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This information is provided for general informational purposes only and has not been independently verified or tested. It is not legal advice, nor is it a substitute for professional advice tailored to your specific circumstances. Users must conduct their own research and verification to confirm its accuracy, currency, completeness, and relevance to their situation before relying on it or taking any action. No liability is accepted for any loss, damage, or consequences arising from its use.
Key verified distinction for this notice:
Section 51(xxxi) is a Commonwealth constitutional guarantee — it applies to Commonwealth acquisitions and, via intergovernmental arrangement, sometimes to State acquisitions linked to Commonwealth funding. States, under flexible State constitutions closer to the classic Westminster model of parliamentary sovereignty, are understood to have a virtually unlimited power of eminent domain, and the constitutional obligation to pay just terms is not constitutionally entrenched at State level. SSRN
However, this does not leave the Holder without remedy. The notice must therefore be built on multiple interlocking grounds: the common law right to compensation for acquisition of property vested under a Crown grant; the principle of legality; the deprivation/diminution of fee simple value; the argument that where rezoning is linked to Commonwealth intergovernmental arrangements the just terms guarantee is engaged (Spencer); and the equitable/tortious heads of damages. This is more powerful and more accurate than simply asserting s 51(xxxi) against the State directly.
Notice of Claim: Adverse Rezoning of Crown Grant Freehold
Notice Reference: [REFERENCE]-ARN-[YYYY-MM-DD]
Date: [DATE]
To: The Secretary / Chief Executive Officer [STATE PLANNING AGENCY / DEPARTMENT NAME] [ADDRESS]
And to: The Minister for Planning [or relevant title] [STATE PARLIAMENT / OFFICE ADDRESS]
Take notice that John Henry, of the family Doe (“the Holder”), being seised in fee simple of the land described below (“the Parcel”) by virtue of a Crown grant issued under the authority of the Crown of [Colony/State], has been made aware that the [Agency/Department] (“the Agency”) is considering, or has resolved to pursue, a rezoning of the Parcel from its current classification of [CURRENT ZONE — e.g., “Rural”, “Pastoral”, “Primary Production”] to [PROPOSED ZONE — e.g., “Conservation”, “Environmental Protection”, “Rural Residential”, or any other classification that diminishes the Holder’s rights of use and enjoyment].
This notice puts the Agency and the Minister on formal record of the Holder’s position, identifies the legal heads of claim that will be pursued if the rezoning proceeds, and invites the Agency to provide the information and responses specified below within fourteen (14) days.
This notice is served without prejudice to any further steps the Holder may take, and does not waive any right.
Particulars of the Parcel
Current title reference: [LOT / DEPOSITED PLAN / CERTIFICATE OF TITLE VOLUME AND FOLIO]
Originating Crown grant: [Crown Grant Volume / Folio / date of original grant, or if not to hand: “Being land in which the fee simple estate is ultimately derived from a Crown grant issued under the authority of the Crown of [Colony/State], particulars of which will be provided upon request.”]
Current zoning: [CURRENT ZONE AND APPLICABLE PLANNING INSTRUMENT]
Proposed rezoning: [PROPOSED ZONE AND PLANNING INSTRUMENT UNDER WHICH IT IS PROPOSED]
Character of the land: The Parcel has been held and used as rural and pastoral land [for the duration of the Holder’s title / since the original Crown grant], being [describe — e.g., “grazing land carrying [X] head of stock”, “cropping land under [X] acres cultivation”, “mixed grazing and cropping land”, “pastoral land operated as a going farming enterprise”].
Basis of the Holder’s rights
Seisin in fee simple. The Holder is seised in fee simple of the Parcel by virtue of a Crown grant issued under the authority of the Crown of [Colony/State]. The fee simple estate “confers, and since the beginning of legal history it always has conferred, the lawful right to exercise over, upon, and in respect to, the land, every act of ownership which can enter into the imagination”: Commonwealth v New South Wales (1923) 33 CLR 1, Isaacs J. That estate was vested by the Crown’s own prerogative act at the moment of the original grant and has passed with the land through each subsequent dealing to the present Holder.
The incidents of the fee simple — including the right to use, occupy, cultivate, graze, develop, and alienate the Parcel as a productive rural and pastoral enterprise — vested at the moment of the original Crown grant and are not diminished, suspended, or extinguished by subsequent planning legislation without clear, express, and unmistakable statutory authority directed at that outcome.
Principle of legality. Rights vested by Crown grant are not abrogated by subsequent legislation unless that intention is expressed in clear, specific, and unmistakable language: Potter v Minahan (1908) 7 CLR 277; Coco v The Queen (1994) 179 CLR 427. No planning statute in any Australian State expresses, in those terms, an intention to extinguish the right of a person seised in fee simple under a Crown grant to continue using the Parcel for the purposes for which it has been held and worked for [X] years. If any planning instrument were to be read as having that effect, the principle of legality requires the narrower construction — one that does not abrogate the vested rights of the Holder.
