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Crommelin, Michael --- "Zoning, Taking and Protection of Property Rights in the Urban Developments: Chinese Problems and International Experiences" [2011] UMelbLRS 10

Last Updated: 24 May 2012

CONSTITUTIONAL AND ADMINISTRATIVE LAW CENTER

CENTER FOR PEOPLE’S CONGRESS AND PARLIAMENTARY STUDIES

PEKING UNIVERSITY SCHOOL OF LAW

ZONING, TAKING AND PROTECTION OF PROPERTY RIGHTS IN THE URBAN
DEVELOPMENTS: CHINESE PROBLEMS AND INTERNATIONAL EXPERIENCES

BEIJING, 6-7 AUGUST 2011

LAND TITLE, ACQUISITION AND MANAGEMENT IN AUSTRALIA

MICHAEL CROMMELIN

Zelman Cowen Professor of Law
Melbourne Law School
University of Melbourne
Australia

1. The Constitutional Context

Australian law reflects Australian history. The colonial era is part of that history. From 1788 to 1901, Australia comprised a number of British colonies. A feature of that era is that English law was introduced into all of these colonies.[1]

English land law has feudal origins. There is no concept of absolute ownership of land. Instead, the Crown (representing whichever government is relevant in the particular circumstances) has “radical” title to all land, and all private interests in land are held directly or indirectly from the Crown. English law recognizes a limited number of private titles in land, such as freehold (an estate in fee simple, now almost indistinguishable in fact from absolute ownership), leasehold (conferring entitlement to exclusive possession of land for a term of years), profit a prendre (conferring a right of entry upon land together with a right to extract natural resources from the land), easement (conferring a right of way across land for the benefit of adjoining land) and licence (conferring a mere right of access to land; its status as an interest in land remains uncertain). The radical title of the Crown is residual in nature, conferring no present beneficial interest in the land.[2]

Although colonial Australia in the nineteenth century had little, if anything, in common with medieval England, the feudal model of English land law was initially applied to the Australian colonies.[3] The Crown (on behalf of the United Kingdom government) acquired radical title to all land in Australia, as an incident to the sovereignty derived from occupation.[4] In 1992, the High Court of Australia held that this acquisition of radical title did not, of itself, extinguish native title, the interests in land held by the Indigenous inhabitants of Australia at the time of occupation.[5] Nevertheless, radical title allowed the Crown to extinguish native title by legislative or executive act, and substantial extinguishment occurred in the decades following colonization.

At first, the United Kingdom government exercised control over land in Australia, by virtue of its inherent executive authority.[6] Colonial Governors, acting in accordance with instructions issued from London, granted freehold titles to private landholders. However, the United Kingdom Parliament soon placed land under statutory control with the enactment of the Sale of Waste Lands Act 1842 (UK). Subsequently, that control passed from the United Kingdom Parliament to the legislatures of the various Australian colonies as those colonies obtained self-government. Typically, the constitutions of the newly self-governing colonies proclaimed that the “entire Management and Control of the Waste Lands belonging to the Crown in the [Colony]...shall be vested in the legislature of the said Colony”.[7]

These provisions had two further consequences, beyond the transfer of control over land from the United Kingdom Parliament to the colonial legislatures. The Crown’s title (radical and beneficial) to lands in the Australian colonies was now held on behalf of the governments of the self-governing colonies, rather than the United Kingdom government; and the inherent executive authority over Crown lands was replaced by the exclusive authority of the colonial legislatures to manage and control Crown lands within their territorial boundaries.[8]

The colonial legislatures used this authority to design new land titles.[9] Although these titles were frequently called “leases” or “licences”, they differed in legal character from their English namesakes.[10] Their origins were statutory; accordingly, their legal attributes (rights and obligations) were determined by the provisions of their relevant statutes, rather than the principles of English land law.[11] The result was “a bewildering multiplicity of tenures”,[12] with little in common beyond their statutory nature and the fact that they established an enduring legal relationship between the colonial government and the holder of the statutory title.

