Anderson v Queensland Electricity Commission
[1998] QLC 103
•18 September 1998
|
BRISBANE
18 September 1998
Re: Claim for compensation - Acquisition of Land Act 1967
(A98-06)
Ronald James Anderson
v.
Queensland Electricity Commission
(now Queensland Electricity Transmission Corporation trading as Powerlink Queensland)
DECISION
Introduction
By proclamation published in the Queensland Government Gazette dated 2 December 1994, the Queensland Electricity Commission (now the Queensland Electricity Transmission Corporation trading as Powerlink Queensland (“Powerlink”)) resumed an easement of about 1.933 hectares, being part of Lot 6 on RP 140198 in the Parish of Murphy, County of Cavendish (the “subject property”). It was taken for “Electrical Works purposes”. The easement was one of a series to be used for the construction of a 275 KV power line. The conductors were to be supported on lattice steel structures with an average height of 40 to 45 metres and spacing between structures of about 400 metres.
At the date of resumption, the registered proprietors of the subject property were Darryl John Anderson and Pauline Marie Anderson (joint tenants) as tenants in common in equal shares with Ronald James Anderson.
On 28 February 1995, Powerlink finalised compensation with Darryl and Pauline Anderson for their half interest in the resumption of the easement. They were paid $899.00 in March 1995.
On 2 March 1998, more than three years after the easement was resumed, the Crown Solicitor on behalf of Powerlink referred to the Land Court the matter of how much compensation should be paid to Ronald James Anderson (“Mr Anderson”). The referral was made under section 24 of the Acquisition of Land Act 1967 which provides that either the constructing authority (in this case Powerlink) or the claimant (in this case Mr Anderson) “may refer to the Land Court for hearing and determination the matter of the amount of the compensation”.
The case has proceeded to hearing in an unusual and rather unsatisfactory manner. Mr Anderson has played a minimal role and was not present or represented at the hearing. To explain the difficulties facing the Court it is appropriate to set out the chronology of events leading to the hearing.
Court notices dated 23 April 1998 were sent to Mr Anderson and to the Crown Solicitor informing them that the matter would be brought before the Court on 13 May 1998 for mention. The notice stated that persons attending the callover should be informed as to whether all prospects of settlement or compromise had been exhausted, should give a realistic time estimate, and should be informed as to the approximate number of witnesses likely to be called and their profession. An alternative procedure was offered. Either or both of the parties could advise the named Deputy Registrar in writing before 11 May 1998 in relation to these points.
The matter was mentioned, as scheduled, at a callover before the President of the Land Court. Powerlink was represented. Mr Anderson was neither present nor represented. He did not provide the Deputy Registrar with a written response to the Court notice. Powerlink’s representative had not spoken to Mr Anderson or his representatives. She was instructed that there had been discussions but there would not be room for further negotiations. The President stated that, as the claimant lives in Mackay, he would endeavour to have the matter set down for hearing in Mackay.
By letter dated 22 June 1998 to the Registrar of the Land Court, the Crown Solicitor expressed the view that, given the location of the subject land, it would be more appropriate to have the matter heard in Brisbane. He also applied, under section 25 of the Acquisition of Land Act, for the Court to order Mr Anderson to enter an appearance on an appropriate date.
Section 25(1) provides that where the constructing authority refers a matter such as this to the Court so that the amount of compensation may be determined, and the constructing authority applies to the Court for an order under section 25, the Court “shall order that the claimant may enter an appearance on the reference on or before the date fixed by the order”. Section 25 goes on to provide that a claimant may appear on the reference “by filing in the office of the registrar of the Land Court, on or before the date fixed by the order, a claim for compensation in accordance with the requirements of section 19”.
On 30 June 1998 the Registrar of the Court issued an order to Mr Anderson to enter an appearance by filing on or before 27 July 1998 a claim for compensation in accordance with section 19 of the Act. That section provides that a claim for compensation shall:
(a) be in writing;
(b) be served upon the constructing authority;
(c) state the full name and address of the claimant;
(d) be signed by the claimant; and
(e) contain or be accompanied by:
(i)a description of the land taken and a statement of the area of the land;
(ii)a statement of the nature and particulars of the claimant’s estate or interest in the land taken;
(iii)a statement (which, in the case of the owner, shall be verified by statutory declaration) as to whether or not the claimant’s estate or interest in the land taken is subject to any trust, obligation, mortgage, lease, agreement to lease, charge, rate, contract, claim or other estate or interest whatsoever and, if so, the nature and particulars of those of the aforesaid to which the estate or interest is subject;
(iv)an itemised statement of the claim, showing the nature and particulars of each item and the amount claimed in respect of each item;
(v)the total amount of compensation claimed.
