Injurious Affection Definition Essay

Matters to be considered in determining the quantum of compensationArticle 13(2) of the Federal Constitution mentions that the ‘compensation’ has to be ‘adequate’. Under Section12(1) of Land Acquisition Act 1960, the land administrator is needed to make complete enquiry into the assessment of the land obtained in order to ensure the quantum of the compensation accurately and justly for both parties. As per PemungutHasil Tanah, Daerah Barat Daya (Balik Pulau), Pulau Pinang v Kam Gin Paik[1], the obligation to enquiry lies on the Land Administrator as per stated under Section 12. The duty is breached if he intentionally disregards resources pertinent to the evaluation and the sum of compensation. The compensation evaluation is more in the character of an objective nature apart from a typically subjective approach. The text book ‘Compulsory Acquisition and Compensation’ states that the fundamental theory of the law of compensation is that the amount awarded must be able to restore the claimant in the equivalent financial situation as if his land is not compulsorily acquired by the State Authority. Even in the case DK Basu v State of West Bengal[2], the judge said that monetary or pecuniary compensation is a suitable and certainly an efficient and proper remedy in protecting the proprietors’ interest and sufferings. In the measurement of compensation, the importances have to be on the compensatory and not on penalizing aspect. The evaluation of compensation to be rewarded is made by liaising on the Principles involving on the Determination of Compensation in the First Schedule[3]. There are 3 principles for ensuring the sum of compensation to be rewarded; the market value of the land must be determined, matters to be considered in determining compensation, matters to be neglected in determining compensation and limitation on award. In further, Section2 of the First Schedule to the Land Acquisition Act 1960 lists 6 elements which are put into consideration while compensation is ensured. Those elements are; market value, increase in value of other land of the person from whom land is acquired, damage caused by severance from any other land of the person from whom the land is acquired, injurious affection, incidental expenses incurred as a result of change of residence or place of business, and accommodation works. In measuring compensation, the acquiring authority may have look upon any raise in value of land the owner keeps that is neighboring to or bordering the land obtained by state authority. This is commonly called as “betterment”. Betterment is in result the contradictory of injurious affection. There may be possibilities where the method of the acquiring authority may boost the worth of owner’s retained land. In an intense case the landlord will get no compensation because the improvement in worth of the retained land is equivalent to or bigger than the damages for the land obtained. The slightest compensation land owner can obtain is nil. In no situations can the state authority anticipate the land owner to pay them. In this case, by right the nearby lands would get increase in the value because of the development made by government which is coming of the highway. But at the same time, it is depends on the type of the adjacent land whether it will get effected because of the development made or will it benefitted from that. For instance, if it is a residential area, then the land value will get increased. But since, Great Developer’s land is on agriculture, hence, the value of the land will decrease. Thus the betterment factor effects opposite to them. Land administrator has to consider this element in assessment of the compensation. Severance happens when the harm continues when the Land Administrator is taking control of the land on the ground of separating that particular land from the another land[4]. Paragraph 2(c) First Schedule LAAmentions that adequate compensation has to be given in situation where only particular part of land being acquired. For example the damage happens because of the size or shape of left over land makes it difficult to be developed or the remaining land turn out to be unattractive for investment because of the utilization of land obtained would be place after the land acquisition. This makes the diminution in the value of the left over land occurs by the disadvantage of the obtained severed part. In Great Developer’s case, the land was for agriculture use and the division of that particular agriculture land may cause harm to the remaining land in continue providing effective production. This is because highway construction consists of hard building works which may to disturb the land fertility and structure. Injurious affection is where the acquisition injuriously disturbing the possessions of individual involved. Let’s say the land acquisition is to construct building on a residential area, whichever that reduces the value such as the obstruction of view and sound pollution also seemed to be injurious affection. It is taken into consideration to calculate the compensation on the production and profits which would decline and ultimately becomes devaluation. The similar consequence will happen as abovementioned where the construction works brings more air pollution as well as the makes the surrounding temperature get higher. The agriculture work on the land beside may get harmed because of these effects. Incidental expenses incurred as a result of change of residence or place of business because of the land acquisition, and the rational costs linked to such adjustments are claimable[5]. Those costs includes such as transport, temporary loss of business, agent fees, fees for legal agreements and commercial costs to restart the business. When an owner is compelled to shift his residence or his business as an effect of the compulsory acquisition, he is permitted for compensation for his removal expenditures. In this case, the Great Developer may have to shift his one part of agriculture setting to another place which will carry some cost for the settlement at new place. So, for this, compensation is claimable after considering the reasonableness. Accommodation works are for the building of infrastructure, drains, walls, fences of other amenities, as long the responsibility is obvious and enforceable. This is carried out to decrease the compensation for severance, injurious affection or interruption. If the state authority in this case builds any additional facilities, then the compensation amount may be reduced for the accommodation provided to Great Developer for their adjacent land. In short, the land owners must be no bad off in economical terms subsequent to the acquisition than they were prior to that. Similarly they must not be any well off.


