Barns v Director-General, Department of Transport
[1994] QLC 63
•22 December 1994
|
BRISBANE
22 DECEMBER 1994
Re: Determination of Compensation -
Resumption for road and future road
requirement purposes -
Acquisition of Land Act 1967 and
Transport Infrastructure (Roads) Act 1991 -
A93-55 and 56.
James T and Lynette J Barns
v.
Director-General, Department of TransportJ U D G M E N T
By Proclamation published in the Government Gazette on 14 August, 1992, the following land was taken for "road" purposes:
County of Canning, Parish of Maroochy
an area of about 5.174 hectares (including about 1415 square metres from Easement A on RP 27021) being part of Lot 1 on RP 27021 contained in Certificate of Title Volume 5627 Folio 14
and
an area of about 2.610 hectares being part of Lot 2 on RP 27021 contained in Certificate of Title Volume 6388 Folio 200.
As from 6 November, 1992, a further area of about 881 square metres was taken from Lot 2 above, for "future road requirement" purposes.
Mr JT and Mrs LJ Barns are the registered proprietors of Lots 1 and 2 on RP 27021. They also own Lot 3 adjoining to the west. Their total aggregation contained an area of 52.55 hectares before the resumption. The land fronted the original Yandina-Coolum Road, near opposite the Coolum State School, on the western outskirts of Coolum, about 2 kilometres from the beachfront.
The land comprises original ti-tree flood plain, flat to very gently sloping in elevation and subject to periodic flooding. The property was originally developed as a sugar cane farm with an assigned area of 44.9 hectares. About 8 hectares in Lot 1 was used for the grazing of angora goats, llamas, alpacas and guanacos.
Dwellings were sited along the road frontage on each of the surveyed lots with original farm buildings on Lot 1. One structure had been converted and rented for use as a retail stockfeed outlet and another in association with a plant nursery business. At the date of resumption the sugar cane lands were subject to a lease until 31 January, 1994.
The whole of the land is zoned Rural A. On 5 July, 1991, Maroochy Shire Council had granted consent for use of Lot 1 for a "Catering Shop and Tourist Attraction and Facilities".
A plan which follows indicates the shape of Lots 1 and 2 and the total area resumed. The initial and major resumption was for the purpose of the Sunshine Motorway, which at this location includes the roundabout intersection of the relocated Yandina-Coolum Road. The second smaller resumption involved a relatively minor widening of the initial resumption in Lot 2 to provide access to the southern severance of Lot 1.
Lot 1 originally contained an area of 20.204 hectares. The north-eastern severance, after the resumption, contains about 6.662 hectares and accommodates the residential and farm buildings. The southern severance contains about 8.385 hectares.
Lot 2 originally contained an area of 19.139 hectares. The north-eastern severance, after the resumption, accommodates a dwelling and contains an area of about 3280 square metres and the southern severance about 16.022 hectares.
Separate titles will not issue for the severance areas.
No land is resumed from Lot 3 which contains an area of 13.213 hectares.
Claim for compensation
Individual claims for compensation were served on the constructing authority in the amounts of $1,900,000 for the first resumption of 7.784 hectares and $35,000 for the second of 881 square metres.
At the commencement of the hearing leave was sought and granted for the claims for compensation to be amended to the amount of $1,525,116 in amalgamation together with legal and valuation fees of $6,417.80, the latter amount being agreed between the parties.
The amended claim was in accordance with a valuation carried out by Mr R.R. Henderson, Registered Valuer, and was made up as follows:
"Values "before" $1,133,500
Values "after" $ 816,000
Compensation $ 317,500
plus severance and disturbance items $1,207,616
Total compensation $1,525,116"
Constructing Authority's Valuation
The respondent relied on a valuation carried out by Mr A.F. Carrick, Registered Valuer, as follows:
"Value before acquisition $ 600,000
Value after acquisition $ 505,000
Loss of land, severance and injurious affection $ 95,000"
Background
While it can be seen that the valuers were some significant quantum apart in the results of their before and after exercises, the contentious aspect of this matter was the claim for severance and disturbance items.