Mr Anderson was advised that a claimant who “fails to enter an appearance on a reference within the specified time shall not be entitled to be heard by the Court save by leave of the Court which may be granted upon such terms as it deems just, including terms with respect to the payment of costs”.
The order to enter an appearance was sent to Mr Anderson with a letter dated 30 June 1998 from the Registrar informing him that the matter would be set down for hearing at the first available sittings of the Court in Brisbane, due notice of which would be given to him.
On 5 August 1998 the Registrar wrote to Mr Anderson noting that there was no record that he had entered an appearance in accordance with the Court’s Order of 30 June 1998 by “filing a claim for compensation in this office” by 27 July 1998. Again, the Registrar informed him that determination of the matter of the compensation payable would be listed for hearing at the first available sittings of the Court in Brisbane, due notice of which would be given to him. A copy of sub-section 25(3) and (4) of the Act were enclosed for his information. They provide that:(a)a claimant who fails to enter an appearance “shall not be entitled to appear or to be heard by the Land Court upon the hearing of the reference” except by leave of the Court (which leave may be granted on terms that it deems just, including terms with respect to the payment of costs); and
(b)the Land Court may hear and determine the matter of the amount of compensation in the absence of the claimant where either:
(i) the claimant fails to enter an appearance on or before the date fixed by order of the Court; or
(ii)the claimant has entered an appearance or has been granted leave to appear but fails to appear at the hearing.
It seems that, although his claim for compensation was not filed in the Registry of the Court, a claim dated 15 July 1998 was made and was transmitted by facsimile to Powerlink or its representative on that date. The claim meets the requirements of section 19 of the Act.
A Court notice dated 20 August 1998 was sent to Mr Anderson notifying that the matter would be brought before the Court “for hearing or otherwise, as may be ordered in that behalf” on 10 September 1998. When the Court notice was issued, a copy of the claim for compensation had not been lodged in the Registry. A copy of the claim was sent to the Registrar by the Crown Solicitor on 24 August 1998.
In a letter to the Office of the Land Court dated 8 September 1998 and received by facsimile on that date Mr Anderson referred to the letters from the Registrar dated 30 June, 5 August and 20 August 1998. He stated that, on 15 July 1998, he complied with the order contained in the notice dated 30 June 1998. In response to the notice of hearing dated 20 August 1998 he stated:“I am unable to be in Brisbane on this date and will not be in Brisbane until November at the earliest”.
It is clear that Mr Anderson did not enter an appearance by filing in the office of the registrar of the Land Court a claim for compensation, and that he did not apply for nor was granted leave to appear. He failed to appear at the hearing. His letter dated 8 September was not treated as an application for an adjournment.
In accordance with section 25(4) of the Act, I proceeded to hear the matter in the absence of Mr Anderson. I will now determine the matter of the amount of compensation.
Assessing the amount of compensation payable - the statutory criteria
The Acquisition of Land Act 1967 provides:“20.(1). In assessing the compensation to be paid, regard shall in every case be had not only to the value of land taken but also to the damage (if any) caused by either or both of the following, namely-
(a)the severing of the land taken from other land of the claimant;
(b)the exercise of any statutory powers by the constructing authority otherwise injuriously affecting such other land.
(2) Compensation shall be assessed according to the value of the estate or interest of the claimant in the land taken on the date when it was taken.
(3) In assessing the compensation to be paid, there shall be taken into consideration, by way of set-off or abatement, any enhancement of the value of the interest of the claimant in any land adjoining the land taken or severed therefrom by the carrying out of the works or purpose for which the land is taken.
(4) But in no case shall subsection (3) operate so as to require any payment to be made by the claimant in consideration of such enhancement of value.”
The claim for compensation
Mr Anderson has claimed a total of $70,000.00 in compensation comprising:
(a)$20,000.00 for the loss of value of land due to the deleterious effects of high tension power lines on land values because of the health risks, whether perceived or otherwise, associated with Electro Magnetic Radiation; and
(b)$50,000.00 for pain and suffering caused to him by “the complete severing of relationships between myself and my brother, his wife and in particular his three children with whom I had a particularly close relationship as they were growing up. This severing of relationships resulted from arguments over the amount of money the land was to be sold for after the decision was made to construct power lines on and across the land”.