In 1901 the Australian colonies entered into a federal union under the Australian Constitution, which established the Commonwealth of Australia as a nation state.[13] The colonies became states in the new federation. The Constitution distributes legislative, executive and judicial power between the Commonwealth and the states. Commonwealth legislative powers relate to specified matters; most are concurrent[14] rather than exclusive powers.[15] In the event of inconsistency between a law of the Commonwealth and a law of a state, the law of the Commonwealth prevails.[16] State legislative powers are not specified in the Australian Constitution; instead, states retain the legislative power vested in them at the time of federation unless the Constitution prescribes otherwise.[17]

The Australian Constitution provides that state constitutions continue in force at the establishment of the Commonwealth, subject to any changes made by the Constitution.[18] It makes no reference to proprietorship of land. Accordingly, the Crown’s title to land (both radical and beneficial) in the Australian states is still held on behalf of state governments, and state legislatures retain the constitutional authority to manage and control Crown lands within their territorial jurisdiction. The Commonwealth Parliament has legislative power to acquire land from any state for Commonwealth purposes (such as defence)[19] but otherwise state legislatures retain the control over land that they obtained during the colonial era.

2. Land Title in Australia[20]

The distribution of land titles varies substantially from state to state in Australia, as shown in the following table.

Title (thousand square kilometres)

QLD NSW VIC SA WA TAS NT ACT TOTAL %

Statutory 958.7 310.0 0.1 419.0 1026.0 0 685.8 0.9 3400.5 44.3

Freehold 647.7 405.9 155.2 347.4 205.1 27.2 523.2 0 2311.7 30.1

Reserves 120.8 85.7 72.3 217.6 1294.4 40.6 137.2 1.5 1970.1 25.6

TOTAL 1727.2 801.6 227.6 984.0 2525.5 67.8 1346.2 2.4 7682.3 100

Statutory titles are particularly significant in Western Australia, Queensland, the Northern Territory and South Australia, which together represent more than 85% of the Australian continent. Freehold titles are predominant in New South Wales and Victoria. Reserves are retained by governments for various public uses including nature conservation, forestry and defence; they represent a substantial proportion of land in Tasmania, the Australian Capital Territory, Western Australia and Victoria.

3. Compulsory Acquisition of Land

(a) Commonwealth

Section 51 of the Australian Constitution confers power on the Commonwealth Parliament to make laws “for the peace, order and good government of the Commonwealth with respect to...(xxxi) [the] acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws”.[21] The High Court of Australia has long held that section 51 (xxxi) has dual functions: to confer legislative power and to require payment of compensation as a condition of exercise of that power.[22]

“It provides the Commonwealth Parliament with a legislative power of acquiring
property: at the same time, as a condition upon the exercise of the power, it
provides the individual or the state affected with a protection against government
interferences with his proprietary rights without just recompense...In requiring
just terms s 51 (xxxi) fetters the legislative power by forbidding laws with respect
to acquisition on any terms that are not just.”

Whether a law is “for the peace, order and good government of the Commonwealth” is a matter for determination by the Parliament. It is not subject to judicial review.[23] Section 51 (xxxi) does not impose any further requirement of “public interest” upon the exercise of the legislative power.

Any acquisition pursuant to Commonwealth legislation enacted under section 51 (xxxi) of the Constitution must be for a “purpose in respect of which the Parliament has power to make laws”. This reflects the federal distribution of legislative, executive and judicial powers between the Commonwealth and the states under the Australian Constitution. The Commonwealth Parliament has limited (albeit extensive) legislative authority, and the limits upon that authority determine the scope of the acquisition power.

The High Court has adopted a broad construction of “property” in section 51 (xxxi).[24]

“[Section] 51 (xxxi) is not to be confined pedantically to the taking of title by the
Commonwealth to some specific estate or interest in land recognized at law or in
equity and to some specific form of property in a chattel or chose in action
similarly recognized, but...extends to innominate and anomalous interests and
includes the assumption and indefinite continuance of exclusive possession and
control for the purposes of the Commonwealth of any subject of property.”

