• May 1, 2020 in Agricultural Law, Commercial Law

    INLAND RAIL – QUEENSLAND RESUMPTIONS

    IT’S COMING LIKE IT OR NOT: YOUR GUIDE TO WHAT TO DO

    Queensland position:

    While about two third of the route from Melbourne to Brisbane will use existing rail corridors, in Queensland the position is different and will require substantial compulsory acquisitions (resumptions)  in relation to the following Queensland stages: –

    – NSW border (Yelarbon) to Gowrie.

    – Gowrie to Helidon

    – Helidon to Calvert

    – Calvert to Kagaru

    – Kagaru to Acacia Ridge/Bromelton

    The Yelarbon to Gowrie stage is currently attracting the most concern because of its potential impact on the viability of agriculturally important and valuable Condamine flood plain properties. Equally significant impacts will likely be caused in all stages depending upon the specific and differing impact of resumption on each particular affected landowner.

    Purpose and Objective of this Publication

    The objective of this publication is to assist any affected parties in making sure you are in a position to achieve the best outcome from any resumption of your property.

    We will briefly outline the process and make general suggestions as to the types of preparatory action you should be talking at various stages in the process.

    The impact of a resumption can differ vastly from property to property. For example if the resumed land is in poor country and on the boundary of the property so that it has no major impact upon the operation and viability of the property, the position is comparatively simple. It is a case of just making sure you get proper compensation for the value of the resumed land. On the other hand if the resumed land bisects the property it is likely that it will present much more complex issues. Those issues include: –

    • Access difficulties in trying to operate a property divided by rail line.
    • Impact on water flows and consequential ramifications including economic, environmental or  erosion .
    • Ongoing economic impact on the cost of operation and ease of management of a divided property.

    Process Steps

    While there is no legal obligation on the constructing authority (i.e. the party making the resumption) to consult with affected parties prior to issuing a formal notice of intention to resume, the Australian Rail Track Corporation (ARTC) has indicated that it intends to work with the Queensland constructing authority which will be making the required resumptions (Constructing Authority) to consult with affected landowners during the design process.

    If your property is likely to be seriously impacted by a proposed resumption then it will be important for you to engage seriously in this informal process as the Constructing Authority may be prepared to agree to variations of modifications that will minimise the impact of any resumption on your operations. We understand that this process has commenced but in many cases without resulting in any significantly useful outcomes for affected landowners.

    In order to get the best outcome it will be necessary for you to obtain experienced accounting advice as to the likely impact of the resumption on the ongoing profitability of your operations even at this early stage. If the constructing is already can see you have a significant claim for compensation because of the resumption, it is likely to make them more responsive to changes in order to minimise the likely compensation claim.

    Notice of Intention to Resume

    The Constructing Authority is required to give you a notice of intention to resume your land. Once that notice is served you have the right to make an objection in writing to the land being taken before a date not less than 30 days after the date of the notice

    Matters pertaining to the amount or payment of compensation are not grounds for objection. In general term objectors are entitled to procedural fairness by the Constructing Authority. Despite that in the case of a project such as the Inland Rail our view is that it will only be in exceptional cases that the objection process is likely to totally prevent a resumption. The objection process may however in some cases result in meaningful amendments to the proposed resumption area.

    If no objections are made or if after due consideration ,  the Constructing Authority is satisfied the resumption should proceed then the Constructing Authority can apply to the relevant minister to take the land by means of a gazette resumption notice. This application is required to be made within 12 months after the notice of intention to resume is served

    Gazette Resumption Notice – Compensation Rights

    From the date of the publication of the relevant gazette, title to the resumed land passes to the Constructing Authority. Parties having an interest in the resumed land whether as owner ,lessee, mortgagee or easement holder have a right to claim compensation under the  Acquisition of Land Act !967 (the Act. The amount of compensation can be negotiated between the claimant and the Constructing Authority subject to consent of any mortgagee.

    Making a Claim for Compensation

    If the claimant is not able to negotiate the amount of compensation , the onus is on the claimant to serve on the Constructing Authority a written compensation claim within three years of the land been taken. The compensation claim must set out various matters set out in section 19 of the Act. In practical terms to key matter is an itemised statement of the claim showing the nature and particulars of each item as well as the total amount of compensation claimed.