Loss of value of land
The subject property is a regular shaped allotment with an area of 35.11 hectares. It is a “Rural General Farming” zoned rural residential allotment which is improved with a lowset hardiplank dwelling, sheds and yards. It is approximately 4.5 kilometres north of the town of Murphy’s Creek and approximately 25 kilometres north-east of Toowoomba. Surrounding development is a mixture of rural homesites and grazing country.
The subject property has a frontage to the northern side of Penderests Road, a formed gravel road which provides fair access to the subject property. Access to Murphy’s Creek from Toowoomba or Brisbane is via bitumen sealed roads. From Murphy’s Creek, access to Penderests Road is via the bitumen sealed Fifteen Mile Road to Penderests Road or via formed gravel Penfolds Road.
Electricity and telephone services are available to the subject property. Limited town services are available in Murphy’s Creek including a State Primary School, Community Hall and Convenience Store. Major services are available in Toowoomba.
The subject property falls from the dwelling to some gullies and two creek systems before rising to the area where the power line will be located. The area around the dwelling and other parts of the property are selectively cleared of timber.
The subject easement is approximately 60 metres wide. It runs parallel with and adjoins the rear boundary of the subject property. The area is undulating but mainly rising away from a creek system within the property. The ridges and lower slopes are currently heavily timbered with native forest including spotted gum, ironbark, wattle and gum topped box. The southernmost boundary of the easement is approximately 1,000 metres from the Penderests Road boundary and approximately 800 metres from the main dwelling.
At the date of the hearing, the power line had not been constructed. The Statement of Reasons accompanying the Notice of Intention to Resume the easement referred to planning forecasts which indicated that the link would be required between 1999 and 2000. Mr Cross stated that, with the deregulation of the power industry since that time, Powerlink now estimates that construction is more likely to be in 2004 or 2005. Mr Timothy Rabbitt, a registered valuer who prepared a valuation report for Powerlink, considered that, because the site is undulating and well timbered, the power line would be sheltered from the main living area and would be difficult to see clearly. It would have little or no impact on the added value of the structural improvements. He also considered that the clearing of the easement for the construction of the power line would have nominal, if any, adverse effects on the grazing of cattle or horses on the subject property.
Mr Anderson has not expressly claimed compensation for the value of the interest in land taken but seeks compensation for the loss of value of land (presumably all of Lot 6 on RP 140198) due to the deleterious effects of high tension power lines. It is not apparent how he calculated that $20,000.00 was the appropriate sum, and he offered no evidence in support of it.
Powerlink contended that $2,000.00 was the appropriate amount of compensation for the acquisition of the easement.
The only evidence of land value was provided by Mr Rabbitt, who is an associate director of the firm Taylor Byrne and who has had relevant experience in valuations and negotiations for the acquisition of power line easements. He valued the land by reference to five sales of land in the district of the subject land. The main features of the sales were as follows:
Penfolds Road, Murphy’s Creek (Lot 142 RP 846813, Parish of Murphy): The land is a vacant, undulating site immediately to the south of the subject property. It falls to Murphy’s Creek and has an area of 63.3 hectares. Easy bitumen access is available to it from town. The site is larger and more elevated than the subject land. Although it has similar access to that of the subject land, it is superior both as a homesite and in terms of its potential. Mr Rabbitt described the sale land as superior overall. It was sold in February 1994 for $123,550.00, an average of approximately $1,951.00 per hectare.
Fifteen Mile Road, Murphy’s Creek (Lot 2 RP 155715, Parish of Murphy): This is an irregularly shaped site with an area of 21.87 hectares and a frontage to Murphy’s Creek. The site is located south-east of the subject land and has better location and access than the subject. Mr Rabbitt described it as overall a superior but smaller homesite than the subject land, being superior in terms of country type and potential. It was sold in July 1993 for $125,000.00. When allowance is made for improvements (a lowset timber dwelling, sheds and yards valued at $65,000.00) the sale shows an average value of approximately $2,743.00 per hectare.
Costello Road, Murphy’s Creek (Lots 215, 216 CH 31711, Parish of Taylor): The land is a vacant, undulating rural allotment with an area of 80.73 hectares and creek influences. It adjoins an existing rural residential subdivision. It is much larger than, and is in a superior location to, the subject property. Mr Rabbitt also considered it to be a superior property to the subject land in terms of access and potential. It was sold in March 1992 for $130,000.00, an average of approximately $1,610.00 per hectare.