The claimants had exclusively used the aggregation of property for the growing of sugar cane until 1979. At that time what proved to be a successful venture - the breeding and farming of angora goats - was commenced in conjunction with the cane farming operation. In 1988 the "sugarcane operations" were leased out. By that time, being also involved with deer farming activities in New Zealand, the claimants became interested in llamas, alpacas and guanacos (which animals will be referred to henceforth, for convenience, as llamas). Twenty animals originally imported to New Zealand from Chile, were then imported to Australia and quarantined in Victoria. Three cria were born in quarantine which extended for a period of 9 months. After experiencing "extreme difficulty obtaining the relevant Government approvals" the claimants eventually brought 11 female adults, 3 male adults and the 3 cria to the Coolum property. The animals arrived in January 1991 and a successful breeding program commenced. By natural increase, there were a total of 32 llamas on the property by late 1992, when the initial construction phase of the Motorway roadworks commenced.
Effective husbandry of the llamas had required the provision of an artificial cooling facility in the form of a pond. This pond ("the llama dam") had been excavated in 1990 in preparation for the arrival of the llamas. Apart from cooling themselves, the llamas drank from the dam although, in the absence of the dam, plentiful alternative stock water was available.
In January 1993 an outbreak of what was first thought and then later confirmed to be blue-green algae occurred in the llama dam. The algal bloom was treated with a degree of success. However stock losses of both llamas and goats occurred through death and physical deformities. The claimants' llamas and angora goats, in healthy condition, were and remain extremely valuable.
It is the claimants' case that the algal bloom was caused by construction activities and the stock losses resulted from the algae induced toxicity which occurred in the llama dam. Loss of stock (including some crayfish killed by the treatment to the dam) and costs of remediation of water quality were assessed, under a number of headings, to amount to $681,739.
The claimants had intended to develop a "low-key" tourist facility based on a theme associated with the llamas and other exotic animals and the sale of animal products - hence the consent use which had been obtained for Lot 1. It was intended that when the cane farming activities ceased after expiry of the lease, the grazing, animal farming and tourist visitation activities would be extended over the whole of Lot 1 and eventually some of the activities to Lot 2. The existing grazing area was becoming overstocked at the date of resumption although some relief was possible through the grazing use of sugarcane headland and fallow areas. While the whole of Lot 1 (and the total aggregation) was subject to periodic flooding, the least effect of flooding occurred on the slightly higher elevation land at the original road frontage. Animals were able to be either safely accommodated at the existing shelters or, under extreme flood conditions, transported from the road frontage area. No animal underpass was provided within the roadworks and the southern areas are physically severed from the animal shelters and higher ground. The claimants say that to reinstate the before resumption position, various improvements will be required to be effected on the southern severance, to allow the intended grazing operation to proceed. Even then, the need will remain for regular transportation of stock to and from that land. The various items claimed as a result of the severance to Lot 1, amount to $370,877.
As a further piecemeal claim, although partly considered in Mr Henderson's "after resumption" valuation of Lot 2, works required to prevent erosion/scouring to the southern severances of both Lot 1 and Lot 2 but primarily Lot 2, were assessed in the total amount of $155,000.
Preliminary Issue
Due to the extent of evidence which was intended to be called relative to the incidence of and damage associated with the blue-green algal bloom, a preliminary issue was raised by way of the respondent constructing authority objecting to the claim for loss of stock. It was submitted that, even on the assumption that a causal link could be established between the construction activities and the algal bloom, the Acquisition of Land Act 1967 did not provide the Land Court with jurisdiction to determine such a heading of claim. The claimants' submission was that, if a causal link existed then the damage which occurred was one flowing from the resumption and the construction activities and should be determined by this Court.
After consideration of the objection, and the submissions thereon, it was decided that the Court did have the necessary jurisdiction to determine the question of stock losses and the side issues associated with the algal bloom - if the causal link was established. The hearing then proceeded on that basis.
