25—Principles of compensation
(1) The compensation
payable under this Act in respect of the acquisition of land shall be
determined according to the following principles:
(a) the
compensation payable to a claimant shall be such as adequately to compensate
him for any loss that he has suffered by reason of the acquisition of the
land; and
(b) in
assessing the amount referred to in paragraph (a) of this section
consideration may be given to—
(i)
the actual value of the subject land; and
(ii)
the loss occasioned by reason of severance, disturbance
or injurious affection; and
(c)
compensation shall be fixed as at the date of acquisition of the land; and
(d)
where the claimant's interest in the subject land was liable to expire or be
determined, any reasonable prospect of renewal or continuation of the interest
must be taken into account; and
(e) any
special suitability or adaptability of the land for any purpose shall not be
taken into account if it could be applied to that purpose in pursuance only of
statute, or if the suitability or adaptability is peculiar to the purposes or
requirements of a particular person or of any Governmental or local governing
authority but any bona fide offer to acquire the land made before the passing
of the special Act shall be taken into account; and
(f)
where the value of the land is enhanced by reason of its use, or the use of
any premises on the land, in a manner that may be restrained by any court, or
is contrary to law, or is detrimental to the health of any persons, the amount
of that enhancement shall not be taken into account; and
(g) no
allowance shall be made on account of the fact that the acquisition is
effected without the consent, or against the will, of any person; and
(h) no
allowance shall be made for any enhancement or diminution in the value of the
land in consequence of—
(a) the
passing of the special Act; or
(b) the
acquisition under this Act of any other land; or
(c) any
proposed or expected development of the land after its acquisition; and
(i)
where the land is, and but for acquisition would continue
to be, devoted to a particular purpose, and there is no general demand or
market for land devoted to that purpose, the compensation may, if
reinstatement in some other place is bona fide intended, be assessed on the
basis of the reasonable cost of equivalent reinstatement; and
(j)
allowance shall be made in favour of the Authority for any enhancement in
value of land adjoining the subject land in which the claimant is interested
by reason of development of the land after its acquisition, but in no case
shall the claimant be liable to make any payment to the Authority in respect
of such enhancement in value; and
(k)
where a notice of intention to acquire land has been served upon a person
interested in the land, any sales, transactions, arrangements, licences or
approvals effected or obtained with respect to the land, and any improvements
to the land effected, after service of the notice, shall not be taken into
account unless it is proved that they were effected or obtained bona fide .
(2) The reference to
"loss" in subsection (1)(a) extends, in the case of acquisition of
native title, to diminution, impairment or other adverse effect on native
title that results or will result from the acquisition project. 1
(3) Subject to
subsections (1) and (2), the total compensation payable for the
acquisition of native title must not exceed the amount that would be payable
for the acquisition of an estate in fee simple in the relevant land.
(4) A reference in
this section to a claimant is limited to a claimant who is entitled to
compensation. 2
Explanatory Notes—
1 Compare section 51(1) of the
Native Title Act 1993 (Cwth).
2 See section 22B.