The State Government has announced that, if re-elected in 2017, a road tunnel will be built between the intersection of Stock Road and Winterfold Road in Hilton and the intersection of High Street and Stirling Highway in East Fremantle.
The proposed tunnel, known as “Roe 9”, would be built under land that is predominantly residential. This would be the next stage following the highly controversial Roe 8 section over the Beeliar Wetlands.
A person whose land is situated above the proposed tunnel route would be asking themselves two questions. First, is the government actually allowed to build infrastructure underneath my land? Second, if they are, am I entitled to claim compensation?
The answer to the first question is that the government can build infrastructure underneath privately-owned land, subject to the necessary statutory procedure being followed. The answer to the second question is that a landowner will only be entitled to claim compensation in connection with underground works in limited circumstances.
The common law says that unless otherwise specified, a landowner, in addition to owning the relevant land and fixtures, owns all airspace directly above their land and all of the earth directly beneath their land. This is known as the “cujus est solum ejus est usque ad coelom et ad inferos” maxim. It follows that a person who is registered as the legal owner of a residential lot will ordinarily also be the legal owner of the earth directly below that lot. An exception, for example, would be if the title contains an express limitation stating that ownership only applies to a specified depth.
As a consequence, if the government wishes to build a tunnel under privately-owned land, the government must first acquire sufficient title to use the necessary portion of underground earth. This could be achieved by an agreement with the landowner or alternatively by compulsory acquisition of the relevant interest in land.
Part 9 of the Land Administration Act 1997 (WA) (LA Act) sets out a procedure whereby the government may compulsorily acquire land, or some interest in land, from a private owner. In the case of Roe 9, if the government cannot procure agreement from all relevant landowners to build a tunnel under their land, then it will need to utilise the procedure under Part 9 of the LA Act to compulsorily acquire an interest in the relevant underground portions of land.
A dispossessed landowner is ordinarily entitled to claim compensation from the government under Part 10 of the LA Act following compulsory acquisition. These provisions would apply, for example, in circumstances where land is wholly acquired by the government and the former occupier has lost their house and land as a consequence.
The compensation entitlement however may be more limited in the case of underground works, such as the proposed tunnel for Roe 9, where there is no acquisition of land at the surface level. Section 162(1) of the LA Act confirms that for the purpose of constructing any underground works, an interest in land under the surface may be acquired by the government without acquiring any legal interest in the surface. Section 162(2) of the LA Act then provides that in such a case, no compensation is payable by the government unless the surface of the overlying soil is disturbed, the support to the surface is destroyed or injuriously affected or a mine, underground working, spring, reservoir, dam or well in or adjacent to land is injuriously affected.
In basic terms, if the government builds the Roe 9 tunnel underneath privately-owned land, then landowners who seek compensation would have to demonstrate some disturbance or loss of support to their land at the surface level.
If the government proceeds with Roe 9 as proposed, the impacts of the underground construction works will be of major concern to landowners situated above the proposed tunnel route. The potential for surface impacts will warrant close consideration from landowners, as such impacts could potentially give rise to compensation claims. Lavan specialises in land compensation law, so if you have any questions in relation to the subject matter of this article, please do not hesitate to contact us.
Craig Wallace will be presenting a seminar on the listing of the Banksia Woodland and the impact it will have on the development industry moving forward on 29 March 2017. If you are interested in attending please click here.