Blue-Green Algae
It became necessary for the Court to hear considerable evidence relative to blue-green algae, the causes of algal bloom, treatment of the condition, the potential for water toxicity and the incidence of adverse health effects within the animal herds.
On the considerable evidence presented there is seen to be no doubt that an algal bloom occurred in January 1993. There can also be no doubt that the formation of the algal bloom in the llama dam was associated with the bacterial genus Microcystis, an organism which is capable of causing adverse health effects both to humans and animals.
The expert evidence as it related to water quality indicated that Microcystis is a common inhabitant of water storages, particularly those with limited flow regimes. It is not necessary to establish how the cells came to be in the llama dam in the first place. The question is whether the activities of the respondent's contractors or the construction of the road stimulated the seeding of the cells.
The primary expert for the claimants in matters of water quality (as well as hydrology) was Dr T.C. Johnson, whose expertise in the area of water quality was specialised. He, not unnaturally, had no firsthand knowledge of the llama dam at the time of the initial algal bloom or prior to the completion of the Motorway construction. His theories were based on the causation of algal bloom in the dam being linked to alteration of water table levels. While it is submitted that the claimants' case does not stand or fall on an alleged sudden drop in the water level of the dam at about the time of initial road drainage works, that initial bloom is clearly an event critical to the outcome of the overall claim under this heading. If a sudden drop in water level in the dam occurred, and that resulted from construction activities, then the algal bloom might reasonably be linked to the construction activities, based on Dr Johnson's opinions. However, even if any drop in the water level in the dam did occur but that was the result of climatic conditions, as the respondent argues, then the algal bloom and the timing of the construction activities would reasonably be nothing more than coincidence.
The allegation of the sudden drop in water level in the dam comes from Mr Barns. It is generally accepted that the principal supply of water to the dam comes from the excavation being "a window into the water table". As the case was argued, Dr Johnson's theory of alteration to water table envisages that the "window" is into a discreet perched water table. The respondent's experts are convinced that no perched water table exists, but the "window" is into the regional water table.
The gauge for the evidence on water level in the dam, became the position within the southern bank of an earthenware pipe. Mr Barns gave evidence that when the dam was excavated he had connected it to an existing deep drain and pondage area ("the pond drain"), a short distance to the south, by way of 150mm earthenware pipes. The pond drain contained vegetation and clear water and Mr Barns had believed the pipe connection would serve as a flushing device. It was his evidence that the pipe was laid below what he maintained was a fairly static water level in both the dam and the pond drain. It was also his evidence that, unless water was pumped out of the dam (an operation which he had carried out on several occasions but well prior to the algal bloom) the water level in the dam never fell below the level of the pipe. Even after significant pumping, the water level would rise, he said, in equilibrium with the pond drain to above the pipe "within 24 hours". Mr Barns said that he did not make a habit of regularly checking the water level in the dam. However, when he had first observed the algal presence he also noticed that the water level had dropped about 2 feet (60cm) below its normal level, and well below the earthenware pipe. He referred to pumping and dewatering activities being carried out in the vicinity of the dam by the contractors at this time. He spoke of the filling in of the pond drain and culvert construction a short distance to the south-east of the dam and thought there had been dewatering activities at that location at the time of the algal bloom. He specifically recalled dewatering activities at that time at a dual culvert site (3A/3 and 3A/11) about 300 metres to the north-west of the dam. Mr Barns produced photographs of work being carried out in that location on 22 or 23 January, 1993. Photographs were tendered of the blue-green algae scum in the dam on 23 and 24 January, 1993. There is a photograph showing the western extremity of the pond drain having been very recently cleaned and a north-western drain deviation towards culvert 3A/3 under construction but not linked to the pond drain as at 24 January, 1993. There is, not unnaturally, no photography of the water level in the dam immediately prior to the algal bloom. There is no photographic evidence from which the water level in the dam relative to the pipe can be established on either 23 or 24 January when the scum was obvious. The only significance which can be placed on the lack of photographic evidence of the water level at the time of the algal bloom, is the assertion that a sudden drop had been observed. It is not an unreasonable suggestion (by the respondent) that an occurrence which was put forward as a significant event - i.e. the water level being suddenly well below the pipe - was not photographed when other activities in the immediate vicinity, at the same time, were.