    In order to maximise the prospects of successfully and promptly negotiating settlement of a compensation claim at the maximum realistic figure it is important that the claim is prepared with care and proper professional advice where the resumption will put at risk or result in the loss of some form of animal welfare certification or approval  (such as the RSPCA) or an organic certification or approval the economic loss will be significant. In these and any other cases where the resumption impacts the viability of a business enterprise conducted on the remaining part of the resumed land, it will be vital to obtain specialist accounting advice from accountants experienced both in resumption and also more importantly the complex financial modelling applicable to the relevant industry be that agricultural or some other business. This is imperative in order to fully and properly determine the full extent of ongoing business losses. Some cases will also involve not just establishing the value of the resumed land and economic business losses but may also involve the cost of acquiring replacement land and relocation costs.

    Legal, valuation and other professional fees and costs reasonably incurred by the claimant in properly preparing and filing a claim are able to be claimed and so claimants will not be out of pocket for expenses properly incurred.

    In many cases it will be of significant financial advantage to ensure that the compensation claim is made and payable in a particular manner to ensure that it does not become taxable. We will be shortly adding a further section to this Guide, contributed by the Toowoomba office of RSM . RSM are very experienced in this type of resumption work and this section will set out some of the key factors for you to consider both in terms of calculating economic loss and ensuring tax effective structuring.

    Referral to Land Court

    The preferred course both in terms of time and cost is to resolve claims by negotiation with the Constructing Authority.  The actions we have suggested above and our approach to these matters are designed to maximise the prospects of negotiating a claim with the Constructing Authority for the highest realistically achievable amount.

    If the claimant and the Constructing Authority are not able to resolve the claim either the claimant or the Constructing Authority can refer the matter to the Land Court for de termination. This can be done at any time after the claim has been lodged with the Constructing Authority.

    Our Approach

    Our approach is as follows: –

    • Firstly to focus upon the specific circumstances and details of each individual claim in order to fully understand the impact of the resumption on the individual property. Only by adopting this approach can your claim be fully and properly made and the proper amount of compensation paid. Put shortly resumption claims are not sensibly dealt with by class actions because the impact of resumption differs so greatly from property to property.
    • Secondly in cases where the resumption will have a significant impact on the profitability or viability of an agricultural or other business enterprise, we believe it is critical to obtain the best financial advice in order to determine the full ongoing financial impact of the resumption. It is vital that this advice is both detailed and more importantly robust so that it will stand up to critical review by the Constructing an Authority and its advisors. In this regard we can confidently recommend RSM Australia Pty Ltd. We are confident Will Laird and David Lethbridge in the Toowoomba office have the required specialist experience in such matters and are familiar with local rural and other businesses
    • Thirdly in relation to valuations again it is important to engage valuers who are experienced in resumption matters and with knowledge of the local area. We have identified a number of local valuers who have a very good track record in producing valuations which are reliable and most importantly stand up to scrutiny in circumstances where other parties are seeking to challenge the valuation.
    • Fourthly we strongly believe in the old adage  “That  a champion team will always beat a team of champions” For that reason we have established strategic working relationships with the other vital professional advisors needed in these matters namely accountants and valuers.

    What this approach means to clients is that we have the ability to deliver a complete local team (working as a team) and with all the needed skills and local knowledge to deliver the best outcome.

  • March 13, 2019 in Agricultural Law, Commercial Law, Litigation

    Native Title Blow for Primary Producers

    Primary producers who have battled drought and flood along with continually challenging economic conditions have been dealt yet another blow with a Federal Court ruling against a pastoral holder who applied to upgrade her tenure to freehold.

    Creevey Russell Lawyers Principal Dan Creevey said the refusal by Justice John Reeves in the Federal Court to grant an order by Sophie  Pate that native title did not exist over her cattle property near Carmila in North Queensland was “another nail in the coffin for primary producers” and should be appealed.

    “Just when you thought it can’t get any harder for primary producers, the Federal Court has cast a shadow over the ability to obtain a determination that native title does not exist over country, and therefore the ability to freehold that property,” he said.