Vested proprietary rights and compensation. Legislation that deprives a person of a vested proprietary right without compensation requires express and beyond-doubt legislative authority: Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297. A rezoning that extinguishes or materially diminishes the fee simple rights of the Holder, reduces the productive and commercial capacity of the Parcel, and depresses its market value, is a deprivation of a vested proprietary right. The common law requires that such deprivation be accompanied by compensation unless Parliament has, in the clearest possible terms, authorised the deprivation without it. The Holder puts the Agency to proof that such authority exists in relation to the proposed rezoning.
Heads of claim if the rezoning proceeds
If the Agency proceeds with the proposed rezoning, the Holder hereby gives notice of his intention to pursue all available legal remedies, including but not limited to the following heads of claim.
First — Deprivation of vested proprietary rights under the fee simple estate. The proposed rezoning will extinguish or materially curtail rights of use and enjoyment that are incidents of the fee simple estate as seised by the Holder under the Crown grant. Those rights are proprietary in nature, having vested at the date of the original grant, and include the right to conduct rural and pastoral activities on the Parcel, to develop or improve the Parcel for agricultural and pastoral purposes, and to derive income from those activities. The deprivation of those rights without compensation is prima facie unlawful at common law. The Holder will bring proceedings for a declaration that the rezoning constitutes an unlawful interference with his fee simple estate and for such further relief as the court considers appropriate, including equitable compensation.
Second — Diminution of market value. Adverse rezoning of productive rural and pastoral land to a more restrictive classification — particularly to conservation, environmental protection, or any classification that prohibits or curtails current agricultural and pastoral use — will depress the market value of the Parcel by removing the use rights that underpin that value. The quantum of that diminution is a matter of valuation, and the Holder will obtain a formal valuation in due course. The Holder gives notice that he will seek compensation for all diminution in market value caused by the rezoning, calculated as the difference between:
(a) the market value of the Parcel immediately before the rezoning, having regard to its current zoning and all existing use rights; and
(b) the market value of the Parcel immediately after the rezoning takes effect.
The Holder reserves the right to commission independent expert valuation evidence for the purposes of any proceedings.
Third — Loss of income and productive capacity. The Parcel has been operated as a rural and pastoral enterprise generating income from [describe activities — grazing, cropping, agistment, or other]. A rezoning that curtails or prohibits current and reasonably foreseeable future use will deprive the Holder of that income stream. The Holder will claim all past and future loss of income and productive capacity caused by the rezoning, calculated from the date on which the rezoning takes effect or the date on which the Parcel is no longer commercially usable for its current purpose, whichever is earlier.
Fourth — Constitutional claim where Commonwealth arrangements are engaged. The Holder is aware that a number of State planning and environmental regulations restricting land use in rural and pastoral areas have been enacted in furtherance of, or as a condition of, intergovernmental agreements or Commonwealth funding arrangements directed at environmental objectives, including carbon abatement, biodiversity conservation, or land management outcomes. If the proposed rezoning is connected, directly or indirectly, with any such intergovernmental arrangement or Commonwealth funding agreement, the constitutional guarantee in section 51(xxxi) of the Constitution of the Commonwealth of Australia 1901 (“the Constitution”) may be engaged. The High Court confirmed in Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 that a State acquisition of property rights funded or required by Commonwealth intergovernmental arrangements may constitute an acquisition of property otherwise than on just terms within the meaning of section 51(xxxi), and that such a claim cannot be dismissed without full factual and legal inquiry. The Holder puts the Agency on notice that if any such arrangement is involved in or connected with the proposed rezoning, the Holder will bring proceedings under section 51(xxxi) against both the State and the Commonwealth for acquisition of property otherwise than on just terms.
Fifth — Claim under applicable State acquisition and compensation legislation. The Holder will examine whether the applicable State land acquisition and compensation legislation — including any provision that requires compensation for compulsory acquisition of freehold land or for the extinguishment of use rights by planning instrument — applies to the proposed rezoning. To the extent that it does, the Holder will bring a claim under that legislation for full compensation. The Holder puts the Agency on notice that a rezoning that has the practical and legal effect of compulsorily acquiring, extinguishing, or materially curtailing vested rights of use under a fee simple estate may constitute an acquisition of land or a taking of property within the meaning of those statutes, regardless of the form in which it is effected.