Some general support for the evidence of Mr Barns as to water level in the dam was given by Mr R.W. Rickards, who has had considerable practical experience in matters associated with the pondage of water and water quality maintenance, at least as such matters apply to freshwater crayfish. Mr Rickards had inspected the dam "a week or two weeks" before December 1992 for the purpose of stocking it with crayfish. He said that the earthenware pipe was at that time about 4 inches below the water surface level. He specifically remembered this because he had advised Mr Barns to screen the external inlet to prevent the entry of predators (eels). He next inspected the dam on 23 January, 1993, at the request of Mr Barns to advise on the algal bloom. At that time he stated that he "noticed that the level of the dam had been reduced considerably. It had been reduced below the level of the pipe. It would have dropped approximately 2 feet." Unfortunately, Mr Rickards' evidence did not indicate any precise recollection of detail, apart from the water quality. He stated that at that time "Working adjacent to the property were the contractors for the Motorway. They had also at this stage reduced the airflow over the dam by constructing a portion of the Motorway to areas well above ground level ...". That, clearly, on evidence from others which I accept, was not the stage of construction which had been reached at the time to which Mr Rickards referred. It was on Mr Rickards' advice that the dam was treated with copper sulphate. He had estimated the dosage by calculation of "the approximate number of litres in the dam". In company with Mr Barns he had calculated a water volume of 1000 cubic metres, based on stepped measurements, a rough V-shaped excavation and a depth of water of 3 metres. There was nothing in his evidence which indicated that the 3 metres was to take account of the alleged reduced level. As I understood Mr Barns' evidence, the "normal" depth of water in the dam was thought to be about 3 metres. Again, nothing of significance turns on Mr Rickards' calculation, except that the volume of water in the dam was an important consideration in the correct dosage of copper sulphate.
Dr Johnson found that the reduced water table level complained of by Mr Barns as being associated with construction works, would be explained if the dam was sourced by a perched water table rather than the regional water table. The possibility of such an occurrence is not remote, in his opinion, when coffee rock stratas occur as they do in the immediate locality. After discussing his understanding of the situation at the time of and immediately prior to the initial algal bloom, Dr Johnson's tendered report contained this passage:"The following factors were therefore all likely to have contributed to a lowering of the water table in the pond.
.cracking of the impermeable coffee rock layer
.construction of low level table drains, immediately adjacent to the pond and extending to the south and west before joining culvert 3A/3
.significant dewatering, at levels below the pre-existing standing water level. "
It is clear that Dr Johnson's explanation of Mr Barns' evidence of the sudden drop in water level related to the information he was supplied by Mr Barns as to the progress of construction.
The respondent called Mr C.J. Murphy, the construction manager for this section of the Motorway. After original advice to an inspector, it was to Mr Murphy that Mr Barns reported the algal bloom. Mr Murphy said that he had not been aware of any complaint at that time relative to the water level in the dam. He had made various diary notes of matters where contact with Mr Barns had occurred. These notes had prompted his recollection of conversations regarding the algal bloom. His memory of the timing of some discussions was in direct conflict with Mr Barns' evidence. While his memory of some things, such as an algal bloom on another property seems inexplicable, I accept Mr Murphy's evidence as to the timing of the activities of the contractors. He confirmed that "dewatering" had occurred, but to an insignificant degree in relation to the water table, at the culverts 3A/3 and 3A/11, when a low flow drain was being concrete lined, at the time or immediately before the algal bloom. He said that relatively small volumes of water were pumped from a short and temporarily bunded section of the drain. The water was pumped to immediately adjacent areas and not removed from the water table as such. The existing pond drain had been initially cleaned, but according to Mr Murphy had not been filled in, diverted or broken into until some days after the algal bloom had occurred. No dewatering of the pond drain had taken place. His diary had recorded the accidental breaking of the 150mm earthenware pipe between the dam and the drain on 28 January, several days subsequent to the bloom.