[1] [1983] 2 MLJ 390 [2] [1997] AIR 1997 [3] Land Acquisition Act 1960 [4] Raymond and Sunitha, “Compulsory Land Acquisition in Malaysia, Compensation and Disputes’, < http://www.mahwengkwai.com/compulsory-land-acquisition-malaysia-compensation-disputes/ > accessed on 4th August 2014 [5] Anuar Alias, Peng and Noor, “Land Acquisitions Problems in China – Adopting LAA 1960 of Malaysia as An Alternative Procedure”, < http://fbe.um.edu.my/images/fab/Files/jdbevol8/vol8-06.pdf > accessed on 2nd August 2014

The Public Works Act provides for the payment of compensation for losses arising from the acquisition of land by the Crown.

Entitlement to compensation is set out in Part V of the Act. Section 60(1) provides that affected landowners are entitled to "full compensation" so that they are left in a no better or worse position, than they were before the public work commenced. This means that landowners will not be deprived of their land without fair compensation, but will not be compensated so as to make a profit from the public work.

Only persons who have an interest in the land are entitled to compensation. Owners of interests that are less than freehold (eg a lessee's interest) are also entitled to compensation if their interests are acquired. An interest in chattels or personal rights does not give a right to compensation.

Basic entitlements to compensation

Compensation is not limited to the value of the land acquired or taken. In addition to the value of the land taken, the Public Works Act entitles you to be fairly compensated for losses that may include:

  • permanent depreciation in the value of any retained land (which the Act calls "injurious affection");
  • damage to any land;
  • disturbance resulting from the acquisition.

Further information on these types of loss is set out later in this section of the booklet.

Obligation to minimise losses

The courts have ruled that there is an obligation on landowners to take all reasonable steps to ensure that their losses are kept to a minimum. It is important you keep a record of all communications and detailed records of all expenses incurred and losses sustained, as you may be able to recover these as part of your claim for compensation. You may only receive compensation for expenses and losses that occur as a direct consequence of the acquisition of your land.

You are under a duty to mitigate your loss. This means you should take steps to minimise your losses. If losses are increased as a result of your actions (or lack of them) you will not receive compensation for these increased losses.

An acquiring authority that acquires your land will try where possible to extend every opportunity for the landowner to take any action necessary to minimise potential losses including actions such as delaying taking possession.

General provisions for compensation

The assessment of compensation is governed by section 62 of the Public Works Act. Briefly the provisions are:

Market value

The value of land is based upon the amount the land would be expected to sell for if sold on the open market by a willing seller to a willing buyer on a specified date. There are some exceptions to this, which are set out in section 62(1)(b) of the Act. The test of value is the price that your land would fetch on the "open market". This is distinct from the personal value to you as the landowner, or value to an acquiring authority that wants to purchase your land. The intention of the legislation is that a person whose land is taken or acquired is placed in the position of receiving an amount that is neither more nor less than would have been obtained if the landowner had sold to a private person in an open market sale.

No increase in compensation will be paid due to the fact that land is to be taken for a public work.

Damage

If any physical damage to land caused by or in connection with a public work interferes with the landowner's rights, compensation may be payable for the damage or reinstatement.

Change in value before the specified date of acquisition

Where, before the specified date of acquisition, the value of the land required from you increases or decreases as a result of the proposed work, any effect on the land value is to be disregarded. The "specified date" can be the date on which the land was vested in the Crown or the date on which the land was first entered upon for the public work.

The intention of this principle is that you should not suffer loss from the adverse effect of the public work (if it lowers the value of your land that is required) nor profit from the beneficial effect of the public work (if it increases the value of your land).

Special suitability or adaptability

The key factor in the application of "special suitability" is the term "no market". If there is a reasonable possibility of a market, apart from the particular work of an acquiring authority, then that potential will be taken into account in valuing the land. The special suitability or adaptability of your land for any purpose is not to be taken into account if:

  • The specialist purpose could only result from the use of statutory powers; or
  • There is no market other than for the needs of an acquiring authority.

Increase in value resulting from the public work

Where the public work being undertaken increases the value of land you retain, or the value of any other land in which you have an interest, this increase in value may be deducted from the total amount of compensation that would otherwise be paid to you. This is known as "betterment". Betterment applies whether the increase in value occurs before the specified date or is likely to occur after the public work commences.

This means that in assessing your compensation any betterment will be deducted from any increase in value of your retained land caused by the public work. Increase in value because of improved access New Zealand Transport Agency as a requiring authority, sometimes exercises power under section 91 of the Government Roading Powers Act 1989 to create crossing places to give access to "Limited Access Roads". Where this increases the value of your retained land, this increase in value will normally be deducted from any compensation to be paid to you.

Acquisition of part only

Injurious affection

If there is an adverse effect on the land you retain you may be entitled to additional compensation. The compensation for depreciation in value of the retained land is called "injurious affection".

Compensation for injurious affection is provided by section 64 of the Public Works Act. Where only part of your land is taken or acquired the compensation is assessed by adopting a "before and after" approach.