Off Fifteen Mile Road, Murphy’s Creek (Lot 72 CSH 788, Parish of Murphy): The land is a vacant, undulating timbered rural homesite with an area of 78.26 hectares and creek influence. It is more than twice the size of the subject land, but Mr Rabbitt considered that it was overall inferior to the subject land in terms of access and country type. It was sold in April 1993 for $79,950.00 an average of approximately $1,021.00 per hectare.
Off Fifteen Mile Road, Murphy’s Creek (Lot 98 CA 311173, Parish of Murphy): The land is a vacant, undulating to steep, timbered rural homesite with rough access. It has an area of 64.88 hectares and so is much larger than the subject land. Mr Rabbitt described it as far inferior to the subject in terms of access, location (north-east of the subject) and country type. The land was sold in January 1993 for $45,000.00, an average of approximately $693.00 per hectare.
As far as I am aware, none of the sale blocks was affected by the presence of a power line easement. The easement across the subject land runs parallel with the northern boundary of the sale 1 land. That sale took place months before the Notice of Intention to Resume or the resumption. There is no suggestion that the sale price was influenced by the pending acquisition of an easement on neighbouring land.
Mr Rabbitt conceded that none of the sale blocks was directly comparable with the subject land, which does not have a creek frontage like some of the others. His opinion about the value of the subject land was derived from a direct comparison between the subject land and the five sale blocks. Having regard to the sales evidence, he assessed the market value of the subject property as follows:
Land 35.11 hectares $ 60,000.00
Plus added value of structural improvements
Dwelling $60,000.00
Carport $ 3,000.00
Workshop/Garage $ 7,500.00
Hay Shed $ 5,000.00
Yards $ 2,000.00 $ 77,500.00
Total value of land and improvements $137,500.00
Adopt $140,000.00
The land component in these calculations has an average value of approximately $1,709.00 per hectare.
The question then is what compensation is payable under section 20 for the value of the land taken for the easement and the damage (if any) caused by the exercise of any statutory powers by Powerlink on the easement which otherwise injuriously affects the subject property.
Mr Anderson’s claim for compensation sought $20,000.00 for the loss of value of land due to the deleterious effects of high tension power lines on land values because of the health risks, whether perceived or otherwise, associated with Electro Magnetic Radiation.
Powerlink provided the Court with the following documents concerning electric and magnetic fields: (“EMF”) - EMF in the Workplace - Questions and Answers, September 1996, published by the National Institute for Occupational Health and Safety, National Institute of Environmental Health Sciences and the US Department of Energy. (Exhibit 8); Your Guide to Understanding EMF, 1993, published by Culver Company, USA (Exhibit 9); and EMF Update, February 1998, published by the Electricity Supply Association of Australia Limited (Exhibit 10).
The purpose of providing those documents was to show to the Court that there is no established scientific evidence that there are health risks from EMF for people who reside near power lines.
There is no need to review the documents in detail. It is sufficient to note that research to date is inconclusive, in that there is no clear indication of the nature and extent of effects on health (if any) of exposure to EMF. It is apparent, however, that electric fields are shielded or weakened by materials that conduct electricity (including trees). Magnetic fields pass through most materials and are therefore more difficult to shield. Both electric and magnetic fields decrease as the distance from the source increases.
The relevant issue in these proceedings is not whether an EMF surrounding the proposed power line would have any deleterious effects on the health of people in its vicinity. The issue, as Mr Dwyer acknowledged, is whether the presence of such a power line would affect the price which a person would pay to purchase the land.
In assessing the compensation payable, Mr Rabbitt had regard to the effect of the easement and the proposed transmission line on the balance of the property. He considered that, given the topography and natural vegetation of the site, and that the subject property is a rural residential homesite and the easement is well removed from the dwelling, a diminution in value factor of 40 per cent within the easement area is sufficient to assess the compensation payable. Allowance was also made for the tower sites and access tracks along the easement.
The assessment of the amount of compensation payable was made as follows:
Easement 1.933 ha @ $1,750 per hectare @ 40% $1,353
Tower site allowance for 1 tower $ 200
Access tracks $ 300
$1,853
Adopt $2,000
In Mr Rabbitt’s expert opinion, “there is some effect on the value of property by having a powerline easement across that property”. The effect of the power line and any associated other effects, such as EMF, would be “minimal” given the location of the power line particularly in relation to the house and the balance of the property. He considered that his assessment of compensation is sufficient to cover that effect.