Another witness called by the respondent was Mr A. Litwinowicz, a geotechnical engineer. His evidence was directed primarily at the rebuttal of Dr Johnson's suggestion of a perched water table being the main source of water supply to the llama dam. He saw it as being highly likely that the water level in the dam would be sympathetic to regional groundwater fluctuations. It was Mr Litwinowicz's assessment that the regional groundwater table ranged between RL0.3 and 0.9 and was capable of relatively rapid fluctuation being responsive to variable climatic conditions. Groundwater measurements at a site not in the immediate vicinity, but in Mr Litwinowicz's opinion, reflecting the water table associated with the dam, indicated a level of RL0.37 in February, 1993, fluctuating between RL0.24 and 0.95 in the months to July, 1993. The invert level of the reference earthenware pipe in the dam was accepted by the parties as being RL0.46. Mr Litwinowicz had researched and tendered the recent rainfall history at Coolum and it was his opinion that at the time of the algal bloom, the regional water table would have been low following a significant period of below average rainfall.
Whether the llama dam is primarily sourced from the regional water table or a perched water table is seen only to be relevant if the stage of construction work reached at the time of the algal bloom was as Dr Johnson had surmised. Dewatering activities at culvert 3A/3 and 3A/11, it seems, would have been the only possible explanation of a sudden drop in the water level in the dam. After hearing Mr Murphy's explanation of that activity, it seems highly unlikely to be the cause of any sudden drop in the level in the dam. If any fracturing of the coffee rock strata in the immediate locality of the dam occurred, there is no corresponding construction activity which might have caused such a happening at least until subsequent to the algal bloom.
I am able to accept that some interaction occurred between the pond drain and the llama dam but through the pipe connection. While it seems unsupported by some of the expert evidence, I can also accept that run-off storm water into the pond drain was retained in that location due to the control level further downstream before it linked with the overall drainage system. It seems that some equilibrium was created between the surface levels in the two pondage areas, but logically that might be retained only while the level in the pond was in excess of the invert level of the earthenware pipe. I am not convinced that such water level could have been regarded as permanent as suggested by Mr Barns.
It seems that the local drainage system as it relates to the pipe level in the dam, is now more efficient than before, being connected to the overall system, but that was not the case as at the date of the initial algal bloom.
Dr Johnson also suggested that it is likely that reduced surface run-off and reduced air flow over the dam could impact upon the potential for future algal bloom. Certainly, costly measures have been introduced by the claimants in an endeavour to maintain acceptable stock water quality, due to the primary need to supply a cooling facility for the llamas.
In the end result, there seems no doubt that conditions existed relative to the llama dam which were capable of promoting a blue-green algal bloom regardless of the initial or eventual construction works. I have not been convinced that any construction works at the time of, or immediately prior to, the initial algal bloom in January, 1993, could reasonably be linked to that bloom.
It seems to me then that the location of the dam relative to the surface run-off and motorway embankments becomes of secondary consideration due to the prevailing climatic conditions, the primary source of the dam water supply, likely nutrient level within the dam and the use to which a llama pond is required to be placed.
Whilst obviously an unfortunate and expensive experience, it seems likely that the introduction of methods to ideally prevent or at least to mitigate against such algal bloom occurrence were, in hindsight, a necessary function of the management of these animals in such a geographic location - regardless of the construction or location of the Motorway.
With the necessary causal link not being established, I am unable to find that stock losses from death (including the crayfish killed by the application of copper sulphate) or depreciation in value from physical disabilities, due to initial or subsequent algal induced toxicity, or costs associated with the prevention or mitigation of further losses, are a direct or natural consequence of the resumption.
One of the complaints of the claimants is that implicit in their dealings with the constructing authority relative to the algal bloom, was an understanding that any knowledge gained by the constructing authority or its agents through the water testing which was carried out, or potential toxicity, would be immediately communicated to them. Any breach of the alleged obligation in that regard is not a matter lying within the jurisdiction of this Court.