    Mr Creevey said Ms Pate sought to upgrade her tenure to freehold and commenced a non-claimant application seeking an order native title did not exist over her property.

    “The application was not contested and there wasn’t a native title claim filed in response, with the applicant arguing the court could infer no native title existed on her land,” Mr Creevey said.

    “But Justice Reeves ruled even though the application was unopposed, the applicant must prove on the balance of probabilities that native title did not exist. He found to make an order that native title did not exist would be contrary to the objectives of the Native Title Act 1993.”

    Mr Creevey said the Reeves judgment has foreshadowed a view on the Native Title Act which may result in a failure of the application no matter how strong the evidence that native title does not exist.

    “The Court arrived at a conclusion in the Pate case that a negative determination of native title would prevent any future application for compensation against the State for loss of native title rights and would be contrary to the objects and purposes of the Native Title Act,” he said.

    “The concern arising from this is that someone, somewhere may have an unexercised native title claim but that granting an application for a determination that native title does not exist will forever prevent that right being exercised.

    “This is despite a section in the Native Title Act which provides expressly for the reservation of compensation claims against the state when non claimant application provisions are utilised.

    “At the moment the Court has only expressed a qualified view on the state of the law but if that view is confirmed, freeholding of any country where native title has not been extinguished will not be on option.

    “The opportunity to persuade the Court of a contrary view should not be missed but will require the joining of forces to promote a favourable outcome.”

    Further Enquirers, please contact our Litigation Team:

     

    Dan Creevey
    Principal

    Ph:       +61 7 4617 8777
    Email:    

  • February 7, 2018 in Agricultural Law, Litigation

    CREEVEY RUSSELL LAWYERS INVITES ALL TO SHATTERCANE CLASS ACTION INFORMATION EVENING IN WILLOW TREE– 13TH FEBRUARY 2018

    Leading legal firm Creevey Russell Lawyers will provide its first update for 2018 on its class action against Advanta Seeds Pty Ltd, previously trading as Pacific Seeds, on behalf of growers who used MR43 Elite sorghum seed anytime between 2010 and 2014 and have suffered a Shattercane infestation on their land due to the use of that seed.

    Creevey Russell Principal Dan Creevey said the firm will be hosting an information evening at Graze Willow Tree Inn on Tuesday, 13 February, 2018.

    “The latest position pleaded by Advanta Seeds in their defence is that the term “shattercane” is uncertain and as a result, they do not know and cannot know the meaning of the term,” Mr Creevey said, “It is disappointing to both me and the farmers that they now won’t even recognise the term shattercane as a known industry term.”

    Creevey Russell last year obtained funding to proceed with the class action for group members on a No Win, No Fee basis.

    The class action seeks to recover compensation for losses that sorghum growers are alleged to have suffered as a consequence of planting contaminated MR43 Elite sorghum seed.

    “Any person who has been affected by Shattercane after planting MR43 Elite seed should attend this meeting to see whether they might be able to benefit from this action,” Mr Creevey said. “The farmers have been suffering from the impacts of shattercane for a long time and I am proud to be able to fight for them”.

    The class action was initiated in Queensland but has also extended to include those sorghum growers in New South Wales who have also been affected.

    Shattercane is a noxious weed which if present in a sorghum crop competes strongly with the planted sorghum and results in a reduced yield. Once present on the land, it can spread vigorously quickly infesting and overrunning the land. It is also difficult to eradicate, often meaning that the land cannot be used commercially for a considerable time.

    Please contact 07 4617 8777 to register your interest in attending the information session, at Graze Willow Tree Inn, 18 New England Hwy, Willow Tree NSW 2339, from 5.30pm-7.30pm, on Tuesday, February 13, 2018. Refreshments will be provided.

    When: Tuesday 13th of February at 5.30pm

    Where: Graze Willow Tree Inn – 18 New England Hwy, Willow Tree NSW 2339

    RSVP: CLICK HERE or call 07 4617 8777

  • February 2, 2018 in Agricultural Law, Commercial Law

    Work with Your Heavy Vehicle Transporters to Ensure Safety

    Primary producers have a responsibility to ensure goods they send or receive via a heavy transport vehicle are delivered safely and adhere to Heavy Vehicle National Law (HVNL), says leading legal firm Creevey Russell Lawyers.