Thus section 51 (xxxi) extends to statutory titles to land, as well as to freehold and other common law titles.[25]

The power is to acquire property. Extinguishment of property, termination of property, and interference with property all fall outside section 51 (xxxi) unless accompanied by an acquisition of property.[26]

“To bring the constitutional provision into play it is not enough that the legislation
adversely affects or terminates a pre-existing right that an owner enjoys in relation
to his property; there must be an acquisition whereby the Commonwealth or
another acquires an interest in property, however slight or insubstantial that may
be.”

Accordingly, Commonwealth legislation which prohibited the construction of a hydro-electricity dam in south-western Tasmania, within a national park nominated by the Commonwealth government for entry in the World Heritage List pursuant to the UNESCO Convention Concerning the Protection of World Cultural and Natural Heritage, did not invoke section 51 (xxxi) of the Constitution as there was no acquisition of property in the relevant Crown land.[27] Likewise, section 51 (xxxi) did not apply to Commonwealth legislation which excised areas from an offshore petroleum exploration permit in order to give effect to an international treaty between Australia and Indonesia, as the High Court held that there was no acquisition of property by the Commonwealth government in the seabed.[28]

The meaning of “just terms” in section 51 (xxxi) is based on a concept of fairness.[29]

“The standard of justice postulated by the expression ‘just terms’ is one of fair
dealing between the Australian nation and an Australian State or individual in
relation to the acquisition of property for a purpose within the national legislative
competence.”

Fair dealing implies full compensation.[30]

“In determining the issue of just terms, the Court does not attempt a balancing of
the interests of the dispossessed owner against the interests of the community at
large. The purpose of the guarantee of just terms is to ensure that the owners of
property compulsorily acquired by government presumably in the interests of the
community at large are not required to sacrifice their property for less than it is
worth. Unless it be shown that what is gained is full compensation for what is lost,
the terms cannot be found to be just.”

In most circumstances, this requirement will be satisfied by monetary compensation, based on market value of the acquired property: “the price which a reasonably willing vendor would have been prepared to accept and a reasonably willing purchaser would have been prepared to pay for the property at the date of the acquisition”.[31]

However, the High Court has recently been asked whether section 51 (xxxi) requires provision of non-monetary compensation in circumstances where a monetary payment does not take account of the particular needs of the person whose property is acquired.[32] The issue arose in relation to the compulsory acquisition by Commonwealth legislation of property in statutory land titles held by Land Trusts on behalf of Indigenous people in the Northern Territory. The Court found it unnecessary to decide the matter, noting that “it may be left for another day.”[33]

Fair dealing also imports procedural obligations.[34]

“It is implicit in s 51(xxxi) that it is for the Parliament to determine what is the
appropriate compensation in respect of an acquisition...[However,] where the
Parliament does not specify the amount of compensation but provides a
procedure for determining what is fair and just, the Court will determine the
nature and extent of the entitlement of a claimant under the procedure
established and the nature of the procedure itself in deciding whether the
acquisition for which the law provides is ‘on just terms’.” (emphasis added)

An acquisition statute may provide for determination of compensation by an administrative tribunal, but the tribunal’s decisions will be subject to judicial review pursuant to section 75 (v) of the Constitution.[35] A statutory provision for payment of “reasonable compensation” determined, in the absence of agreement, by a court exercising federal jurisdiction, satisfies the requirement of “just terms”; “reasonable compensation“ includes interest which accrues during any delay caused by recourse to adjudication.[36]

The Lands Acquisition Act 1989 (Cth)[37] relates to the acquisition of land by the Commonwealth or a Commonwealth authority. It does not itself acquire any interest in land, or confer power to do so; other legislation performs those functions. The Lands Acquisition Act contains procedural requirements and ancillary provisions which apply to the acquisition of an interest in land by agreement or compulsory process, unless the acquisition is effected directly by a law of the Commonwealth (rather than by exercise of a power conferred by statute on a Commonwealth official or authority), or the acquisition is authorized by a law of the Commonwealth which provides that the Lands Acquisition Act is inapplicable to that acquisition.[38]

