Literary Review of the Russell Report

This document provides a literary review of the Russell Report in the context of subsequent legislative and regulatory changes to compulsory acquisitions. It discusses the implications and recommendations of the report, including the obligations for acquiring authorities, the process of land acquisition through agreements, and the assessment of value in compensation. The document also explores the implications of the new arrangements and the challenges faced by landowners.

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LITERARY REVIEW OF THE RUSSELL REPORT IN THE CONTEXT OF THE SUBSEQUENT
LEGISLATIVE AND REGULATORY CHANGES TO COMPULSORY ACQUISITIONS
Student’s Name
Course
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Background
Improved transparency, fairness and certainty are the fundamental emphasis in the
Land Acquisition (Just Terms Acquisition) amendment Act 2016.The process was asserted by
the Governor and later commenced after days of appointment by the State leadership. The
amendments were envisioned at introducing changes to the Land Acquisition (Just Terms
Compensation) Act 1991 (Act) which is part of a response by the government to an
independent review by David Russell SC in 2014, often known as the Russell review and the
subsequent citizen-focused housing acquisition Review conducted by the Customer service
commission .
Land Acquisition
The changes act introduce an obligation for the acquiring authority to make authentic
attempts to acquire land through the necessary agreement procedures for approximately 6
months prior to taking any step towards acquiring the land through compulsory acquisition.
Such amendments are consistent with the Russell’s recommendations , who pointed out that
both the landowner and the acquiring party are needed to encourage and facilitate bona fide
consultations for an agreed price of the acquisition .The report suggested that a minimum of
six months would provide an appropriate balance between offering landowners with
sufficient timeframe to instruct advisors , receive guidance and carry out negotiations , while
still recognising the acquiring party is not expected to engage in protracted consultations
conducted in leisurely paces. However, we can recognise that there are a number of issues
that ought to be understood for the acquiring party.
The Russell report clearly indicates that during the six-month period, the acquiring
party is required to make authentic attempts to negotiate. However, there is no corresponding
responsibility on the side of the landowner. Therefore, the authority might be required to

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spend more time and resources in order to make the negotiations effective with a landowner
who might genuinely not want to reach an agreement. Loewenstein, Sunstein, & Golman,
(2014) add to this point by indicating that by only providing the requirements for the
acquiring party, there are no opportunities for the landowner to abridge that period other than
with the approval of the minister (s10A (4)) or a simple agreement by the owner (s10A (3)).
S 33 of the Act provides the non-compliance with a set of procedures prior to the
acquisitions in part 3 of the Act but does not validate the acquisition once this has
occurred .Once the land has been acquired through the compulsory process as provided by
the Act, the authenticity of the acquisition is not affected by the failure to adhere to any
requirements of this part on the side of the acquiring authority. The problem is that this
protection is only applicable to the failure to comply with the requirements relating to
providing notice of a proposed acquisition. Section 10A (2) indicates that there must be a
minimum of 6 months in which the acquiring authority may make an attempt to acquire the
property through agreements prior to giving of the acquisition notice.
The question that arises is as to whether the requirements to authentic attempts to
negotiations are related to the giving of prior notice. If this is not done the consequences is
that the safeguards provided under section 33 won’t be available. Therefore, a dispossessed
landowner might be entitled to have the acquisition set aside despite the provision under
section 33. The idea of what is a genuine attempt is not discussed in the report. This is almost
going to be a contentious idea from the landowner’s perspective who might object the
acquisition. Russell, (2014) argues that “what is interesting about the Russell review is what
it does not deal with.” David Russell’s terms of review do not include considerations for the
compensation of landowners in respect of:
• Exploration of coal seal gas and other matters concerning mining