Valuation Approaches
Mr Henderson - claimants.
Mr Henderson valued Lot 1 before resumption as "approved Tourist Facility land" apportioning values of $40,000 per hectare to most of the frontage grazing lands of 8.25 hectares which accommodated some of the buildings and $20,000 per hectare to the rear land. As the rear land of 11.6 hectares was subject to a lease at the date of resumption he deferred the highest and best use value for 18 months at 9%, then added a nominal $3,000 as the added value of the lease. The total value of the grazing and cane land (as leased) was $537,044.
The improvements on Lot 1 associated with the existing grazing use were valued as follows:Dwelling $62,500
Cottage $16,500
Stock sheds $21,000
He then apportioned a notional 1500 square metres of the site as accommodating the stockfeed premises and valued that parcel as improved at $45,500. A notional 2000 square metres of the site was apportioned for the nursery premises and he valued that parcel as improved at $23,500.
His total valuation of Lot 1 before resumption was then rounded to $706,000.
After the resumption, Mr Henderson valued the north-eastern severance, which he calculated to contain 6.28 hectares excluding the stockfeed and nursery premises, again as "Tourist Facility Land", at $36,000 per hectare and the southern severance, calculated as 8.415 hectares, as "Tourist Facility Land" at $12,500 per hectare deferred for 18 months at 9% and the cane lease a nominal $2,000 totalling $309,512. He valued the dwelling, cottage and stock sheds as before, but reduced the stockfeed premises to $28,500 and the nursery premises to $14,500. The total after resumption valuation of Lot 1 was rounded to $462,500, the difference between the before and after valuations being $243,500.
Lot 2
Mr Henderson valued this land before the resumption as having potential "for expansion of the tourist facility on Lot 1" at $12,500 per hectare deferred 18 months until expiry of the lease, then added a nominal value for the lease of $6,000. The dwelling was valued at $40,000 and the total before resumption valuation became $256,500.
After the resumption, the southern severance was apportioned as 8.145 hectares of rear land at $11,250 per hectare deferred for 18 months, then 8 hectares of "front land with severe drainage problems" at $5,000 per hectare, and the cane lease at $3,000. The small north-eastern severance was valued as a homesite at $25,000 and the dwelling remained unaltered at $40,000. The total after resumption valuation of Lot 2, in the two severance areas was $188,500.
Under the separate heading of drainage rectification works was an allowance totalling $155,000 for both Lots 1 and 2. This assessment was based on the estimate of the cost of rectification works as carried out by Dr Johnson and more will be said of this later.
Lot 3
Mr Henderson valued this land of 13.213 hectares as cane land at $10,000 per hectare then deferred that value for the 18 months of the lease, adding a nominal value of $3,000 for the lease, then $51,500 for the dwelling, giving a rounded before resumption valuation of $171,000.
After the resumption, the land was reduced in value to $9,500 per hectare then again deferred for the lease. His added values of the lease and the dwelling were as before. The total after valuation was rounded to $165,000.
Mr Carrick - respondent.
Mr Carrick valued the aggregation of Lots 1, 2 and 3 before the resumption as 52.549 hectares of assigned, cultivated, drained sugarcane land at $9,000 per hectare, with a total land value excluding improvements of $472,941.
After the resumption, he valued the southern severances of Lots 1 and 2 as follows:22.7 ha assigned cultivated and
drained cane land @ $7500/ha $170,250
1.7 ha unsuitable for cane production
@ $3000/ha $ 5,100
$175,350
Lot 3 was valued at $9000 per hectare as before in the amount of $118,917.
The 6.662 hectare north-eastern severance of Lot 1 was valued as a separate rural site in the amount of $80,000 and the 3,280 square metre north-eastern severance of Lot 2 as a separate titled rural site, in the amount of $20,000.
Mr Carrick held the opinion that while the main dwelling on Lot 1 and the dwellings on Lots 2 and 3 were injuriously affected as a consequence of the resumption, none of the original farm buildings were affected. For that reason he did not attempt a full valuation.