    Creevey Russell Principal Dan Creevey said the National Heavy Vehicle Regulator (NHVR) recognises the important role growers, farmers and fishermen play in feeding Australians and providing quality produce to overseas markets.

    Mr Creevey said primary producers, as parties in the road transport supply chain, will have specific obligations under the HVNL, which commences on July 1, 2018, to adhere to the ‘Chain of Responsibility (CoR)’ to ensure safety by preventing a breach of the law.

    “This requires each party in the supply chain with the ability to control or influence the transport activity to take positive steps to prevent mass, load restraint, dimension, fatigue and speed offences,” he said.

    “As a primary producer, any time you send or receive goods using a vehicle that can carry more than 4.5 tonnes – regardless of whether the vehicle is yours or someone else’s – you become part of the supply chain. You therefore have a shared responsibility to prevent breaches of the law.”

    • Mr Creevey said it was important for primary producers to work with their transporters and fully understand the requirements of the HVNL.
    • “Avoid making demands of transporters that may lead to speeding, driving while tired or overloading and ensure all loads are within legal limits and properly restrained. If you’re using your own truck, make sure it’s maintained to a roadworthy standard.”

    For more information on the HVNL and CoR, visit www.nhvr.gov.au/cor.

    Further inquiries:

    Dan Creevey (07) 4617 8777

    About Creevey Russell Lawyers

    Creevey Russell Lawyers is a full service law firm which operates primarily from our Brisbane practice, with the capacity to provide superior legal services to western Queensland through our Toowoomba practiceCreevey Russell Lawyers deliver results to a variety of clients including developers, corporations, accountants, liquidators and private clientele.

  • January 30, 2018 in Agricultural Law, Litigation

    CREEVEY RUSSELL LAWYERS INVITES ALL TO SHATTERCANE CLASS ACTION INFORMATION EVENING IN TOOWOOMBA – 6TH FEBRUARY 2018

    Leading legal firm Creevey Russell Lawyers will provide its first update for 2018 on its class action against Advanta Seeds Pty Ltd, previously trading as Pacific Seeds, on behalf of growers who used MR43 Elite sorghum seed anytime between 2010 and 2014 and have suffered a Shattercane infestation on their land due to the use of that seed.

    Creevey Russell Principal Dan Creevey said the firm will be hosting an information evening in their Toowoomba offices on Tuesday, 6 February, 2018.

    “The latest position pleaded by Advanta Seeds in their defence is that the term “shattercane” is uncertain and as a result, they do not know and cannot know the meaning of the term,” Mr Creevey said, “It is disappointing to both me and the farmers that they now won’t even recognise the term shattercane as a known industry term.”

    Creevey Russell last year obtained funding to proceed with the class action for group members on a No Win, No Fee basis.

    The class action seeks to recover compensation for losses that sorghum growers are alleged to have suffered as a consequence of planting contaminated MR43 Elite sorghum seed.

    “Any person who has been affected by Shattercane after planting MR43 Elite seed should attend this meeting to see whether they might be able to benefit from this action,” Mr Creevey said. “The farmers have been suffering from the impacts of shattercane for a long time and I am proud to be able to fight for them”.

    The class action was initiated in Queensland but has also extended to include those sorghum growers in New South Wales who have also been affected.

    Shattercane is a noxious weed which if present in a sorghum crop competes strongly with the planted sorghum and results in a reduced yield. Once present on the land, it can spread vigorously quickly infesting and overrunning the land. It is also difficult to eradicate, often meaning that the land cannot be used commercially for a considerable time.

    Please contact 07 4617 8777 to register your interest in attending the information session, at 580 Ruthven Street, Toowoomba, from 5.30pm-7.30pm, on Tuesday, February 6, 2018. Refreshments will be provided.

