Alex Gow Pty Ltd v Brisbane City Council - [2001] QLAC 51

[2001] QLAC 51

IN THE LAND APPEAL COURT OF QUEENSLAND

Re: A99-44
Appeals from decisions of the Land Court in the matter of determination of compensation payable consequent upon the resumption of land for road purposes and an Order for payment of costs - Acquisition of Land Act 1967.

BETWEEN:

ALEX GOW PTY LTD

Appellant

AND:

BRISBANE CITY COUNCIL

Respondent

J U D G M E N T

Delivered at Brisbane this Fifth day of June 2001

Background

By Notification of Resumption published in the Government Gazette on 25 July 1987 the Brisbane City Council ("the respondent") took, for road purposes, land described as Lot 3 on Plan 212543, Parish of North Brisbane, containing an area of 609 m², being part of a parcel of land owned by Alex Gow Pty Ltd ("the appellant"), situated at the south-western corner of Breakfast Creek Road and Dunlop Terrace, Newstead.
The purpose of the resumption was to effect the widening of Breakfast Creek Road. There had previously been registered (7 May 1957) a Notice of Realignment affecting a narrower strip containing 296 m².
The parent parcel contained an area of 5,881 m² before resumption, the balance area being 5,272 m². The land was zoned "Residential B" at the date of resumption, then rezoned in September 1987 to "Particular Development (Undertakers Establishment)".
Development of the land as a funeral parlour had taken place in 1963 with the consent of the respondent. As at the date of resumption, the complex comprised the main funeral parlour structure containing a floor area of 453 m², two ancillary workshop buildings, paved driveways and car-parking areas with a grassed, retained and landscaped frontage to Breakfast Creek Road.

The land taken accommodated the forward sloping street frontage landscaped area, part of a paved driveway and assemblage area adjacent to the eastern elevation of the principal funeral parlour structure, together with some advertising signage.
Subsequent to the resumption, the street frontage alignment was retained by a high concrete retaining wall.
The works associated with the resumption were carried out between 24 August 1987 and 31 May 1988.
A claim for compensation was first served on the respondent in September 1995 then filed in the Land Court in September 1999.

Land	$210,000.00
Improvements	$62,782.00
Severance (loss of profit)	$247,731.00
Injurious affection (professional fees)	$54,457.70
10.	Total The amount of the valuation finally put in evidence by the	$574,970.70 respondent was in

The amount finally claimed by the appellant in the Land Court, excluding interest, is summarised as follows:

the amount of $90,608 including professional fees.

On 5 October 2000 the Land Court awarded compensation in the amount of

$133,137 together with interest as calculated.

The award was particularised as follows:
· Loss of land $12,000
· Loss of improvements:

Re-erection of illuminated sign $1,335

Loss of 50 ft sign $1,680

Loss of 4 golden cypress pines $3,300

Cost of brick fence on top of retaining wall $47,409

Architect's fees for front fence $2,600

Engineering fees for front fence $800

Brisbane…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alex Gow Pty Ltd v Brisbane City Council

Details

AGLC: Alex Gow Pty Ltd v Brisbane City Council [2001] QLAC 51
Case: [2001] QLAC 51
Decision Date: 5 June 2001

CaseChat Overview and Summary

In the matter of Alex Gow Pty Ltd v Brisbane City Council, the parties disputed the compensation payable to the appellant for land resumed for road purposes by the respondent. The appellant, Alex Gow Pty Ltd, was the owner of a funeral parlour that was partially resumed by the respondent, Brisbane City Council, to widen Breakfast Creek Road. The appellant claimed compensation for the loss of land, improvements, severance, and injurious affection. The Land Court awarded compensation in the amount of $133,137 together with interest as calculated. The appellant appealed to the Land Appeal Court on the grounds of the award for loss of land, the order for payment of interest, and the order for payment of 50% of the respondent's costs. The Land Appeal Court found that the award for loss of land was inadequate and should be set aside. It substituted an allowance of $65,000 for the loss of land. The Court also found that interest should be awarded at the appropriate rate from the dates identified by the learned Member until the date of final payment. Lastly, the Court concluded that the learned Member's decision in relation to costs proceeded on a wrong principle, and there should be no order as to costs of the hearing and determination in the Land Court. The appeals were allowed, and the determination and orders made by the Land Court were set aside. Compensation was determined in the sum of $186,137, and the respondent was ordered to pay the appellant that amount.

Orders