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Does a Public Acquisition Overlay result in compulsory acquisition?

in Property Law by Manisha Blencowe on
Does a Public Acquisition Overlay result in compulsory acquisition?

In Victoria, the process that leads to a compulsory acquisition almost always begins with a Public Acquisition Overlay (PAO) being placed over a piece or pieces of land by the local council. Planning overlays are instruments used by government to restrict the use of land in a variety of ways. A PAO reserves land for a public purpose and is one of the first indicators for a land owner that their land is earmarked for compulsory acquisition.

How long can planning overlays last?

One of the issues with PAOs is that they do not have an “expiry” date and can sometimes be left over the land for decades before an acquisition takes place. This quite commonly occurs along major arterial roads that are planned to be widened, such as Punt Road in South Yarra and Bell Street in Coburg and Pascoe Vale. The issue for land owners is that whilst a PAO may affect and blight their land now, the compulsory acquisition and the right to compensation that arises as a result may be well into the future.

A recent example is the acquisition by VicRoads of a single, residential dwelling on Bell Street, in Pascoe Vale. The property was affected by a PAO that runs mainly on the Northern side of Bell Street from Sydney Road to the Tullamarine Freeway. The PAO is in favour of VicRoads and the purpose is listed as facilitating a road widening. No information on the VicRoads, Moreland City Council or State Government websites suggests a widening of Bell Street is a project that is funded and is imminently commencing. So why was this house suddenly acquired out of the blue?

“Can they do it?” – The answer is yes

VicRoads are well within their powers to compulsorily acquire the property. The law in Victoria does not specify that an acquisition must be undertaken within a certain time of a PAO being placed on a piece of land, nor does it provide for minimum consultation periods with the land owner. The Acquiring Authority only needs to serve a Notice of Intention to Acquire, wait the minimum 2 months as set out in the Land Acquisition and Compensation Act 1986 (Vic) and gazette the Notice of Acquisition. With the publication of the Notice of Acquisition in the Government Gazette, the interest in the property is simultaneously lost by the citizen and taken by the acquiring authority.

If a property is affected by a PAO, it is important that the land owner seek legal advice and be aware of their legal rights.

If you are in Victoria and would like to discuss a matter, call 03 9602 6940. For all other states call 1800 555 777 or message us here.