The acquisition process begins with a declaration in writing that the Minister is considering the acquisition by the Commonwealth or a Commonwealth authority of an interest in land for a public purpose. The declaration must identify the acquiring authority, the land, the interest in the land, the public purpose, the use to which the land will be put, and the reasons why the land appears to be suitable for that use. The public purpose must be a purpose in respect of which the Parliament has power to make laws under the Australian Constitution. It must also be a purpose authorized by the statute conferring the acquisition power.[39] The declaration may also include a statement that the proposed use of the land is connected with the implementation of a policy described in the declaration.[40] A person affected by the declaration may apply to the Minister for a reconsideration of the declaration[41], and if not satisfied with the outcome, may apply to the Administrative Review Tribunal for a review of the declaration.[42] The Act lists matters which are relevant to this review (including the nature of the public purpose identified in the declaration) and matters which are not relevant (including the amount of compensation which may be payable if the acquisition proceeds, and the merits of any policy described in the declaration).[43] Upon completion of the review, the Administrative Appeals Tribunal may make a recommendation to the Minister. The Minister must consider the recommendation, but is not bound to give effect to it. However, if the Minister rejects the recommendation, the Minister must provide a statement of reasons for doing so to each House of the Commonwealth Parliament within three sitting days after the rejection.[44]

The Act acknowledges that a person from whom an interest in land is acquired by compulsory process is entitled to compensation from the Commonwealth in respect of the acquisition.[45] The amount of compensation is that which will justly compensate the person for the acquisition, having regard to all relevant matters.[46]
In assessing the amount of compensation, regard shall be had to all relevant matters including market value, which is defined as the amount that would have been paid for the interest in land if it had been sold at that time by a willing but not anxious seller to a willing but not anxious buyer.[47] The amount of compensation may be determined by agreement between the Minister and the proprietor of the land.[48] In default of agreement, the amount of compensation may be determined by the Administrative Appeals Tribunal[49] or, in certain circumstances, by the Federal Court of Australia.[50] In the last resort, if the Federal Court or the High Court is of the opinion that the application of the provisions of the Act in any case would result in an acquisition that is not on just terms, the Court may rectify the matter by making a determination of whatever compensation is necessary to ensure that the acquisition is on just terms.[51]

(b) State

State constitutions confer power on their legislatures to make laws “for the peace, order and good government” of the states.[52] This power extends to laws for the acquisition of land. Unlike the Commonwealth Parliament, however, state legislatures are not required by state constitutions (or, indeed, by the Australian Constitution) to provide “just terms” (or any compensation at all) for the acquisition of land. As a matter of statutory interpretation, Australian courts are disinclined to construe state legislation in a way that would effect a compulsory acquisition of land without compensation. Nevertheless, if the terms of a state statute unequivocally require that conclusion, courts are obliged to give effect to it.

Each of the state legislatures has enacted a statute, similar in concept to the Lands Acquisition Act 1989 (Cth), relating to acquisition of land within its jurisdiction. These statutes contain procedures for the acquisition of land for public purposes, by agreement or compulsory process. They also provide for the determination of compensation payable in respect of acquired land. These compensation provisions reflect policy decisions in the various states that state governments should usually pay compensation for land acquisitions despite the lack of any constitutional requirement to do so.

The Land Acquisition and Compensation Act 1986 (Vic)[53] applies to the acquisition of land by a person or body (“the Authority”) which is authorized by another Victorian statute (a “special Act”) to acquire land, whenever the special Act makes a declaration to that effect.[54] The Authority must not commence the acquisition process unless the land has been reserved for a public purpose, unless the state government decides that reservation is unnecessary, undesirable or not in the public interest.[55] The Authority must give notice of intention to acquire to each person who has an interest in the land.[56] The notice must identify the interest to be acquired, give details of the purpose for which the interest is to be acquired, and specify the reasons why the land is thought to be suitable for that purpose.[57] The Authority may then acquire an interest in the land by agreement, or failing agreement,[58] by compulsory process.[59]