Powerlink also relied on the sale of the subject property in 1997 for $155,000.00 to demonstrate that arm’s-length purchasers, who were aware of the easement, were willing to pay more for the property with the easement than it was apparently worth at the date on which the easement was taken. Mr Rabbitt spoke to the purchasers and his investigations showed that it was an arm’s length sale. Although there was no evidence about any trends in the market between the date when the easement was resumed and the date when the land was sold, the presence of the easement does not seem to have been the blight which Mr Anderson suggested in his claim for compensation.
Powerlink submitted that, in the absence of any countervailing valuation evidence I should adopt the valuation of Mr Rabbitt. Although it would have been desirable to have heard evidence from or on behalf of Mr Anderson and for him to have taken the opportunity to test or attempt to rebut the evidence presented on behalf of Powerlink, I do not have the benefit of a contradictor’s evidence or submissions.. This is not a case where the Court is left with inadequate evidence and, in the absence of contradictory evidence, feels obliged to adopt what has been put by one party. Rather, the evidence is cogent and was given by a well qualified expert witness.
Conclusion: I am satisfied that the evidence supports a finding that compensation in the amount of $2,000.00 is payable for the resumption of the easement. Because, at the date of resumption, Mr Anderson was a tenant in common with others and had a half share in the ownership of the subject property he is entitled to compensation in the sum of $1,000.00.
Pain and suffering
Mr Anderson also sought compensation for pain and suffering caused to him by what he described as “the complete severing” of important family relationships which resulted from arguments over the price for which the land should be sold after the decision was made to construct power lines on and across the land.
Powerlink submitted, correctly, that section 20 of the Acquisition of Land Act 1967 makes no provision for compensation for pain and suffering of the type asserted by Mr Anderson.
The closest concept in land valuation terms is the concept of solatium which is sometimes awarded for the compulsory acquisition of land. One valuation textbook notes that the ordinary meaning of “solatium” is a “sum of money or other compensation given to a person to make up for loss or inconvenience” and, more specifically in law “a sum of money paid over and above the actual damages as solace for injured feelings” (A Hyam, The Law Affecting Valuation of Land in Australia, 1995, 2nd edn, Law Book Company, 264). It describes “an award of some amount to cover inconvenience and in a proper case distress caused by compulsory taking”(March v City of Frankston (No 1) [1969] VR 350 at 356 per Barber J).
Another textbook describes the award of a solatium as “a recognition that the amount of compensation may not have covered every foreseeable loss which the dispossessed owner suffers at being evicted from his or her land. It is a kind of sweetener, reflecting some kind of apology” (D Brown, Land Acquisition, 1996, 4th edn, Butterworths, 142-3).
Unless there is specific provision in the relevant statute, payment of an additional amount for “solatium” cannot be allowed as part of compensation following the compulsory acquisition of land (A Hyam. op cit, at 264 citing Re Wilson and State Electricity Commission of Victoria [1921] VLR 459, Geita Sebea v Territory Papua (1941) 67 CLR 544. See also D Brown, Land Acquisition, op cit, 144). In those instances where statutes provide specifically for the award of solatium for the necessity to relocate one’s residence, the provision has been described as referring to “subjective and imponderable factors such as nuisance, annoyance, inconvenience and distress which might be caused to an owner” who, as a consequence of the compulsory acquisition of his place of residence, has to relocate his residence (Robertsonv Commissioner for Main Roads (1987) 63 LGRA 420 at 426 per Perrignon J. See also Roberts v Commissioner of Main Roads (1987) 63 LGRA 428 at 432 per Cripps J).
The person claiming solatium must provide evidence to support the award.In RK Morgan Holdings Pty Ltd v Melbourne & Metropolitan Board of Works, Gobbo J remarked that where a claim is made for solatium “founded on intangible or non-pecuniary disadvantages, it will be difficult, though not impossible, to establish these without calling evidence, especially evidence from the party itself” ((1992) 77 LGRA 102 at 115).
One textbook summarises the law on solatium, so far as is relevant to this case, by noting that “the award of solatium is dependant upon the existence of express statutory provision” and stating:“If there is no provision for the award of solatium, then it follows that the claimant cannot claim for any distress caused by the resumption: Kerry v State Transport Authority (1985) 38 SASR 502; Bronzel v State Planning Authority (1979) 21 SASR 513 at 525. Even if there is provision for the award of a solatium, it is unlikely to extend to such factors as emotional stress arising from the resumption.” (D Brown, Land Acquisition, op cit, 145)
Conclusion: There is nothing in section 20 of the Acquisition of Land Act 1967 which provides for compensation for pain and suffering of the type asserted by Mr Anderson, or for the award of solatium. I am not aware of any authorities that state that an award of solatium can be made in Queensland. There was no evidence to support that part of the claim. The claim for compensation for pain and suffering fails.
