TAK-02 Taking Orders - NOITT
Version 1 – 08/10/2018
1 Notice of Intention to Take
A Notice of Intention to Take (NOITT) is a notice made by an acquiring authority that demonstrates its desire to acquire a parcel of land or an interest in land compulsorily. The purpose of a NOITT is to inform the landowner, interest holders or any other person, that the acquiring authority intends to acquire his or her land or interest in that land. It also provides those persons with an opportunity to formally object to the taking of the land.
1.1 Contents of a NOITT
A notice of intention to take must include all of the following:
- a description of the land;
- the purpose of the public work;
- the nature of the interests to be taken;
- a statement setting out the particulars of the proposed disposition or grant if it is proposed to make a disposition or grant to any person out of the interests being taken;
- a place where people may inspect a plan of the land;
- the reasons why the land is suitable and needed for the public work;
- the date from which the land is likely to be required;
- the name of a contact officer in the acquiring authority;
- an address for lodging objections;
- a statement as to the effect of section 172 of the LAA, i.e. the requirement that the consent of the Minister must be obtained for any new transactions with the land;
- a statement as to the effect of section 173 of the LAA, i.e. the requirement that no improvements can be made to the land without the consent of the Minister; and
- where native title rights and interests are also being taken the notice must comply with the Native Titles Act 1993 and refer to relevant affected sections of that Act.
1.2 NOITT Process
If land or an interest in land is taken without the consent of the owner and interest holders, a NOITT must be registered with the Registrar at Landgate unless legally exempted from this. Where any interest in land is required for a public work and relevant consents have been obtained, a NOITT may or may not be registered.
After registration of the NOITT, the relevant Minister must:
- cause the NOITT to be published in a daily newspaper circulating throughout the State;
- send a copy of the NOITT to the principal proprietor of any land affected by the notice, the occupier of the land or interest in land, and any holder of native title, mining or petroleum interests, by certified mail or personally. They should also be advised of procedures for the taking of land and their rights if they have not yet been given that advice;
- send a copy to the Director General of Mines; and
- in some circumstances involving Native Title the NOITT must also be publicised through radio stations and newspapers, as required by the LAA and the Native Title (Notices) Determination 2011 (No.1).
1.3 Objections to a NOITT
The principal proprietor or occupier of land affected by a NOITT, holder of any mining or petroleum rights affected by a NOITT, or any management body, whose management order will be affected by a NOITT, may object in writing to the Minister at an address specified in the NOITT. Such objections should not relate to compensation.
An objection must be lodged within 60 days after the registration of the NOITT or such further time as the Minister may allow.
The objection must identify the land and specify the nature of the interest of the objector in the land, the address of the objector and the grounds of objection.
The Minister will consider all objections and determine whether the NOITT will remain unchanged, be cancelled, amended, or substituted. If the NOITT is amended or substituted because of the objection, the amendment or substitution is to be treated as a new notice for the purpose of allowing objections, unless the changes do not affect anyone apart from those who have already objected, and each objector has to agree to the change in writing.
1.4 Extension, Amendment, Cancellation or Removal of a NOITT
The initial NOITT is current for a period of 12 months and commences on registration of the NOITT. The period of currency of a NOITT can be increased by any number of years beyond the initial 12-month period. Any increase in the period of currency must be lodged before the expiry of the NOITT and must be served on the same persons as had been served with the NOITT. There is no power to extend the NOITT if it has already expired.
A NOITT may, at any time during its currency, be amended or varied or substituted by a further notice which must be served, registered and published similarly to the original notice. An amendment of NOITT document can only be lodged after a NOITT has been registered and cannot be lodged to correct a NOITT where the registration of that document has not been completed.
The Amendment document is to set out the land description and the area of those parcels of land proposed to be amended and clearly state the variation. A description of the existing NOITT by document number must be stated somewhere within the amendment document. Generally, the Notice should also include the purpose, reason, nature of interests to be taken, date when the land is likely to be taken, place where the plan can be inspected, contact officer and the address where objections can be sent.
Where a new notice is prepared in substitution of an existing NOITT, a description of the existing NOITT by document number must be stated somewhere within the new notice. The existing NOITT will be removed from all the affected registers on registration of the substituted notice.
The Minister for Lands or his delegates may cancel a NOITT before it expires. The NOITT will be removed from all the affected registers on registration of a cancellation.
A NOITT lodged as a pre-requisite to a taking order is automatically removed from the register on registration of the taking order. An expired NOITT is removed from the register by lodgement of a sundry document by Landgate upon receiving a request in writing from the acquiring authority.
2 Consent for Registration of an Instrument Encumbered by a NOITT
A person cannot enter into a transaction affecting land the subject of a NOITT, without the consent in writing of the Minister or delegated acquiring authority. The exceptions are listed below:
- where the State or Commonwealth, or any authority of the State or Commonwealth, or a person acting on behalf of the State, the Commonwealth or such authority, other than the Public Trustee, is a party;
- for a transfer of an interest in land acquired by sale under a Property (Seizure and Sale) Order;
- discharge of mortgage or charge;
- partition between co-proprietors;
- deed of arrangement between beneficiaries under a will or settlement;
- transmission by a personal representative or survivorship;
- documents vesting land in a trustee of a deceased person, trustee in bankruptcy or newly appointed trustee under an instrument;
- documents vesting land held by a company in a liquidator, administrator, receiver, receiver-manager or manager;
- transfers under terms of a will or intestacy, or by way of gift; or
- deed of assignment or deed of arrangement under the Bankruptcy Act 1966 of the Commonwealth.
Whether or not consent is required, the NOITT must be noted as an encumbrance in the Limitations, Interests, Encumbrances and Notifications panel (where there is one) on any subsequent transaction dealing with land affected by a notice.
3 Notice of Entry
The LAA provides circumstances whereby an acquiring authority, after the issue of a formal notice of entry, can enter on the land prior to completing taking procedures. Entry may be made:
- for a feasibility study of the proposed work;
- for railway construction where the railway construction is subject to a special Act;
- after registration of a NOITT to inspect the land or make an assessment of compensation payable or perform surveying requirements;
- to occupy and use the land temporarily to construct or repair a public work; or
- where the land is required on an urgent basis.
The notice of entry must contain sufficient information and be served on the principal proprietor and occupier, and holders of any native title rights and interests. No endorsement is made on the title to record the fact that the notice has been given, however the titles are updated by the taking order when it is registered at Landgate.
4 Notice of Intention to Resume (Prior to the Introduction of the LAA)
Section 17 of the Public Works Act 1902 provided that before the publication of a resumption in the Government Gazette, the Minister for Works could publish in the Gazette a notice of intention to resume. The notice included where a person could inspect the plan, the value of the work and a description of the land required. A copy of the notice, once it had been gazetted, was sent to the registered proprietor at the address shown on the title and at any later known address.
With the introduction of the LAA, resumptions are no longer carried out by the Minister for Works under the Public Works Act 1902. The relevant sections of the Public Works Act 1902 have been repealed and incorporated into Part 9 of the LAA. Under the LAA, a Notice of Intention to Resume is now called a Notice of Intention to Take and they are initiated by the Minister for Lands or the relevant delegated acquiring authority.