The Act confers a statutory right to compensation on any person whose interest in land is divested or diminished by compulsory acquisition.[60] The Authority must first make an offer of compensation to any such person, who may accept the offer or make a claim against the Authority.[61] A claim for an amount not exceeding $50,000 is determined by the Victorian Civil and Administrative Tribunal; a claim for larger amount may be determined instead by the Supreme Court of Victoria, at the option of either the claimant or the Authority.[62] The Act contains a detailed statement of factors to be considered (together with matters to be disregarded) in the determination of compensation.[63] Regard must be had to market value[64] of the interest in land on the date of acquisition, together with any special value[65] to the claimant on that date.[66] In addition, the amount of compensation may be increased by up to 10 per cent of the market value of the land in respect of intangible and non-pecuniary disadvantages resulting from the acquisition.[67]

4. Land Use Planning

In all states, legislation regulates land use, development and protection. States use this legislation to protect agricultural land from urban development.

The Planning and Environment Act 1987 (Vic)[68] establishes a framework for planning the use, development and protection of land in Victoria.[69] The principal objectives of the planning framework are to ensure sound, strategic planning and co-ordinated action at state, regional and municipal levels of government, to enable the integration of land use and development planning with environmental, social, economic, conservation and resource management policies at all levels of government, to ensure that the effects on the environment are considered when decisions are made about the use and development of land, and to provide for explicit consideration of social and environmental effects in making such decisions.[70]

Planning schemes based on municipal districts are the principal means adopted by the Act for controlling land use, development and protection.[71] Planning schemes may regulate or prohibit the use or development of any land.[72] The Minister may prepare a planning scheme for any municipal district.[73]A municipal council is a planning authority for any planning scheme in force in its district, but the exercise of its powers is limited by extensive statutory powers conferred on the Minister.[74]

The Minister may also approve standard planning provisions (called “Victoria Planning Provisions”) to assist in providing a consistent and co-ordinated framework for planning schemes in Victoria.[75] Planning schemes must include provisions selected from the Victoria Planning Provisions[76], which include four zones relating to agricultural land. The Farming Zone is the principal zone for agriculture. It allows the use of land for a range of agricultural purposes, and imposes strict controls on other activities. The Rural Activity Zone provides for agricultural and other uses (tourism, commercial, retail) which are compatible with the agricultural and landscape qualities of the area. The Rural Living Zone provides for residential use in rural areas. The Rural Conservation Zone protects the historic, archaeological, scientific, landscape, faunal and cultural values of the natural environment of an area. Agriculture is permitted in such areas where it is consistent with those values.

Acknowledgments

I am grateful to my colleague, Andrew Godwin, for stimulating discussion of the subject matter of this paper, and to Martin Clark for assistance in the research conducted for the paper.