     

    When: Tuesday 6th of February at 5.30pm

    Where:   Our Toowoomba Offices, 580 Ruthven Street Toowoomba

    RSVP: CLICK HERE or call 07 4617 8777

     

    If you have Shattercane problems please contact Dan Creevey for a no obligation, free of charge discussion about the class action, please call on 07 4617 8777 or email

     

  • November 9, 2017 in Agricultural Law, Litigation

    CREEVEY RUSSELL LAWYERS INVITES ALL TO OUR SHATTERCANE INFORMATION EVENING NSW – 16th November 2017

    Creevey Russell Lawyers are pleased to announce that they now have funding to proceed with this action and will be hosting a Shattercane information evening at the Graze Willow Tree Inn for those farmers already involved and any farmers looking to be involved in this class action.

    THIS CLASS ACTION WILL BE CONDUCTED  ON A ‘NO COST TO YOU’ BASIS.

    If you have suffered loss or damage from Shattercane  – Come along for an informative discussion and hear about the recent progression of the case from Dan Creevey and the team.

    This is your chance to find out more about Shattercane, what the Class Action means to you and how we can help your situation.

    Graze Willow Tree Inn
    18 New England Hwy, Willow Tree NSW 2339
    16th November 2017 – 5.30pm to 7.30pm
    Refreshments provided

    RSVP’s ESSENTIAL – Click Here or call 07 4617 8777

  • October 27, 2017 in Agricultural Law, Litigation

    CREEVEY RUSSELL LAWYERS INVITES ALL TO OUR SHATTERCANE INFORMATION EVENING – 9th November 2017

    Creevey Russell Lawyers are pleased to announce that they now have funding to proceed with this action and will be hosting a Shattercane information evening in their Toowoomba office for those farmers already involved and any farmers looking to be involved in this class action.

    THIS CLASS ACTION WILL BE CONDUCTED  ON A ‘NO COST TO YOU’ BASIS.

    If you have suffered loss or damage from Shattercane  – Come along for an informative discussion and hear about the recent progression of the case from Dan Creevey and the team.

    This is your chance to find out more about Shattercane, what the Class Action means to you and how we can help your situation.

    Toowoomba Creevey Russell Office
    580 Ruthven Street
    9th November 2017 – 5.30pm to 7.30pm
    Refreshments provided

    RSVP’s ESSENTIAL – Click Here or call 07 4617 8777

  • September 14, 2017 in Agricultural Law, Commercial Law, Property Law

    Landholders Encouraged to Convert to Freehold Title

    The security of land tenure in rural Australia is often on the mind of pastoralists. With the introduction of rolling term and perpetual leases, pastoralists were given greater security over their interest in the land. There have been further developments that give leaseholders the opportunity to have their interests converted to freehold title so that rural landholders can enjoy the most secure interest available to property owners.

    Leasehold conversion is offered by the Department of Natural Resources and Mines (“DNRM”). Landowners can apply to DNRM for the conversion of their leasehold interests to freehold title. DNRM can then make an offer to the landowner often called an “Agreement to Offer a Conversion of a Lease” (“Offer”). These Offers are usually conditional which means that certain requirements must be satisfied before the conversion of land tenure will occur. Conditions will most likely include: payment of a deposit, signing of the Offer and satisfaction of any Native Title interests that may exist in relation to the land subject to the conversion.

    Upon receiving an application for conversion, DNRM will research the tenure history of the land. If the land has never been held with exclusive possession, such as a previous freehold title, Native Title will need to be addressed as a condition to the conversion being made. This is a common requirement in rural pastoral areas where exclusive possession has not previously been granted.

    Native Title interests can be addressed in a number of ways. These include: negotiating an agreement called an Indigenous Land Use Agreement (“ILUA”) with peoples that may hold an interest to the area, or by non-claimant applications to the Federal Court for a determination (decision) in regard to the native title interests in the area.

    Once the conditions of the Offer have been satisfied, DNRM can then grant the conversion of leasehold interests to a freehold title.

    Creevey Russell Lawyers have an experienced team that can assist you in the intricacies of these conversion applications. If you would like to discuss the conversion of leasehold interests, contact our Damian Bell on (07) 4617 8777.

