my lawyers know about this notice?
You should make contact with Duffy & Simon immediately upon receipt of the Notice of Intention to Acquire or upon an approach by the authority, so as to ensure that the notice is in compliance with the authority’s requirements, and to enable investigations to commence into the impact on your interests of the acquisition.
Do I have to pay my own legal costs?
The LACA provides the costs of obtaining advice and representation from a lawyer about your acquisition is payable by the authority. The costs of obtaining valuation reports and other professional reports are also payable by the authority.
Why should I choose Duffy & Simon?
The role of Duffy & Simon is to guide affected landholders through the myriad of possibilities and risks involved in negotiating a fair and equitable settlement from the authority. Whilst at first glance, an offer of compensation may appear fair and reasonable, but upon close examination of the types of losses that may be claimed may, in fact, fall short of what an affected landholder is entitled to claim.
Do I have to give the authority possession? Under the LACA, the authority is required to negotiate with you the terms upon which it will enter into possession of the land; however, it will be required to serve you with notice detailing the date it will take possession. This date will depend on whether the land is a principal place of business or residence. If you refuse to hand over possession of the land, the authority is authorised to issue a warrant for possession, and use reasonable force to obtain possession of that land.
I have an offer of compensation, what now?
If you have not already done so, you must immediately seek legal advice regarding your offer of compensation. An offer of compensation will be served you within 14 days of the acquisition and will contain the amount that the authority deems to represent a just and fair amount of compensation, together with an explanation of the basis upon which this figure has been calculated.
What can I be compensated for?
The LACA sets out six general areas of compensation that may be taken into account when determining what is fair and reasonable under the scheme. They are:
1. Losses associated with a change in the market value of the land;
2. Any special value which is incidental to the ownership or occupation of that land;
3. Any decrease in market value of any interest in the land attributable to severance of the land, or a portion of that land;
4. Financial losses suffered as a natural, direct and reasonable consequence of the acquisition;
5. Costs associated with obtaining legal advice and valuations incurred as a result of the acquisition;
An award known as “solatium”, being not more than 10% of the market value of the acquired land, representing intangible losses such as loss of a property that has been in the possession of the owner for some time, and loss of the family home.
What if I dispute the offer?
Generally, after your legal representative has had the opportunity to engage qualified valuers and to ascertain your losses, a conference will occur to determine whether an agreement can be reached between the parties.
Please don’t hesitate to get in touch with us for further information on 03 5941 1622.