As reported in the industry publication Urban Developer (see the link: TheUrbanDeveloper.com email@example.com ) Friday 22 November, BCC has decided to seek a Temporary Local Planning Instrument restricting town-house and multi unit developments in precincts that are predominantly Urban Residential ie detached residential. The TLPI has been anticipated for a while now and is in addition to other measures being taken by BCC to rein in town house/multi-unit development across the BCC area. The proposed amendments to City Plan 2014 are to:
- remove provisions in zone codes, development codes and neighbourhood plans supporting Multiple dwellings (townhouses and apartments) in the Low Density Residential zone
- amend other relevant provisions in City Plan to align with this change, including amendments to the Strategic Framework, and make necessary consequential amendments.
The proposed TLPI has major problems for any developer contemplating a development application for such a project. Although only “temporary’, it acts as a definite planning instrument, but only once it has received approval from the State. That hasn’t occurred as yet. So, a small window of opportunity remains. And it may be that the State refuses to support the TLPI (but unlikely). A TLPI, once approved by the State, has a life of two years and then will lapse unless formally adopted in the Planning Scheme. Objections against the TLPI can be made to the State.
BCC has been trying to rein in higher density developments, apart from residential towers, for a while now. Other measures include proposals to revert to a policy of requiring strict compliance with car-parking requirements, a policy it all but abandoned about 5 years ago on the basis that there was decreased reliance on motor vehicles for inner city residents, and Council was promoting the notion of decreased reliance on motor vehicles.
Although the limitation of higher density development in urban residential areas probably has great merit, the proposed TLPI is a blatant political measure in the lead up to Council elections next March. The fact that the Council believes it is appropriate to contradict its own Planning Scheme in such ad hoc fashion is appalling town planning practice.
McCarthy Durie Lawyers are proud to announce our merge with Warlow Scott Lawyers, a Brisbane CBD based firm with a team of eighteen, experts in Property, Commercial and Building and Construction Law. This is an exciting time for MDL, as we continue to increase the breadth and depth of our current range of services, while maintaining our commitment to provide exemplary legal solutions with client focused outcomes.
We are very happy to welcome as Directors, John Warlow and Andrew Pye. John was admitted as a solicitor in 1993, and has dedicated his legal career to commercial and construction law, dispute resolutions and litigation. Andrew brings two decades of Director level experience and a background in accounting (Andrew holds an accounting degree), to compliment his special interest and expertise in commercial matters from joint venture and corporate structuring, to large scale property transactions and commercial tenders. Andrew and John lead a team of capable and professional solicitors, conveyancers and support staff.
Importantly, the team at WSL hold the same communications-based, client centric mantra at their core like MDL, making the future merge of teams an easy transition for both team members and clients alike. Our increase in size means greater access to expert information with our amplified knowledge pool, and strengthened market resilience. Clients of WSL will now have access to a range of services never previously offered, greater scope and support. For clients and team members business will continue as usual, with the added security, capability and infrastructure of a larger firm.
We warmly welcome to WSL team to the MDL family. You can access any of our Brisbane team at either of our two CBD locations.
McCarthy Durie Lawyers / Warlow Scott Lawyers
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South-east Queensland is again experiencing an infrastructure boom (believe it or not) with the State Government and most Councils playing catch-up from a lengthy period of under-investment in infrastructure. Major projects include the recent projects of Lytton Road widening (BCC) and current Centenary Bridge upgrade (State), Cross River Rail (State) and the Inner City South State Secondary College (State) projects.
Whilst it is great to see such projects fulfilling the needs of a growing population, one inevitable consequence is that the relevant authority usually needs to acquire privately-owned “real estate” to facilitate the project. Real estate in this sense includes land, improvements (eg house, commercial building), leasehold, Body-Corporate property, mortgagee and even easement rights). For ease of reference, “real estate” in this article is simply described as “land”. Land-owners are at least fortunate in Queensland to have the protection of the Acquisition of Land Act 1967 (‘AoL Act’) which regulates both the powers of the relevant authority to take land, and the rights to fair compensation for dispossessed land-owners. Some projects such as the Cross River Rail have specific legislation regulating the acquisition and compensation process but it is essentially the same as the AoL Act.
Who can take your land and for what reason?
Essentially, any local authority (Council) or State Government Department (most often, for obvious reasons, the Dept of Transport and Main Roads) can compulsorily acquire privately owned land for any of the purposes set out in Schedule 1 of the AoL Act. The list of purposes is extraordinarily broad, and then further extended such that the purpose need only be ‘incidental to the purpose”. In short, it only needs to be a ‘proper purpose’.
Usually, the authority’s bureaucrats (used in the nicest possible sense!) are very sensitive to the impact on the landowner and are keen to achieve a sensible result regarding compensation payable. Landowners usually receive early notice of the intended resumption and are invited to negotiate the compensation amount. But this is where most landowners let themselves down because it is fair to say that no authority is generous with the public purse and will not pay a cent more than is necessary just to achieve a quick result. Any affected landowner is well advised to immediately seek advices from relevant consultants such as a town planner, valuer and then lawyer to advise on the compensation claimable. And why wouldn’t you do so, because all reasonable cost incurred are claimable against the authority even if the resumption does not ultimately proceed.
