Can Council Force You to Sell Your Property?

In some circumstances, district or regional Councils can acquire private land for public works under the Public Works Act 1981 (PWA), including for public infrastructure and other public projects.

The PWA sets out a process that must be followed to enable these projects to proceed while protect the rights of private landowners.

The starting point: agreement

In most cases, land will be acquired by agreement between the landowner and the Council.

The process generally involves:

1. the land being identified for a public work;

2. negotiations between the landowner and the Council (often through an accredited supplier);

3. the value of the land being determined by an independent registered valuer; and

4. an agreement setting out the terms of the acquisition, including the amount of compensation payable.

If agreement not reached

If agreement cannot be reached, the PWA provides for a compulsory acquisition process.

This process includes:

1. a requirement for good faith negotiations before further steps are taken;

2. the issuing of formal notices, including notice of intention to take the land; and

3. a right for the landowner to object to the proposed acquisition in the Environment Court.

If the statutory process is followed, land can ultimately be acquired without the landowner’s agreement.

Compensation and entitlements

A key principle of the PWA is that a landowner is entitled to full compensation, so their position is no better or no worse off as a result of the acquisition. Compensation is payable regardless of whether the land is taken by agreement or compulsory acquisition.

Compensation is based on the market value of the land, assessed as if sold on the open market between a willing buyer and seller.

Landowners are entitled (and encouraged) to obtain independent legal and valuation advice, with the council required to meet the reasonable costs of that advice.

In addition to the land value, compensation may also include, if applicable:

• relocation costs;

• compensation for losses or disruption; and

• compensation for land damage or business losses.

Getting advice

Being involved in the acquisition of land for public works can be complex and stressful for landowners. The PWA process includes specific right and entitlements, and outcomes will often depend on how the process is managed and negotiated.

If your property may be affected, it is important to obtain legal advice on your position and the compensation available to you. Our expert Property team are available to help. Contact us at enquiries@toddwalker.com or +64 (03) 441 2743.