Interest
Section 28 of the Acquisition of Land Act 1967 empowers the Land Court to order that interest be paid on the amount of compensation determined by it. The interest may be awarded for part or all of the period from and including the date on which the land is taken and ending on and including the day immediately preceding the date on which compensation is paid. The rate of interest is fixed by the Court and is a rate which the Court deems reasonable.
Powerlink expressly made no submissions in relation to interest other than to note that it is a matter for the Court in the exercise of its discretionary power.
Documents were provided to the Court which show that Powerlink made a number of written offers to pay Mr Anderson interest at the rate of 8.5 per cent on the amount of compensation which they offered him until the date of settlement. The most recent offer was dated 25 August 1998. On that occasion, Mr Anderson was asked to respond to the offer by 4 September 1998.
Section 28 of the Act permits the Court to make an award of interest for part of the relevant period from the date of resumption. In light of the history of these proceedings, and especially the written offers made by Powerlink to Mr Anderson, I will adopt the course of awarding interest at 8.5 per cent per annum from the date of resumption until 4 September 1998.
On my calculations, using the method which I understand was adopted by Powerlink, the interest on $1,000.00 for that period is approximately $320.00.
Costs
Powerlink sought an order for costs in these proceedings. The principal application was for an order that Mr Anderson pay Powerlink’s costs of and incidental to the proceedings. Mr Dwyer stated that the costs incurred were $1,500.00 for the valuation report and the valuer’s attendance at Court, and in excess of $2,000.00 for professional fees associated with the Crown Solicitor. In the alternative, Mr Dwyer submitted that, if I were inclined to fix an amount of costs, the amount of $1,000.00 might be appropriate, although that amount “falls very far short of having to meet the actual costs that have been faced” by Powerlink in this matter.
Power of Land Court to make costs order: The power of the Land Court to make an order in relation to costs is found in section 41 (9) of the Land Act 1962 (preserved by section 521 of the Land Act 1994). The subsection provides:“Powers of Court
...
(9) The Court may make such order as it thinks fit as to the costs of or incidental to any matter that it has jurisdiction to hear and determine including, without limiting the generality of this subsection, the costs of an adjournment or application made in a pending matter, allowances to witnesses attending for the purpose of giving evidence at the hearing and the costs of any survey of boundaries.”
Section 27 of the Acquisition of Land Act 1967 provides:
“(1) Subject to this section, the costs of and incidental to the hearing and determination of the Land Court of a claim for compensation under this Acquisition of Land Act shall be in the discretion of that court.
(2) If the amount of compensation as determined is the amount finally claimed by the claimant in the proceedings or is nearer to that amount than to the amount of the valuation finally put in evidence by the constructing authority, costs (if any) shall be awarded to the claimant, otherwise costs (if any) shall be awarded to the constructing authority.
(3) Subsection (2) does not apply to any appeal in respect of the decision of the Land Court or to costs awarded pursuant to section 24(3) or section 25(3).”
Section 27(3) is not relevant to these proceedings.
In Yalgan Investments Pty Ltd v Council of the Shire of Albert (unreported decision dated 11 December 1997) the Land Appeal Court reviewed the leading decisions on the scope and exercise of the Land Court’s discretionary power. The Court set out in summary form the following propositions for which the judgments and section 27 of the Acquisition of Land Act 1967 stand.
(a) The power to award costs of proceedings is entirely the creation of statute.
(b)The power of the Land Court to make an order for costs in relation to a claim for compensation is conferred by section 41(9) of the Land Act 1962 and section 27 of the Acquisition of Land Act 1967.
(c)Subject to section 27 of the Acquisition of Land Act 1967, the discretionary power of the Land Court is full or complete.
(d) The only statutory constraints on the exercise of the discretion are that:
(i)if the amount of compensation as determined is the amount finally claimed by the claimant in the proceedings or is nearer to that amount than to the amount of the valuation finally put in evidence by the constructing authority, costs (if any) shall be awarded to the claimant; and
(ii)otherwise, costs (if any) shall be awarded to the constructing authority.
