BILL: Compulsory Land Acquisition

Today Mark outlined the Greens' position in relation to this Government Bill: to support the Bill other than the part that prevents compensation for land owners who have their underground land compulsorily acquired.


Land Acquisition (Miscellaneous) Amendment Bill 

The Hon. M.C. PARNELL: The Greens are generally supportive of this legislation, with one exception, which I will come to in a minute. As the Hon. John Darley pointed out, the bulk of this legislation derives from the findings of a select committee that looked at the process of compulsory acquisition in relation to the roadworks that had been underway, and are still currently underway, along the Main South Road corridor. To the extent that this bill gives effect to those recommendations, we support them.

I will make one declaration here. It is not a declaration that I own properties that have ever been acquired. However, as a young, bright-eyed solicitor in country Victoria, part of my job was doing the compulsory acquisition legal work on behalf of local councils. They invariably involved road straightenings, where historically there were doglegs and things in roads. Councils would want to straighten them up and make them safer, so there would be little corners snipped off farmers' paddocks. The nature of the compulsory acquisition regime is not a question of whether they can—of course they can; that is the regime. The only question is: how much compensation?

When we look at this bill, ultimately that still is the only question. It is not whether they can or cannot do it: they can. The law says that for these public infrastructure works the state can compulsorily acquire your property. The only real argument is the compensation and the conditions.

One area that the Greens still have some concerns over relates to a very topical issue, but it is a new issue for South Australia. That is the construction of tunnels under private land. Interstate, they have a fair bit more experience. In densely populated Sydney and Melbourne, especially in the inner urban areas, where the value of land at the surface is large, a number of tunnels have been constructed.

Some of those states have the advantage of having a property law regime whereby people only own property down to a certain level below the ground. My understanding is that in Victoria and in New South Wales, that is limited to 15 metres. If the road building or road tunnelling is more than 15 metres below your property, then it is not your land anyway; the compulsory acquisition regime does not even enter into it. But South Australian law is a little bit different. I know that Mr President is often disappointed that we do not use enough Latin in this chamber. The law in South Australia is succinctly described as follows: cuius est solum, eius est usque ad coelum et ad inferos, which as members—

Members interjecting:

The Hon. M.C. PARNELL: I am not a fluent Latin speaker, as might be apparent. The translation is: to whom belongs the soil, his is also that which is above it to heaven and below it to hell. That pretty much sums up the law of property. You have an area marked out on a map, on the land, on the ground, and your property extends infinitely into the air and infinitely below the ground. Sir William Blackstone, the great legal commentator, talked about it going down to the centre of the earth. Mind you, mathematically when we do get to the centre of the earth, distinguishing your property from those of Argentinians and Chinese and various others would become complex, as we get to that fine point in the centre of the earth.

That does create a bit of a difficulty for South Australia because, technically, if people do own that land, the question then arises as to whether they are entitled to any compensation. The approach that appears to have been taken is a practical one, where they say, 'If us acquiring your property that is under the ground doesn't affect you in any practical or financial way, then we shouldn't have to pay you any compensation.' That then raises the question of whether all circumstances have been considered, and it appears that as this bill has progressed, first of all someone said, 'What about if you have a water bore? Clearly, that's down into the ground.' They said, 'Okay, we will compensate you for that.'

Other people said, 'Well, what if the tunnel is coming back up to the surface and it's not 15 or 20 metres below your property; it's only 10 metres below your property?' So other amendments have been put forward saying, 'If it's less than 10 metres below, we will acquire the whole property.' There is an extent to which I think this is being made up on the run.

A couple of responses to this dilemma have been proposed. I have heard it said that some members would like to hive off this whole bill to a select committee. I do not support that approach, because as we know, most of it actually came from a select committee in the first place, so it does not make a whole lot of sense to send it all off to a select committee.

It seems to me that there is probably more work that needs to be done on this underground tunnelling acquisition. Another suggestion that has been put forward is that maybe the Public Works Committee could just look at that section, as an appropriate standing committee of parliament. In other words, let the rest of the bill go through. They are sensible provisions, they add to the fairness of the system and, as the Hon. John Darley said, they came out of the thorough process of inquiry, but maybe we should just pause and hold off on the underground portion of this bill, because on the back page of the bill, the words are very clear: 'No compensation is payable in relation to an acquisition of underground land'—no compensation is payable.

That might be an appropriate response in many cases, but is it the appropriate response in all cases? I have had a number of very brief conversations with planning minister, Stephan Knoll, on this. We have gone through a few scenarios: the multilevel underground car park, a wine cellar or a basement. I think in the vast bulk of cases they will not be affected. What we are finding interstate is that it is by no means clear that just because the tunnel is a long way under your property it has not affected you.