[1] For example, Australian Courts Act 1828 (UK), s.24: “All laws and statutes in force within the realm of England at the time of the passing of this Act...shall be applied in the administration of justice in the courts of New South Wales and Van Diemen’s Land respectively, so far as the same can be applied within the said colonies”.
[2] Mabo v Queensland [No 2] (1992) 175 CLR 1, 50; Western Australia v The Commonwealth (Native Title Act Case) [1995] HCA 47; (1995) 183 CLR 373, 422
[3] Hepburn, “Feudal Tenure and Native Title: Revising an Enduring Fiction” (2005) 27 Sydney Law Review 1
[4] Fry, “Land Tenures in Australian Law” (1946-47) 3 Res Judicatae 158
[5] Ibid
[6] Campbell, “Crown Land Grants: Form and Validity” (1966) 40 Australian Law Journal 35. This inherent executive authority is often known as “prerogative” power; its source lies in the executive (rather than the legislative) branch of government.
[7] New South Wales Constitution Act 1855 (UK), s.2; the term “Waste Lands” referred to lands in which no private interests had been granted by the Crown.
[8] Cudgen Rutile (No 2 ) Ltd v Chalk [1975] AC 520; Wik Peoples v Queensland (1996) 187 CLR 1
[9] Fry, “Land Tenures in Australian Law” (1946-7) 3 Res Judicatae 158; Wik Peoples v Queensland (1996) 187 CLR 1
[10] In Stewart v Williams [1914] HCA 43; (1914) 18 CLR 381, Griffith CJ described these titles as “new forms of tenure” (at 390).
[11] R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327; in that case, Mason J observed that a statutory grazing licence “has to be characterized in the light of the relevant statutory provisions without attaching too much significance to similarities which it may have with the creation of particular interests by the common law owner of land” (at 344).
[12] Millard on Real Property (N.S.W.) 4th ed, 474; quoted in Fry, “Land Tenures in Australian Law” (1946-47) 3 Res Judicatae158, 163
[13] Commonwealth of Australia Constitution Act 1900 (UK)
[14] Constitution, s 51; significant powers include (i)Trade and commerce with other countries, and among the States; (ii) Taxation...; (vi) The naval and military defence of the Commonwealth and of the several States...; (xx) Foreign corporations, and trading and financial corporations formed within the limits of the Commonwealth; (xxvi) The people of any race, for whom it is deemed necessary to make special laws; (xxix) External affairs; (xxxi) The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws.
[15] The exclusive powers of the Commonwealth are listed in section 52 of the Constitution; they include “all places acquired by the Commonwealth for public purposes” and certain types of taxation (“duties of customs and of excise”).
[16] Constitution, s 109
[17] Constitution, s 107
[18] Constitution, s 106
[19] Constitution, s 51 (xxxi)
[20] This table is constructed from the information derived from the following source: Geoscience Australia, Land Tenure (1993 data): http://www.ga.gov.au/education/geoscience-basics/land-tenure.html (searched 27 July 2011)
[21] Ostler, “The Drafting of the Australian Commonwealth Acquisition Clause” [2009] UTasLawRw 10; (2009) 28 University of Tasmania Law Review 211
[22] Bank of New South Wales v The Commonwealth [1948] HCA 7; (1948) 76 CLR 1, 349-50 (Dixon J)
[23] Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55; (1988) 166 CLR 1
[24] Bank of New South Wales v The Commonwealth [1948] HCA 7; (1948) 76 CLR 1, 349; quoted with approval by French CJ in Wurridjial v The Commonwealth (2009) 237 CLR 309, 359-60
[25] Newcrest Mining (WA) Ltd v The Commonwealth [1997] HCA 38; (1997) 190 CLR 513. In this case, the High Court
held that statutory mineral titles granted under the Mining Act (NT) conferred property on the holder within the meaning of s. 51 (xxxi). See also Wurridjial v The Commonwealth (2009) 237 CLR 309, 361-62 (French CJ)
[26] The Commonwealth v Tasmania (Tasmanian Dam Case) [1983] HCA 21; (1983) 158 CLR 1, 145 (Mason J); see also Wurridjial v The Commonwealth (2009) 237 CLR 309, 360 (French CJ)
[27] The Commonwealth v Tasmania (Tasmanian Dam Case) [1983] HCA 21; (1983) 158 CLR 1. The Commonwealth Parliament derived its authority to enact this legislation, not from s. 51 (xxxi) of the Constitution, but from ss. 51 (xx) (trading corporations), 51 (xxvi) (people of any race) and 51 (xxix) (external affairs).
[28] The Commonwealth v WMC Resources Ltd [1998] HCA 8; (1998) 194 CLR 1. The authority to enact this legislation was provided by the Constitution, s 51 (xxix) (external affairs).
[29] Nelungaloo Pty Ltd v The Commonwealth [1952] HCA 11; (1952) 85 CLR 545, 600 (Kitto J); quoted in Wurridjial v The Commonwealth (2009) 237 CLR 360, 388 (Gummow and Hayne JJ)
[30] Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297, 310-11 (Brennan J); quoted in Smith v ANL Ltd (2000) 204 CLR 493, 501 (Gleeson CJ)
[31] Nelungaloo Pty Ltd v The Commonwealth [1952] HCA 11; (1952) 85 CLR 545, 507 (Williams J)
[32] Wurridjal v The Commonwealth (2009) 237 CLR 309. The case is examined in detail in Winnett, “ ’Just Terms’ or Just Money? Section 51 (xxxi), Native Title and Non-Monetary Terms of Acquisition”
[2010] UNSWLawJl 32; (2010) 33 UNSW Law Journal 776
[33] Wurridjal v The Commonwealth (2009) 237 CLR 309, 390 (Gummow and Hayne JJ)
[34] The Commonwealth v Tasmania (Tasmanian Dam Case) [1983] HCA 21; (1983) 158 CLR 1, 291 (Deane J); see also Winnett, “’Just Terms’ or Just Money? Section 51 (xxxi), Native Title and Non-Monetary Terms of Acquisition” [2010] UNSWLawJl 32; (2010) 33 UNSW Law Journal 776, 781-82
[35] Wurridjal v The Commonwealth (2009) 237 CLR 309, 391 (Gummow and Hayne JJ)
[36] Ibid, 389 (Gummow and Hayne JJ)
[37] http://www.comlaw.gov.au/Details/C2011C00350 (accessed 29 July 2011). In 1980, the Australian Law Reform Commission produced a report which recommended substantial changes in the then law relating to land acquisition. The 1989 Act adopted a number of these recommendations: Australian Law Reform Commission, Lands Acquisition and Compensation, Report No 14 (1980), http://www.austlii.edu.au/au/other/alrc/publications/reports/14/ (accessed 29 July 2011)
[38] Lands Acquisition Act 1989 (Cth), s 21
[39] Clunies-Ross v The Commonwealth [1984] HCA 65; (1984) 155 CLR 193
[40] Lands Acquisition Act 1989 (Cth), s 22
[41] Ibid, s 26
[42] Ibid, s 28
[43] Ibid, s 32
[44] Ibid, s 33
[45] Ibid, s 52
[46] Ibid, s 55
[47] Ibid, ss 55-56; see also ss 57-63
[48] Ibid, s 78
[49] Ibid, s 81
[50] Ibid, s 82
[51] Ibid, s 93
[52] In Victoria, the power is to make laws “in and for Victoria, in all cases whatsoever”: Constitution Act 1975 (Vic), s 16. This means the same as for the peace, order and good government of Victoria.
[53] http://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/LTObject_Store/LTObjSt6.nsf/DDE300B846EED9C7CA257616000A3571/8E6D69FF65FD5F1CCA2578BE/ (accessed 30 July 2011)