(e)Compulsory acquisition cases differ from ordinary claims in the significant respect that the claimant, unlike the ordinary plaintiff, had no choice whether to make a claim or not. The mere acquisition by compulsory process gave the claimant a claim to compensation which he or she could hardly be expected to renounce.
(f)The discretion whether to award costs may not be exercised in an arbitrary manner but must be exercised on principled grounds or judicially, that is, for reasons that can be considered and justified by reference to relevant considerations.
(g)In some cases the matter may be so obvious as not to require explanation in the form of stated reasons.
(h)In general, a party who is wholly successful in litigation can expect an order for costs in his favour. Where compensation is awarded to one who had already been given, by statute, the right to receive it, it is just to say that the claimant ought, in the absence of special circumstances, to receive his reasonable costs of obtaining the compensation that is, ex hypothesi, his due. But costs are discretionary and no hard and fast rules will ever be allowed to occupy part of an area controlled by a discretion, however predictable the result of its exercise may be in certain sorts of cases. In some cases, the Land Court may consider that there are sufficient reasons for departing from the general rule.
Although the exercise of the power does not exclude resort to the “settled practice” of a court where such a practice has evolved, a purported exercise of discretion which fails because the mind is closed to relevant considerations through a rigid adherence to preconceptions involves an error of law that is open to correction on appeal.
(j)Section 27(2) of the Acquisition of Land Act 1967 should not be regarded as a legislative suggestion that, where the claim is substantially more than the amount awarded, and the amount put in evidence by the constructing authority is not substantially less than the amount awarded, the Court should not merely refrain from awarding any costs to the claimant but should award costs to the authority.
(k)Where the Land Court is considering whether it should award costs to a constructing authority, it could be wrong to have regard merely to the amounts of the claim and of the award and of the value put in evidence by the authority. Usually it would be more relevant to enquire whether the conduct of the claimant (such as, for example, making an exorbitant claim) has been such as to force the authority, unreasonably and unnecessarily, into litigation or whether the claimant has pursued a vexatious, dishonest or grossly exaggerated claim or presented his case in such a way as to impose unnecessary burdens on the constructing authority or the Court.
Submissions: Powerlink submitted that it should be awarded its costs of and incidental to the proceedings because Mr Anderson had acted unreasonably and, as a consequence, Powerlink had been forced to come to Court for the determination of compensation payable.
Oral and documentary evidence was given to support that submission. Mr Kemsley Cross, the State Property Manager for Powerlink, said that negotiations and discussions had taken place since the gazettal of the resumption in December 1994. The property officer involved with the project, Mr Young, “had repeated dealings with Mr Ronald Anderson to attempt to settle the matter” but they all failed. Mr Cross took over the matter after Mr Anderson moved to Mackay and attempted to contact him in August 1987. Mr Cross described their meeting on 6 August as a “confrontation” in which nothing was resolved. Mr Cross visited Mr Anderson on 11 May 1998 but “another confrontation evolved” with no settlement resulting.
Powerlink provided the Court with copies of documents including:
a Notice of Intention to Resume sent to Mr Anderson in July 1994 together with a statement of reasons;
correspondence with DJ and PM Anderson and their claim for compensation in the sum of $899.00 dated 28 February 1995 ;
a letter dated 18 November 1996 to Mr Anderson from the Chief Executive of Powerlink referring to a telephone conversation between Mr Anderson and Mr Young and confirming Powerlink’s compensation offer of $874 plus interest calculated at 8.5% for his half share of the total amount of compensation and any reasonable legal and or valuation fees;
a letter dated 11 November 1997 from Mr Cross to Mr Anderson;
-referring to the previous letter and to Mr Cross’s visit to Mr Anderson’s flat on 6 August 1997 to attempt to discuss his share of the compensation;
-noting that, in an endeavour to settle the matter, Mr Cross had obtained an independent valuation from Mr Rabbitt which would give Mr Anderson $1,000.00 plus interest at 8.5% from the date of settlement (which at 2 December 1997 would have amounted to $1,255.00);
-expressing anxiety to settle the matter as quickly as possible and suggesting that Mr Anderson obtain an independent valuation for which Powerlink would pay, together with any legal advice which he may require in order to consider settling the matter;
-advising that, “as the matter has been ongoing for some three years now and you have not responded to any of our attempts to discuss the matter, should you not respond to the offer of compensation by 31 January, 1998 we will have no alternative but to refer the matter to the Land Court for a determination of the amount of compensation payable”;
a letter from dated 4 March 1998 to Mr Anderson from the Crown Solicitor advising that:
-because Mr Anderson had not responded to the letters of 18 November 1996 and 11 November 1997, Powerlink had instructed him to refer the matter to the Land Court for hearing and determination;
-although the matter had been referred to the Court, Powerlink was willing to negotiate a settlement and was offering $1,000.00 plus interest at 8.5% from the date of resumption until settlement;
a letter dated 25 August 1998 to Mr Anderson from the Crown Solicitor, referring to the letter of 4 March 1998 and Mr Anderson’s claim dated 15 July 1998 and, among other things, noting that Powerlink was still willing to negotiate a settlement and offering $1,000.00 plus interest at 8.5% from the date of resumption until the date of settlement.
