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The Problem

Transfer of land by agreement of a title in fee simple carries with it (usually) all of the interest which the transferor has in the land.  Acquisition of land by compulsory acquisition on the other hand carries with it the interests which the acquiring authority seeks to acquire.  Usually the authority is seeking “ownership” of the land, a lease, an easement or some such common interest in land.  Simple!?

Local Councils often acquire land by compulsory process, normally after all attempts to purchase the land by negotiation have failed.  The first step in the process requires the Council to apply to the Minister for Local Government for consent to the acquisition – all going well the consent will be granted, the acquisition gazetted and the Council will then request the Registrar-General for the issue of a Certificate of Title for the land vested in it by the gazettal.  A careless application to the Minister will at that stage reveal itself – instead of a title issuing for the former owner’s fee simple in the land, two titles will issue:  one in the name of the Council excluding any interest in minerals, and the other in the name of the “former” owner as registered proprietor in fee simple of the minerals in the land formerly fully owned by that entity.

This outcome may cause significant problems if the acquisition was for a function of the Council such as the construction of underground car parking or other sub-surface activity.  Minerals, by their nature, do not usually reside above the surface of land and their existence, value, quantity, nature and depth below the surface are commonly unknown to both the Council and the former owner.

For further information about this compulsory acquisitions and the process, please click here.(link is external)

MatthewsFolbigg Lawyers, Parramatta, are specialist planning, local government and environmental lawyers who are able to advise in relation to all matters relating to planning and urban development. Call a planning law expert today on 1800 300 308.