[54] Land Acquisition and Compensation Act 1986 (Vic), s 4
[55] Ibid, s 5
[56] Ibid, s 6
[57] Ibid, s 8
[58] Ibid, s 18
[59] Ibid, s 19
[60] Ibid, s 30; Horton and Harrison, “Acquiring the ‘Castle’: The Nature of Compensable Interests in Land” (1998) 6 Australian Property Law Journal 1
[61] Land Acquisition and Compensation Act 1986 (Vic), ss 31-33
[62] Ibid, s 81
[63] Ibid, ss 40-45
[64] The amount of money that would have been paid for the interest in land if sold by a willing but not anxious buyer to a willing but not anxious purchaser; ibid, s 40
[65] The value of any pecuniary advantage, in addition to market value, which is incidental to a claimant’s ownership or occupation of that land; ibid, s 40; see also Boland v Yates Property Corporation Pty Ltd [1999] HCA 64; 74 ALJR 209; 167 ALR 575
[66] Land Acquisition and Compensation Act 1986 (Vic), s 41
[67] Ibid, s 44
[68] http://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/LTObject_Store/LTObjSt6.nsf/DDE300B846EED9C7CA257616000A3571/05EBEF40B78605B2CA2578BF001E2A58/$FILE/87_45aa096%20authorized.pdf (accessed 1 August 2011)
[69] Ibid, s 1
[70] Ibid, s 4
[71] Ibid
[72] Ibid, s 6
[73] Ibid, s 8
[74] Ibid, s 8A
[75] Ibid, s 4A
[76] http://planningschemes.dpcd.vic.gov.au/vpps/ (accessed 1 August 2011)