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• Land claims by the aboriginals
• The effects of the native vegetation laws.
• Changes in the law that don’t consider the rights of landowners to conduct
previously legal activities on their land. However, Mahalingam, & Vyas, (2011) posits that
the terms of reference of the review are not innocuous. Therefore, he sets up a series of areas
of consultation.
Transport
Lane, (2017) argues in the consultation paper for a shorter period of notice for the
proposed land acquisition prior to effecting the acquisition notice from 90 to 60 days .He
further proposes that both parties should seek case management for the negotiation process.
As an enquiring authority, they are seeking a simplified and expedited acquisition process in
accordance with part 3 of the Amendment Act. While the acquiring party might want a
shorter period of notice, Alterman, (2010) has proposed a longer period of negotiations and
the right to make it’s a face to face process between both parties, before the acquisition is
finalized.
Where land is acquired by agreement with the landowner
As earlier indicated, this Russell report encourages the acquisition of land through a
mutual agreement between the owner of the land and the acquiring authority. Most of the
land is acquired through this procedure. The most recent studies show that approximately
80% of all acquisitions are made through agreements. Jacobs, & Kirby, (2010) indicate that
acquisition through agreement begins when the acquiring authority reaches out to the
landowner to discuss the terms of contract. The authority will organise for an approved valuer
to advise both parties concerning the value of the land. However, this does not prevent the
landowner from seeking an independent valuer. In most instances, the valuation of the land is

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often exchanged between the acquiring authority and the owner of the land to assist the
parties to reach a better agreement. However, under the Russell report, the acquiring party
must attempt to meet the landowner at least once as an important part of the negotiation
process. This offers the landowner with an opportunity to negotiate with the acquiring party
regarding the acquisition and valuation process. If it is not possible to arrange for a physical
meeting, the acquiring party can attempt to meet someone designated by the landowner to be
his representative. Jacobs, & Kirby further add to this point by stating that, under these new
arrangements, the acquiring party and the landowner must make an agreement on the
compensation package including the valuation of the land. Once both parties make an
agreement, the land can later be transferred to the acquiring authority and payment made,
once everything is confirmed.
Where land has been acquired through such an agreement, the payment given to the
landowner is also determined through the same principle particularly as when the land has
been acquired compulsorily. However, m the Act does not provide the period of time in
which the acquiring party ought to start negotiations with a landowner. It all entirely depends
on the discretion of the acquiring authority to determine the period they feel suitable, having
considerations to the provisions of the act of encouraging acquisition through agreement. As
noted by Singh, (2012), the Russell report proposes that the act need to be amended to
establish a fixed 6 month period of negotiations. This exempts certain circumstances, such as
when the acquiring party and the landowner agree on the purchase before the expiry of the six
month period. The owner of the land might prefer the valuation to be conducted by a valuer
to assess the amount the acquiring party ought to compensate before the expiry of the six
months period.
The implication for the acquiring authority arising from the new arrangements is the
proposed extension in the period of negotiations and giving earlier notice of the proposed

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acquisition and the transfer of ownership. Currently resuming authority can make the
compulsory acquisition of land within a period of 90 days after the proposed notice of
acquisition. The reform recommends an extension of the period to six months compulsory
negotiations period except where the cases might be of high emergency. Neither the Act nor
the Russell report offers explicit guidance on what can be considered an emergency. Ghatak,
& Ghosh, (2011) proposes a merit review to be available to a landowner whose property has
been marked for compulsory acquisition particularly where the claim of hardship to the
allocation is declined. The Russell report also proposes a much bigger role for the valuer
general, with the proprietor directing all their claims directly to the valuing authority rather
than the acquiring authority.
Compulsory acquisition and the assessment of value
According to the new arrangements, the basis of compensation entirely depends on
the acquisition process; the impact of the acquisition on the landowner particularly where the
acquisition made was partial. The nature of the claim will have a significant impact on the
compensation claimable will drive the valuation method used in evaluating the amount for
compensation. Mangioni, (2010) highlights that “the new arrangement shows that the sum of
values is mainly determined by the judgement of the assessment of the land value prior to the
acquisition.” However, this method is not properly understood by some valuer and
landowners who might have given out some part of their land.’ Mangioni further argues that
the challenge with the new arrangement with regard to establishing the value of the land
following partial acquisition is the assessment of the value of the residual land after the
necessary works have been done. The level of difficulty in the assessment of the land value
depends on the nature of the taking and most the general value’s perspective. The main
concern is the impact on the value of the land due to any other environmental consequences
of the easement use.

