Why not everyone who has their land compulsorily purchased gets compensation


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Australia is currently in the midst of the biggest infrastructure spend in its history.

To make way for the massive projects, governments across the country are using their powers to compulsorily acquire properties.

But what the government wants to acquire can make a huge difference to the outcome for those affected.

“If Daryl Kerrigan in The Castle had been fighting a state and not the Commonwealth to get his property protected, he would have lost,” constitutional lawyer George Williams told 7.30.

And many of those people who are being forced to sell say the current rules are unfair.

Golf course could be slashed in half

Bruce Bourke has been a member of the Camberwell Golf Club for 20 years, and the president for seven.

“My wife tells me I come here too often,” he told 7.30.

“I play Mondays and Thursdays regularly and so I’m at the course a lot. I see what a fantastic public facility it is.”

The club plays on the public Freeway Golf Course in Melbourne’s north-eastern suburbs.

It has been around for nearly 50 years as an 18-hole course, but its future is under threat.

The Victorian Government’s $15.8 billion North East Link is a massive toll road meant to ease traffic congestion.

The new road will acquire 36 homes and more than 100 businesses, and its path could carve through part of the golf course.

Mr Bourke said that would be a huge blow.

“There is no doubt that if this course was reduced from 18 to nine holes, we would lose membership,” he said.

“It’s been confirmed by our members themselves.”

‘Do you think we’d be under this pressure if this was a private golf club?’

State governments have broad powers to compulsorily acquire land to build infrastructure.

The governments decide the amount of compensation that needs to be paid, but generally it’s based on market rates.

For public land, used by the community, that is a hard thing to determine.

“We’re nestled amongst private golf clubs,” Mr Bourke said.

“Do you really think we’d be under this sort of pressure if this was a private golf club?

“It’s a public golf club, and so a lot of the people that play this course regularly are not getting a say in the process that’s happening.”

North East Link CEO Duncan Elliott said the project’s planners had tried to minimise the number of acquisitions needed.

“It’s necessary to acquire part of the Freeway Golf Course because this is a project that’s being delivered in an area that’s been already built up,” he told 7.30.

“It’s a very complex project, linking two of Melbourne’s biggest freeways. And there are complicated areas in the project where we need to go outside existing road reserves to make sure the project can work.

“So, people understand that impact, but they obviously expect that people are fairly treated and looked after.”

When the government takes control of the land under your house

Medical practice manager Christine Allibone-White has lived in the inner west Sydney suburb of Rozelle for more than 25 years.

“We first moved here because it was like a village feel, the park and everything,” she told 7.30.

“It was really close to the city and it just had a really lovely community feel and the kids have all been born here.

“There’s a lot of people who stay here for a very long time. There’s people in the street who have lived here for 70 years.

“It’s just a really nice neighbourhood.”

But that community feel is now under threat.

Rozelle is surrounded by a huge amount of construction, with the WestConnex toll road project cutting past and into the suburb.

Two of the planned tunnels for the project will go right under Ms Allibone-White’s house.

“They’re going to be acquiring land greater than five metres under our property,” she said

“It’s a bit of an unknown quantity.

“When you’re living in a house that is your home, it’s your major investment, it’s concerning.

“It’s like sort of throwing it out for misuse or for use by somebody else, and you’re not in control.”

People might feel a land title means they own all the land from the surface to the sky and to the centre of the Earth. But state governments can take away those rights.

In order to tunnel under someone’s property, the government can unilaterally change the deed to the property to take ownership of the land below.

It is known as “substratum acquisition”.

It is what has happened to Ms Allibone-White, without any offer of compensation.

“There’s just a blanket rule,” she said.

“It’s like, we don’t pay compensation, so we’re not looking at it. It’s not happening.”

She is not expecting millions of dollars, but she thinks there should at least be something.

“I don’t think that’s good enough,” she said.

“I think there should be some acknowledgement that this is affecting your home, it’s affecting your major investment.”

Rights deemed to have zero market value

Lawyer Jessica Rippon said it was very difficult to see the government deciding to pay compensation for substratum acquisitions.

“The situation of substratum is quite different to when land or businesses are being acquired,” she told 7.30.

“In those circumstances, the government spends six months negotiating what they say is market value for that land or that business.

“When it comes to substratum, however, it’s been decided, rightly or wrongly, that the market value is zero.”

Ms Rippon said governments would usually only pay compensation if the infrastructure works damaged the surface of the land, or the buildings on it.

“Once title is changed, you do not own it anymore,” she explained.

“However, if the work that is subsequently carried out causes subsidence or any other damage — cracks, for example — it’s very common then that the government will step in and the contractor will make good the damage.”

In a statement to 7.30, Transport for NSW said the infrastructure projects planned and underway would help shape NSW’s cities and communities.

“The NSW Government makes every effort to avoid the need to acquire private property. However, in some cases, there is unfortunately no alternative,” the statement said.

Commonwealth vs states

Rules governing compensation are dependent on individual state legislation, not national rules.

“The states are quite capable of acquiring somebody’s property without giving a cent in compensation,” constitutional expert George Williams said.

“Their constitutions place no restrictions in that regard.

“But of course, what they have done is they put self-restraint in place. They do often give compensation because they choose to do so, not because they’re compelled to do so.”

But the Commonwealth is subject to greater regulation.

“The Commonwealth is subject to a very clear restriction — it can only acquire property where it gives just terms,” Mr Williams said.

“There have been many court cases in the High Court enforcing that right.

“So, if the Commonwealth takes your property, you are forced to get their compensation.

“On the other hand, if it’s a state, you’ve got a hope that they treat you fairly.

“A consequence of Australia’s system is if Daryl Kerrigan in The Castle had been fighting a state and not the Commonwealth to get his property protected, he would have lost, and that’s because the states have no requirement to give compensation.

“It’s only the Commonwealth that he could have successfully sued in the High Court.”

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