Sixth — Tortious and equitable claims. To the extent that the proposed rezoning constitutes an interference with the Holder’s rights of use and enjoyment of the Parcel, the Holder reserves the right to bring claims in tort and equity, including claims for:
(a) interference with property rights by an unlawful exercise of statutory power, where the statutory power relied upon is itself constitutionally deficient, delegated in excess of authority, or purports to operate on rights that the enabling legislation does not, on its proper construction, reach;
(b) equitable compensation for loss arising from deprivation of a proprietary right vested by Crown grant, where no statutory authority for uncompensated deprivation exists; and
(c) any further tortious or equitable heads of claim identified upon full legal advice.
Seventh — Costs of defending and pursuing these claims. The Holder puts the Agency on notice that all reasonable legal costs, expert valuation costs, and other costs incurred in asserting and protecting the rights described in this notice will be sought as part of any proceedings brought against the Agency.
Notice regarding the common law position and sovereign risk
The Holder is aware that it has become common practice for State governments to conduct adverse rezonings of rural and freehold land without compensation, on the implicit assumption that the State’s plenary legislative power authorises such measures without financial consequence. The Holder does not accept that assumption.
The original Crown grant of the Parcel was an act of the Crown alienating its interest in the land in perpetuity, vesting the fee simple estate with all its incidents in the Holder’s chain of title. The Crown does not retain a reversionary interest that can be exercised by subsequent legislation. The State’s power to regulate land use does not include an unlimited power to extinguish, without compensation, the very rights of use and enjoyment that constituted the substance of what the Crown granted. An exercise of regulatory power that, in practical terms, leaves the Holder with title to the Parcel but strips it of its productive and commercial content — a title that is, in substance, worthless — is not regulation. It is expropriation in regulatory clothing.
Former High Court Justice Ian Callinan AC has observed, consistent with the weight of academic and legal authority, that a Crown grant of freehold, as an alienation of property ownership by the Crown in perpetuity, inherently carries with it a right to compensation for after-the-fact impairments to the grant, and that adverse rezonings without compensation represent a form of sovereign risk usually associated with less settled legal systems.
The Holder adopts that position and reserves all rights accordingly.
What is required of the Agency
The Holder invites the Agency to provide, in writing and within fourteen (14) days of the date of this notice:
- The precise legislation, instrument, and power under which the proposed rezoning is to be effected;
- The constitutional or statutory basis on which the Agency asserts that the fee simple rights of the Holder may be extinguished or curtailed without compensation;
- The Agency’s position on whether the proposed rezoning is connected with any intergovernmental agreement or Commonwealth funding arrangement, and if so, the details of that arrangement;
- Whether the Agency has obtained legal advice as to its liability for compensation, and if so, its position on compensation in principle; and
- Whether the Agency is willing to enter into discussions with the Holder regarding compensation or alternative arrangements before the rezoning proceeds.
If the rezoning proceeds without a satisfactory response to this notice, the Holder will, without further notice, pursue all available legal remedies, including proceedings in [State Supreme Court / Federal Court / High Court of Australia] as appropriate.
Nothing in this notice constitutes a waiver of any right, limitation, or remedy, whether at law, in equity, or under statute, and no conduct of the Holder in relation to any Agency process shall be construed as an acceptance of, or submission to, the validity of the proposed rezoning.
All correspondence to:
John Henry, of the family Doe [Address for correspondence] [Contact details if applicable]
By: ________________________
John Henry, of the family Doe
Authorised Representative
All Rights Reserved. Without Waiver of Rights Under the Crown of the United Kingdom, within the Commonwealth as Proclaimed and Gazetted, and at Common Law
Ubi jus ibi remedium — Where there is a right, there is a remedy.
Drafting notes for the Holder’s use
A few points to keep clearly in mind when finalising and serving this notice.
The distinction between deprivation and acquisition is critical. Section 51(xxxi) of the Constitution is a Commonwealth guarantee and, as a direct ground against a State alone, is of limited force unless a Commonwealth nexus can be established. The stronger grounds here are the common law right to compensation for deprivation of vested proprietary rights, the principle of legality, and the Georgiadis principle. The Spencer ground becomes powerful if any link to Commonwealth funding or intergovernmental arrangements can be identified — and in modern environmental and land management contexts, that link is frequently present (carbon credits, biodiversity offset arrangements, National Landcare funding, and similar programmes).
The notice uses “the Holder” throughout so that it can be adapted to any landowner without redrafting.
The State planning agencies will be well-advised by their own lawyers. This notice is designed to put the Agency on the record, create a formal evidentiary paper trail, establish the Holder’s intention to litigate, and invite a response before proceedings are commenced. Service by registered post with signed acknowledgement is recommended.
This notice is for information purposes only and does not constitute legal advice. The Holder should obtain advice from a qualified barrister with experience in constitutional and property law before commencing proceedings.
Last Updated 6 months ago
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