The Crown Solicitor also asked Mr Anderson to respond to the offer by 4 September 1998, and to provide further particulars about the basis upon which he claimed compensation in the sum of $20,000.00 for the loss of value of land due to the deleterious effects of high tension power lines.
Conclusion: It is clear that the amount of compensation as determined is not the amount finally claimed by Mr Anderson and is not nearer to that amount than the amount finally put in evidence by Powerlink. Consequently, costs (if any) can only be awarded to Powerlink.
It is also clear that Powerlink had to come to the Land Court for the determination of this matter. There is no evidence that, before his claim for compensation dated 15 July 1998 (some three and a half years after the easement was acquired and more than four months after the matter was referred to the Court), Mr Anderson had nominated to Powerlink an amount of compensation to which he believed he was entitled. He may well have been aware of the terms of settlement with the other tenants in common and was aware of the amount being offered to him. This is not a case which has been initiated by a claimant who has made a vexatious, dishonest or grossly exaggerated claim. Until relatively recently he had made no claim at all, and the claim which he finally made was not filed in the office of the registrar as required by the Court order.
In matters where impressions of how negotiations are conducted are important, and participants may honestly differ in their perceptions of the process, it is highly desirable that the Court be given both sides of the story. In saying that I make no criticism of Powerlink or Mr Cross and accept that the evidence provided by Powerlink gives its version of the events. In the absence of any evidence from Mr Anderson about the negotiations, I conclude that the attempts at negotiation proceeded in the way described by Mr Cross and reflected in the correspondence.
I am satisfied that Powerlink is entitled to an award of costs. In determining how much it should be paid I have considered various factors including the fact that an interest in land owned by Mr Anderson was compulsorily taken from him and that he is entitled to compensation and that the amount of compensation payable is $1,000.00; the history of dealings between the parties, and the circumstances in which the matter came before the Court; the fact that Powerlink was willing to meet reasonable legal and valuation costs had they been incurred by Mr Anderson; the amount of costs which Powerlink has incurred and the amount it might, reluctantly, be willing to accept in lieu of a complete award of costs. I have considered those factors in light of the general direction in section 41(5)(a) of the Land Act 1962 that the Court shall be governed in its decisions by equity, good conscience and the substantial merits of the case.
Having regard to all the circumstances of the case I am satisfied that an award of costs to Powerlink in the sum of $1,320.00 would be appropriate.
Conclusions and orders
For reasons given earlier I have come to the following conclusions:
(a)The evidence supports a finding that compensation in the amount of $2,000.00 is payable for the resumption of the easement. Because, at the date of resumption, Mr Anderson was a tenant in common with others and had a half share in the ownership of the subject property he is entitled to compensation in the sum of $1,000.00.
(b)There is nothing in section 20 of the Acquisition of Land Act 1967 which provides for compensation for pain and suffering of the type asserted by Mr Anderson or for the award of solatium. I am not aware of any authorities that state that an award of solatium can be made in Queensland. There was no evidence to support that part of the claim. The claim for compensation for pain and suffering fails.
(c)Interest is payable on the $1,000.00 awarded as compensation at the rate of 8.5 per cent per annum from the date of resumption until 4 September 1998.
(d)Having regard to all the circumstances of the case, an award of costs to Powerlink in the sum of $1,320.00 would be appropriate.
The amount of compensation payable by Powerlink to Mr Anderson is determined in the sum of one thousand dollars ($1,000.00). Interest is payable on the sum of one thousand dollars at the rate of 8.5 per cent per annum from the date of resumption until 4 September 1998. Mr Anderson shall pay Powerlink’s costs fixed in the sum of one thousand three hundred and twenty dollars ($1,320.00).
GJ NEATE
MEMBER
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