East West Link: Please take (at least some of) mine

Statements attributed to the Premier that, “We will be fair and compassionate in dealing with people who are affected” and “We want to make sure they are properly and fully compensated” are to be applauded. They also lead to scepticism – who exactly are the people affected and what is proper and full compensation?

There is a right to compensation available to anyone who has their property compulsorily acquired. Those people who have part of their property acquired will also be entitled to compensation for what they have lost and for any disturbance to the remaining land that is not compulsorily acquired.

There are some peculiar aspects of this proposal that give rise to some unusual challenges in determining what is full and proper compensation. What if, for example, only a subterranean strata of your land is acquired – for a tunnel beneath your house. What is the effect on the value of your property? Does the incursion actually interfere with your use or is it merely trifling?

Until 1891, land granted by the Crown included “everything above it up to the sky and everything below it to the centre of the earth” (1). Section 339 of the Land Act 1958 now allows the Governor in Council to specify that the grant is only to a specified depth. 50 feet (it’s an old law) is common. It has been suggested that the new east West Link will be at a depth of 30 metres.

But the difficulties faced by those who lose all or part of their property are capable of being resolved with full and proper compensation eventually being paid. The position is not nearly as positive however when the acquisition stops at your boundary, without any part of it actually being taken.

Under current legislation, if no part of your land is acquired, you are not entitled to any compensation.  This applies even if the new road put tens of thousands of cars at your front gate or converts a quiet residential street into an elevated freeway on-ramp.

People in those streets are clearly affected. Unless the government changes the law, they may well be saying, “Please take (at least some of) my property”.

(1)          Bursill Enterprises case [1970-1971]124 CLR at 91 per Windeyer J.