Following informal notice of the intended acquisition, a formal Notice of Intention To Resume is delivered by the authority and that Notice advises the land owner of the purpose of the resumption and invites Objections (which are invariably a waste of time and effort – I have never seen any Objection receive a favourable response – perhaps the only likely Objection would be that the resumption was activated by wrongful purpose or is manifestly excessive to the required purpose) and then a claim for the compensation payable. As I noted earlier, a claim can be made by any number of persons with an interest in the land eg owner, tenant, easement beneficiary etc) and the authority needs to ensure that all relevant parties are notified.
Claim For Compensation
If the compensation can’t be successfully negotiated at this early stage, the authority will proceed to formalise the resumption by means of ‘Gazettal’ of the taking ie having the Governor in Council authorise the taking and publishing the resumption in the Government Gazette (which of course no one ever reads, but it is the official record of the authorisation) followed by registration of the transfer of land ownership in the Titles Office. The gazettal is notified to the land owner. The date of gazettal is important for two reasons: first, it sets the date at which the value of the land is assessed (and for that reason it is important to be wary of concluding a negotiated result until close to gazettal because the actual taking may take a long time after the Notice Of Intention To Resume and the property value may have escalated, or plummeted by the time of the gazettal); second, it sets in motion a time period of 3 years for a formal Claim For Compensation to be lodged by any affected party in the Land Court of Queensland. The Court is a specialised jurisdiction dealing mostly with compensation claims. The 3 year time limit is not absolute but it is unwise to delay filing a Claim beyond that date. In due course, the Land Court hears evidence from the appointed valuers, town planners and all manner of other relevant experts such as traffic engineers, hydraulic engineers and the like to determine the compensation and ‘Disturbance’ amount.
So, what is the Compensation based on?
Technically, Section 20 of the AoL Act sets out the basis of compensation assessment “assessed according to the value of the estate or interest of the claimant” but taking account of any enhancement of the value of any adjoining land owned by the claimant but also taking account of reduced value caused to any remaining land (eg where only part of the land is taken, as is often the case) and also taking into consideration any increase or reduction in value caused by the authority’s exercise of statutory powers eg where the land has been affected in value because the authority has over a long period announced its intention to resume. A classic example of this is where the State or local authority has publicly announced its intentions for a road widening but then taken several years to actually issue the Notice or then take the land – the property price will have no doubt reduced in the interim because a buyer will be alert to the proposed taking. This has occurred eg with the State’s announcements for the Centenary Bridge and Pacific Highway, Springwood and BCC’s Canning Bridge projects.
In industry parlance, compensation is to be assessed “on fair and reasonable value as at the date of the taking, based on the highest and best use of the land”. Thus, and this is where it becomes essential for professional advice to be obtained, the value of the taken land is not based on the value of the current use but the land’s potential use. For example, the resumed land might be used for a single residence but its potential use under the local authority’s planning scheme is for a town-house complex, child care centre or some other commercial enterprise. Valuers and town planners have the difficult exercise of not only assessing the value of the land taken but also the impact on value of a partial taking, and also the value unaffected by prior announcements of the authority’s intentions regarding the land.
As I mentioned earlier, the claimant is entitled to also claim all reasonable costs “attributable to disturbance”. Those costs include all professional costs (usually lawyer, valuer, town planner), costs of re-purchasing elsewhere such as stamp duty, mortgagee fees, removalist and storage fees, business interruption and other “economic losses and costs reasonably incurred …that are a direct and natural consequence of the taking of the land”.
Whilst the AoL Act does make reference to “injurious affection” (succinctly, the impact on value of any residual land where eg there is only a partial taking), this is not to be confused with the concept of injurious affection caused where a government authority’s actions impact a land owner’s property rights eg by means of a down-zoning (taking away use or potential use rights) ie changing a commercial use zoning to rural. Whilst injurious affection claims are still ostensibly available under Queensland’s Planning Act 2016 to entitle a compensation claim for loss of development rights, such rights are difficult, convoluted and expensive to pursue.
Land Court determination.
As noted above, the Land Court is the relevant jurisdiction if negotiation for compensation on resumption ultimately fails. It is fair to say that very few matters progress to the Land Court since most are resolved by sensible negotiation before that perilous step is necessitated. Even then, the Court process requires mediation(s) before any Court determination. The Court has discretion to award costs against the unsuccessful party and usually does exercise that discretion. The principle of costs in that jurisdiction is that the party “nearest the mark” (ie the compensation ultimately assessed by the Court) will be entitled to a favourable costs order against the other party.
The above is of course only an overview of the resumption-compensation process under the Acquisition of Land Act 1967. There is a treasure-trove of Court cases not referenced here that assist in interpreting the legislation. And of course the article doesn’t delve into the ‘dark arts’ of valuation and the various methodologies used by valuers to determine compensation, depending on the circumstances of each case. The author Ian Neil and his team can of course assist with all matters relating to the topics canvassed above, and more.
Ian Neil Director Litigation, McCarthy Durie Lawyers.
Ian has over 30 years experience as a solicitor in the Queensland Planning & Environment and Land and Supreme Courts; He is a Life Member of the Redland City Chamber of Commerce, Vice Chair of The Redland Foundation and PP of Cleveland Rotary as well as being Hon. Solicitor to many local community groups; McCarthy Durie Lawyers has offices in Brisbane CBD, Cleveland, Capalaba, Arana Hills, Qld and Sydney NSW.
Originally appeared on the Clegg Town Planning website