Instead the before and after valuations of the dwellings were as follows:Lot 1 - before $51,250
after $46,250
Lot 2 - before $36,400
after $31,400
Lot 3 - before $37,800
after $32,800
Evidence of value and Findings
Before resumption
Mr Henderson relied on two sales to support his valuation of Lot 1 with the Tourist Facility approval in place.
A site of 4.047 hectares in Mark Road, Caloundra, with a previous approval for caravan park development, at the rear of an industrial estate, sold in March 1992 to show a value of $93,897 per hectare. Mr Henderson commented that the sale land had "overall inferior location".
The original "Big Dinosaur" tourist attraction located on the Old Bruce Highway at Tanawha, sold in September, 1992, for $300,000 showing a 4.47 hectare land content, on Mr Henderson's analysis, of $33,500 per hectare. His information was that the property had been purchased for the purpose of developing the tourist attraction. It was his opinion that the sale site being 12 kms from beaches and 2 kms from the new highway, had inferior location to the subject Lot 1.
Mr Carrick had also carried out some investigation as to the circumstances of the "Big Dinosaur" sale. However, in conflict with Mr Henderson's advices he had been informed that the property had been purchased not as a tourist facility but predominantly for rural residential use, associated with a weekend market. He disagreed with Mr Henderson's analysis of land value content in that sale.
Mr Carrick's opinion was that the approval for development of Lot 1 added no value to the site. In his opinion the success of any tourist facility was dependant largely on the selected theme and then exposure to passing traffic. He saw the traffic on the Yandina-Coolum Road prior to the resumption as being predominantly localised. If the site had any potential for a tourist facility development before the resumption, that potential would in his opinion have been enhanced significantly by the resumption through the exposure to the higher density passing traffic on the Sunshine Motorway.
The claimants and Mr Henderson do not accept that any increased exposure through the construction of the Motorway compensates for what they see as access which is difficult to negotiate.
The claimants said that they recognised an opportunity, before resumption, to integrate their existing involvement with exotic animals into a low-key family orientated tourist attraction. The theme already existed in that casual interest in the animals had been demonstrated by tourists and visitors to the area and as well, there had been organised visitation by school groups. They say that the development permit had not been acted upon due to the original uncertainty of the Motorway proposals.
With the proximity of the site to Coolum Beach which is in itself a holiday location within the wider Sunshine Coast tourist destination, I am persuaded that the development permit which had been obtained allowed potential for Lot 1 which was superior to that of a pure animal and cane farming holding. Nevertheless, the physical features of the land, its flooding potential and the low intensity development as approved, all were matters logically affecting market value.
There seemed to be a suggestion by the respondent that because the plans lodged with the application for the town planning development permit depicted a plantation of sugar cane near adjacent to the rear of the buildings on Lot 1, as was no doubt the situation at the date of the application, the permit did not extend to the farming of animals. Implicit in the suggestion was that different considerations are relevant when any proposed development within Maroochy Shire would reduce the area of agricultural land available for the growing of sugar cane. I agree with the claimants' response in that as the land is zoned Rural A, there is no compulsion on the owners to continue to grow sugar cane. Use, or extended use, for animal husbandry does not require Council consent.
The evidence of Mr Henderson as to the overall worth of Lot 1 for the low-key tourist facility use as proposed is however, not convincing. The concentration of activity and intensity of use would have related to the Yandina-Coolum Road frontage while the majority of the land was intended to be used for the grazing of animals with casual tourist interaction.
Based on the overall evidence provided as to the worth of rural land in a location such as the subject and being suitable for sugar cane growing, there are no extraordinary differences between the valuation opinions provided. After considering Mr Henderson's views as to the lease existing at the relevant date, it seems to me that Mr Carrick's valuation of $9,000 per hectare for the sugar cane land overall is not unreasonable. I have concluded that the value of Lot 1 with a permit for the development as proposed, identifies much more closely with that base Rural A level of value than to the level of value suggested by Mr Henderson. I will adopt for Lot 1, before resumption, the value Mr Henderson ascribed to Lot 2 - i.e. $12,500 per hectare overall. I will adopt Mr Carrick's valuation of $9,000 per hectare for Lot 2. If it was necessary to do so, I would find a slightly higher value for Lot 3 as a separate parcel. I am not convinced however that the value of Lot 3, except for the dwelling, requires further consideration.