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The potential for the possession status of land might be argued to be incorporated in
its market value. However Lehavi, (2010) argues that the importance of market value
emerges as a principle for the recognition when a party is no a willing seller, extends beyond
just the market value as defined under the Russell report. The missing link in the
recommended reforms and the actual act is the element of value where a non-willing seller is
presumed to be a willing seller in an effort to develop the traditional market value definition
under the new arrangement. Lindsay, (2012) indicates that “what the acquiring authorities are
attempting to do is make a definition and reduce value acquired in the property into a
financial datum that would later settle non-commercial interests in the land.” This is a matter
of great concern especially for landowners with marginal-value property or land situated in
the lower end of the market such as low socioeconomic locations, and don’t have the
financial capability to increase the debt levels to accommodate alternative high-value
property.
Implications of the new arrangements
It is important to note that the epistemology of value in assessment often provides a
construct in which the value assessment can be defined in settling compensation matters. In
case of a partial acquisition, the Russell report provides that it might be appropriate to help
that landowner where required by offering total acquisition of the property. In such
circumstances, true value testing can be achieved through authentic transactions. The initial
transaction is the collective agreement to purchase the land at the existing market value
unaffected by any other factors. The second transaction involves the sale of a residual part of
the acquired land. This is commended as a good framework as it would provide an option and
encourage collective agreement through negotiations where some discretions are provided to
the landowner. As noted in the Russell report, this might not be considered as a feasible
option by the acquiring authority. Therefore, it is important to incorporate reinstatement

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options within the state acquisition laws. Lindsay, (2012) further recommend that , the
landowner ought to put in the same position prior to the beginning of the acquisition
process .Once this has been achieved , value assessment cannot be done solely by referring to
the market value of the acquired land , but through equal status. While it is important for the
Russell report to draw a clear context on compensation matters, this context ought not to be
influenced by processes that seek to dispense with these matters with expedition and its main
objective.
Hardship
Kombe, (2010) highlights that the other side of the time problem in the acquisition
process, referring to an actual case where the time between land nomination and the final
acquisition was approximately 11 years. This submission required the assessment of an
independent arbitrator to such situation. Perhaps this is the most controversial part of the
Russell review as it is concerned with an owner initiated acquisitions as well as the hardship
test. Under section 21–28 of the Act a landowner is permissible to initiate acquisition of
his/her land by the acquiring party if the owner has been nominated for acquisition for public
purposes. However, Newell, Chan, & Goodridge, (2011) opposes this idea by indicating that,
to initiate the acquisition, the landowner must first prove hardship. He makes a further
submission, where he argues for the owner initiated acquisitions to be eliminated altogether
and further arguing for the expansion of owner-initiated acquisitions .For instance, the two
Coffs Harbour residents waited for 11 years, unable to sell or effectively use their land until
the acquiring authority made an agreement.
Newell, Chan, & Goodridge further argue that it is challenging to meet the hardship
test that landowners are effectively denied an opportunity to constrain an agency to acquire
their property once it has been allocated for acquisition for various public purposes. This

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would prevent the landowners from either effectively use their land or sell it at a market
price. The fact that the hardship assessment is challenging to meet left Curnow, et al., (2017)
to remark that “together with the capability to nominate without serious study, it has resulted
in authorities nominating land on a whim.” \
Conclusion
One major characteristic that distinguish the nature of power conferred from the
exercise of conventional compulsory acquisition, is the continued association between the
acquiring authority and the landowner. Therefore, it is important to strike a balance between
the involved parties in order to ensure none is exploited. How, compensations are measure
should be standardised in a manner that create easements in compliance with the
compensation Act. The Russel report further recommend codification of the measure of
compensation .Such codes could them be integrated by reference to the relevant statute

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Bibliography
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access agreements: lessons from Queensland. The Journal of World Energy Law &
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Ghatak, M., & Ghosh, P. (2011). The land acquisition bill: a critique and a
proposal. Economic and Political Weekly, 46(41), 65-72.
Jacobs, M., & Kirby, M. D. (2010). Law of Compulsory Land Acquisition. Lawbook
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Kombe, W. J. (2010). Land acquisition for public use, emerging conflicts and their socio-
political implications. International Journal of Urban Sustainable Development, 2(1-2), 45-
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acquisition. Property Management, 28(2), 93-103.

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Mahalingam, A., & Vyas, A. (2011). Comparative evaluation of land acquisition and
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