Just looking at some of the interstate press, The Sydney Morning Herald five years ago had an article entitled 'Calls for fair compensation for home owners above tunnels'. There is a range of lawyers. Not surprisingly, Slater and Gordon gets a mention in here, and they say:

We have a...client who has an exit tunnel three metres from their fence: they're not protected under the act…

They do not get any compensation at all. There are valuers, professional land valuers, who have come out saying that the residential property market is very sensitive to these things and that people's property values will decline as a result of having a tunnel underneath. It might not be based in a practical implication but, at the end of the day, if it affects the market it affects the market.

More recently, we have in The Age newspaper an article from 10 April under the heading 'Home owners with tunnel beneath their feet should get compensation, reports find'. I thought, 'That's interesting. I wonder what report that was.' The article goes on:

Yarraville residents who will have Transurban's West Gate Tunnel built beneath their properties could be eligible for compensation ranging from $60,000 up to $120,000.

I will not read the whole of the article. The article does refer to Victoria's Valuer-General, who came to a conclusion, which said 'there is generally little difference in the values of properties above tunnels compared to others in the same area' that were not above tunnels. But then you have other valuers who have come out saying that the Valuer-General's analysis was flawed. They point out that looking at land valuations many years after the tunnel was built does not give you a guide to what the impact was either during construction or the uncertainty just prior to construction. As a consequence, you have a range of people coming out in Melbourne saying that people should be entitled to some compensation.

The Greens' view on whether compensation should or should not be payable is not black-and-white. We think there is a bit more work that needs to be done to explore the bounds of circumstances in which compensation should be allowed and should not be allowed. That is my suggestion. Unless we are presented with absolutely compelling evidence to the contrary, the Greens' position is to support the whole of the bill except for the last part, the insertion of part 4A, which is in relation to the acquisition of underground land and includes the provision I referred to before, that no compensation is payable. That would certainly achieve 90 per cent of the what the bill is designed to do and it would put off to another day the question of how we deal with compensation.

The final thing that I would say is that it is difficult to look at this issue in a legal vacuum because we are talking about real projects that are on the horizon for South Australia. I note a meeting that I could not get to the other night. I do not think any of us got there at the Thebarton Theatre because we were sitting here debating important business. That community very much wants tunnels. They do not want the Thebarton Theatre demolished. They do not want the church, the name of which escapes me.

The Hon. F. Pangallo: Queen of Angels, where I was born—baptised.

The Hon. M.C. PARNELL: Queen of Angels, thank you. The Hon. Frank Pangallo was born in the Queen of Angels Church.

The Hon. F. Pangallo: Baptised.

The Hon. M.C. PARNELL: Baptised. That community quite reasonably thinks that the impact on their community will be less if we get a tunnel. The point that I would make is that I think the Greens are the only party who from day one have questioned whether the single biggest project in this state's history, the thing that we should be proudest of in all of the achievements of South Australia, should be a road through the city.

Billions of dollars that have been spent on this project, whether it was the South Road 'super waste', as my colleague the Hon. Tammy Franks labelled it—I think that was $800 million—or whether it was the Torrens to Torrens or near Flinders University near where I live. When we add all this up we will have spent billions and billions of dollars. That might be fine if there was no-one homeless, if all our kids always got breakfast each day, if all our social services were up to scratch, but they are not.

We know, from recent negotiations in relation to social services or the environment, that we have managed to eke out a million here or a million there for the environment, to help people protect private bushland, put a few solar panels on some Housing Trust roofs. Whilst they are all very good and very worthwhile projects, and the Greens are proud to have secured them, they are chicken feed compared to the billions of dollars that has been spent on turning South Road into a freeway.

What this government and what the previous government have failed to recognise is that the congestion problem on most of our arterial roads is not caused by trucks. They are not the cause of the congestion. The cause of the congestion in urban areas is single occupant commuter motor vehicles, and there are alternatives for a vast number of those single occupant cars travelling to and from the suburbs and the city.

Just imagine what sort of public transport system we would have if we had spent the billions of dollars being proposed for freeways and tunnels on public transport. There would be much less congestion. Trucks have no choice: they cannot use the train in an urban area, they have to use the roads. Congestion would be reduced if we gave ordinary folk who are going about their ordinary business some viable alternatives by way of public transport.

With those brief remarks, the Greens support the vast bulk of the bill but reserve the right to oppose that part of it that relates to compensation for underground acquisition, because we believe more work is required in that area.