This means agreeing to the value of the whole property disregarding any proposed work prior to acquisition, and comparing this with the value of the land you are left with after the taking or acquisition.

Advance payment of compensation

An advance on compensation will be paid if:

  • Only part of your land is acquired; and
  • It is not possible to adequately assess full and final compensation prior to carrying out the public work.

Compensation when no land is taken

A right to compensation under the Public Works Act may also arise in certain circumstances when no land is taken. Section 63 of the Act provides for compensation for substantial injurious affection to your land caused by the construction of the public work.

Additional compensation

Disturbance payments

In addition to being compensated for the value of land taken or acquired you may be entitled to reimbursement for "disturbance". This is payment for actual monetary loss or costs incurred of a temporary non-recurring nature. Compensation for disturbance is covered in section 66 of the Public Works Act. Any compensation under this section must be as a direct result of your land being taken or acquired by the Crown, the cost of which you could not have avoided by taking reasonable precautions. Disturbance payments are not a 'general amount' to cover possible unspecified contingencies such as 'inconvenience'.

In order to qualify for disturbance payments:

  • Disturbance must be the direct result of you being required to give up possession of your land to the Crown;
  • Costs must be reasonable and proven that they would not have occurred were it not for the Crown's purchase of your land, or your business.

Valuation, legal and other professional costs

If you obtain professional advice, you are entitled to reasonable costs (valuation, legal and other professional costs) incurred as a result of negotiating compensation for your land.

If you intend to seek professional advice, you should first discuss this with the accredited supplier who will outline the criteria for approving professional costs. This discussion will avoid any misunderstanding about what costs you are entitled to and who will pay.

If you engage a registered valuer you must instruct the valuer that the valuation is required for compensation purposes under the Public Works Act 1981. You should make the valuation report available to the accredited supplier, if requested, to facilitate discussions.

Any costs incurred for professional advice for the purposes of negotiating compensation for your land must be reasonable.

You are not able to claim the cost of your personal time spent in negotiations.

Removal costs

If your land is taken or acquired, you are entitled to the reasonable costs incurred in transporting your movable property to other land. This is subject to the other land being within the same general locality, or a greater distance if that is necessary to reach the nearest land that could have been reasonably acquired in substitution for your land.

Any claim is subject to the following:

  • If you intend to claim for removal costs you should discuss this with the accredited supplier before engaging a removal contractor;
  • You must be able to justify that the transportation costs are reasonable.

Allowances for special improvements

Where your land is taken or acquired, there is no obligation on an acquiring authority to take over removable improvements or to pay for these items. Removable improvements are not normally part of the land acquired. However, if the improvements are not readily removable and are of use to a disabled owner or a disabled member of an owner's family, and are not reflected in the value of the land, this loss can be recovered through compensation.

Loss on mortgage repayment

Where a loss occurs in having to transfer a mortgage as a direct result of land being taken or acquired, you as the borrower are entitled to compensation for the loss where you have to take a mortgage at a higher rate which will be more expensive than the existing mortgage over your land.

Business loss

If you have a business located on your land, you may claim compensation for business loss resulting from the relocation of the business. The loss may include loss of profits and goodwill. However, the loss of profits must relate to proven loss of "actual profits". Loss of "anticipated profits" is not provided for in the Public Works Act.

During the period of changeover from business premises that have been acquired for a public work, to alternative business premises, you may be forced to close down your business for the time being, resulting in your business not earning during that period. You may claim the net loss suffered, under the heading of "business loss". The main point to note is that it is the net loss of profit that is compensatable, not the loss of revenue.

If you intend to claim for "loss of profits" or goodwill you should ask your accountant to assist with preparation of your claim. It is important to support such claims with verifiable proof of loss by reference to the last three years' annual accounts of your business.

Payment for homeowners

If the land to be acquired contains your home that you live in, and the Crown takes the initiative to purchase it and requires you to give vacant possession on an agreed date or (if none) within one month of vacant possession being required by written notice, compensation up to $50,000 is payable under section 72 of the Public Works Act.

Section 72A provides the amount to be determined as $35,000 if vacant possession is given on the agreed date, plus $10,000 if a sale and purchase agreement that includes a date for vacant possession is executed within six months of the negotiation start date, plus $5,000 at the Minister’s discretion if your personal circumstances or the circumstances of the acquisition warrant such a payment.

Payment for landowners

If the land acquired does not include your home, compensation at the rate of 10 percent of the value of the land taken is payable from a minimum of $250 to a maximum of $25,000 provided vacant possession is given on the agreed date.

You cannot get compensation for your land being acquired if you are paid compensation for the loss of your home on that land.

Assistance to purchase

Part V of the Public Works Act also provides for other types of reasonable assistance in addition to compensation payable under the Act.

If you wish to seek assistance under Part V of the Act, or if you believe you are entitled to any additional compensation, you should discuss this with the accredited supplier.

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Last Updated:12 May 2017

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