The Public Acquisition Overlay (PAO) is a planning control affecting many properties in Victoria. The relevant planning scheme map will show whether any property is affected by the PAO, to identify land which has been set aside or reserved by an “acquiring authority” for future acquisition. A PAO may include all or part of a property, or many properties.
Where a PAO affects a property, the planning scheme describes the specific purpose e.g; road construction and widening, schools, reserves or municipal development. The PAO ensures that any changes to the use or development of the land while in private ownership do not prejudice the purpose of the overlay. Acquiring authorities include a range of government Ministers and departments, public authorities, utility service providers and municipal councils.
A Planning Permit is required to change the use of land, to build or carry out works, to demolish and remove works, to damage, lop or remove vegetation (subject to some exemptions) and to subdivide land within a PAO. The permit application is referred to the relevant acquiring authority for comment (e.g. VicRoads where the PAO relates to a declared highway). Council must include the comments of the acquiring authority in their decision, whether that decision is to either:
- Refuse the application; or
- Include specific conditions if Council decides to issue a permit.
As with other planning permit applications, Council’s decision can be appealed to the Victorian Civil and Administrative Tribunal (VCAT).
Generally speaking, a PAO is introduced into a Planning Scheme by a Planning Scheme Amendment, a process which in most cases includes the opportunity to lodge submissions and object to the inclusion of the overlay.
Once the PAO is in place, the land maystill be used in the same way it was before the PAO came into effect, but from that point on the land can be acquired, used and developed by the acquiring authority for its specific purpose. There can be some delay between the PAO coming into effect and the land being acquired, sometimes decades!
Compensation
Compensation can be paid to the landowner following the sale of a property affected by the overlay or where a planning application is refused on the grounds that the property is required for a public purpose. Section 41 of the Land Acquisition and Compensation Act 1986 sets out the general principles on which compensation can be paid. The amount of compensation takes into account a number of matters, including (but not limited to):
- the market value of the interest on the date of acquisition;
- any loss attributable to severance or disturbance;
- professional expenses necessarily incurred;
- any previous compensation payments;
- the use of the land at the date it was acquired; and
- any non-pecuniary disadvantages, known as “solatium”.
Development on land affected by a PAO is not prohibited however, as a general rule, compensation will not be paid for any changes made to the property after the date that the PAO comes into effect. Any dispute over compensation can be determined by VCAT or referred to the Supreme Court.
Seek Professional Advice: Information contained in this publication should be considered as a reference only and is not a substitute for professiional advice. No liability will be accepted for any loss incurred as a result of relying on the information contained in this publication. Seek professional advice in specific circumstances.
Copyright: If you would like to reproduce or use for your own purposes any part of this publication please contact enquiries@clause1.com.au for assistance.
Clause1 Pty Ltd Phone: 03 9370 9599 Fax: 03 9370 9499 Email: enquiries@clause1.com.au Web: www.clause1.com.au
Last updated 020910