Two South East landholders who had land compulsorily acquired for an environmental drain want to use their experiences to ensure a fair deal for other SA farmers into the future.
Farmer John Ratcliff, Taratap, near Kingston, and neighbours Debbie and Bruce Nulty are calling for a review of the state government’s Land Acquisition Act 1969, which covers land in the path of proposed public infrastructure such as roads, pipelines and drains.
Mr Ratcliff says the existing act is “outdated” with the majority of the land being under perpetual lease when it was enacted. Today most the state’s agricultural land is freehold by government decree.
He argues the act does not clearly address all the adverse impacts on landowners.
At last month’s Livestock SA annual general meeting in Hahndorf, he put forward three motions which were all passed.
The first was to have the lobby group request a review of the government’s compulsory acquisition legislation and policies with a specific focus on the effect on farmland.
The second motion asks for Livestock SA to call upon the government to effectively communicate when caveats and/or easements are imposed on land and address biosecurity impacts, disturbances and disruptions.
In March 2016, Mr Ratcliff received a letter that 69 hectares of his land was to be compulsorily acquired for the $60 million South East Flows Restoration Project.
The 100-kilometre drain to divert SE water into the Coorong is nearing completion, but the Ratcliffs and Nultys are still negotiating compensation.
An independent valuer found an easement and caveat was over Mr Ratcliff’s land – something he was unaware of at the time.
“All acquisitions should be transparently explained by independent persons rather than any entity with a conflict of interest,” he said.
Mr Ratcliff’s third motion called for Livestock SA to petition the Australian Tax Office to clearly describe how capital gains tax operated in acquisition cases, and the income tax implications if livestock or equipment needed to be sold.
He says this is not clear at the moment.
He also believes a full economic analysis, which is publicly available, should be done before any project is given the green light, especially outlining lost agricultural productivity.
“Are there economic implications going forward for the local government or the state?”
Mrs Nulty strongly agrees on the need for greater consideration for agriculture and the requirements on farmers to produce safe food, in compulsory acquisition cases.
As a result of this acquisition, the Nultys’ two properties have been split in half to accommodate the environmental drain and she is especially concerned about how this will affect their ability to fulfil the requirements of the Livestock Production Assurance program.
Strict biosecurity requirements have been recently introduced and Mrs Nulty feels this drain presents potential risks to their livestock and livelihood with contractors accessing land during construction and the public corridor now running through their properties.
“Should this situation for which we have had no say in the matter impact on our ability to meet the requirements of the LPA program and our legal responsibility of producing clean, safe food?,” she said.
“Will we be assumed the perpetrator or the victim - all for a drain that we didn't ask for and has no direct benefit to us at this time?”
A state government spokesperson said the land for the SE Flows Restoration Project had been acquired in accordance with the Land Acquisition Act 1969.
“A fair equitable, transparent and justified acquisition process and independent valuation to determine market value for compensation amounts had been undertaken,” the spokesperson said.
Ten of 13 landholders had accepted their compensation offers and payments had been finalised.
The project continues to engage with the remaining three landholders to resolve the compensation matters.
Compulsory land acquisitions are complex, according to Mellor Olsson partner Tim Mellor, who encourages any affected landholders to seek legal advice.
Mr Mellor says landowners should be aware most of these costs, as well as other professional costs such as accounting fees, are covered by the government.
He has considerable experience dealing with acquisitions under the Land Acquisition Act 1969 but accepts further amendments could be beneficial.
“I accept that it is often done in a heavy handed and insensitive way by the authorities and it can be very upsetting, especially where that land has been held by someone for a long time,” he said. “Livestock SA would need to go to the government with specific areas it wants changed.”
Under existing law, the state government authority must issue a notice of intent to the landowner along with a “sufficient offer”.
The landholder has the right to object under property law but is rarely successful stopping a ‘public good’ project, with the negotiations becoming more about the value of the land.
Mr Mellor says farmers may also be able to argue injurious affection for further compensation if their businesses are negatively impacted long-term.
“Some people argue there should be a premium paid above the market value if someone’s land is taken away but there is an obvious concern that someone may hear about a development and buy up land in hope of doubling their money,” he said.
This article was written by Catherine Miller and was published in The Stock Journal on Thursday 18 October 2018.
Practice Area: Farm Law