  • August 23, 2017 in Agricultural Law, Litigation

    Class Actions Level Playing Field

    Legislative changes in Queensland which have established a regime for conducting class actions provide plaintiffs with a more level playing field to seek justice, says leading legal firm Creevey Russell Lawyers.

    The Queensland law firm has been among the first to take advantage of recent amendments to the Civil Proceedings Act 2011 with the launch of its class action against Advanta Seeds Pty Ltd, previously trading as Pacific Seeds, on behalf of growers in Queensland and NSW who have had sorghum contaminated with shattercane seed.

    Creevey Russell’s Principal Dan Creevey said in many cases a class action – a claim arising from seven or more claimants against the same defendant and handled as a rule on a ‘no win, no fee basis’ – is the only option many plaintiffs have to seek redress from the courts.

    “Class actions allows plaintiffs to pursue claims even if the quantum of the claim is not that great,” he said. “A class action lawsuit allows plaintiffs to pursue a worthy cause on principle. For example, a bank may be adding hidden fees to customers’ accounts. While the amount of the claim for the individual may not warrant the legal fees for one plaintiff, a class action allows such litigants to seek justice.”

    Mr Creevey said another advantage to a class action is a judgment or settlement against the defendant can result in a fairer distribution to the plaintiffs.

    “If many plaintiffs sue the defendant the ‘first in’ plaintiffs may be the only ones who receive damages,” he said. “Class actions provide more options for an equitable distribution of the judgment/settlement moneys.

    “Class actions also benefit the judicial system. The case is managed and determined by one judge in one court. That judge ensures that the matter progresses as quickly as possible and that it is given a certain level of priority and decisions are made in the interests of justice.”

    Further inquiries:

    Dan Creevey (07) 4617 8777

    About Creevey Russell Lawyers

    Creevey Russell Lawyers is a full service law firm which operates primarily from our Brisbane practice, with the capacity to provide superior legal services to western Queensland through our Toowoomba practiceCreevey Russell Lawyers deliver results to a variety of clients including developers, corporations, accountants, liquidators and private clientele

  • July 21, 2017 in Agricultural Law

    CSG Companies Seeking Short Cuts

    Some coal seam gas companies have been seeking short cuts around the correct process required when negotiating with landholders over access rights to their properties, says leading legal firm Creevey Russell Lawyers.

    Creevey Russell Partner Damian Bell said mining and petroleum companies in Queensland looking to enter property are required to negotiate Conduct and Compensation Agreements (CCA) with all registered owners and occupiers.

    Mr Bell said the first formal stage of the CCA process requires the resource company or ‘Authority Holder’ to provide landholders with a Notice of Intention to Negotiate (NIN).

    “This NIN stipulates a minimum negotiation period of 20 business days during which the Authority Holder is not allowed to access the land to carry out ‘advanced activities’,” he said.

    “However, we have seen a growing tenancy for the CSG companies to skip the NIN and begin talking directly to issues such as access and compensation. This is a typical tactic to try and cut short the process and attempt to lock up the deal before the landholder is properly advised on both these key points.

    “Once the NIN has been provided, and in some cases before, a landholder will be given a draft CCA. The landholder is then able to negotiate the technical terms and conditions of the agreement that will reflect the unique requirements of their property.”

    Mr Bell said if negotiations on the CCA are unsuccessful, the parties can engage in alternative dispute resolution or a mediation conference coordinated by an appropriately qualified, independent person.

    “If negotiations remain unsuccessful, the parties may seek a determination from the Land Court as to the terms of the CCA,” he said.

    “If you have been approached by an Authority Holder and want assistance in negotiating the terms of a CCA, or need assistance with the activities of an Authority Holder, contact Creevey Russell Lawyers Resource Team on 07 4617 8777.

    “With more than 40 years of combined rural and resources experience we are ideally qualified to help right across Queensland and NSW with respect to CSG negotiations.”

    About Creevey Russell Lawyers

    Creevey Russell Lawyers is a full service law firm which operates primarily from our Brisbane practice, with the capacity to provide superior legal services to western Queensland through our Toowoomba practiceCreevey Russell Lawyers deliver results to a variety of clients including developers, corporations, accountants, liquidators and private clientele