After resumption
It is crucial to this aspect of the claimants' case, and as it relates to the value to them, that the southern severance of Lot 1 be considered as having highest and best use for tourist orientated animal farming in association with the use of the north-eastern severance.
The claimants see it as an infringement of their right to deal with their property as they see fit by consideration, for example, of the balance of Lot 2 or Lot 3 as providing land to relieve a developing overstocking problem for their animal herd.
With the support of Mr Henderson, the claimants see it as reasonable that reinstatement as best it can take place of their previous position, in the absence of a stock underpass to satisfy their plans for extension of grazing activities, now involves the provision on the southern severance of Lot 1, of:(a)access to a standard and physical level as it relates to flood susceptibility existing at the old Yandina-Coolum Road - estimated cost $139,550;
(b)an area of 1000m2 to be filled to a relative level equivalent to the old Yandina-Coolum Road frontage - estimated cost $113,330;
(c)yards and loading race - $4,000;
(d)stock shelter shed 150m2 to cater for 40 head - $15,000;
(e)cottage for caretaker purposes - $38,000;
(f)connection of electricity - $20,000;
(g)stock dam - $1000;
(h)boundary fencing - $24,000;
(i)compensation for the transportation of stock, $1440 per annum in perpetuity at 9% - $15,997.
Where necessary, Mr Henderson was assisted with estimates of cost provided by Mr N.R. Covey, a civil engineer.
In practical terms, the claim suggests that direct unrestricted access to about 8.4 hectares of flood susceptible grazing land, worth on Mr Henderson's figures about $92,500, represents a value to the owner of about $370,000.
If the claimants' decision is eventually to use the southern severance of Lot 1 for the grazing and farming of exotic animals, then that is their choice. There can be no doubt that the provision of a stock underpass would have been convenient for the extension of animal grazing and to a degree tourist visitation, when the lease for cane farming expired.
However, with its flooding susceptibility the use of the southern severance for grazing as a separate entity, is clearly not the highest and best use of that land due to the costs involved in providing not only acceptable internal access, but facilities for the management and retrieval of stock.
It seems that the highest and best use of the southern severance of Lot 1 is now for aggregation with adjoining land for pure agricultural (sugar cane farming) use. The cost of providing access and a flood free building site would seriously affect its value for subdivision as a separate entity. While it might be argued that the land could possess some enhanced value for disposal to an adjoining owner, it is also relevant that a quite limited adjoining owner market would exist. In the particular circumstances of the claimants' land holdings, the potential exists for the southern severance of Lot 1 to be amalgamated with the southern severance of Lot 2 without it being subjected to any limiting market forces. For that reason it seems to me that the approach taken by Mr Carrick in the after resumption valuation of the southern severances of Lots 1 and 2 takes into account the reality of the situation provided of course sufficient consideration is given to the disabilities of that aggregation after the resumption. Questions of access and drainage will be discussed later.
While Mr Carrick has valued the north-eastern severances of Lots 1 and 2 as being "separate titled rural lots" (when in fact separate titles do not result without subdivisional application) his verbal evidence suggests that his valuations are intended to be discounted for the minimal risks involved in obtaining separate title. His evidence as to the subdivisional position was supported by Mr J. Franklin, a town planner. The sales evidence produced by both valuers, for rural-residential and rural sites, seems to support his argument that the sites were considered on an in globo basis. Mr Henderson has in fact valued the north-eastern severance of Lot 2 at a higher figure than did Mr Carrick. I will adopt Mr Carrick's valuation of $20,000 for the north-eastern severance of Lot 2 after resumption, but on the basis of its potential for separate title to issue on application for subdivision.
Mr Henderson's valuation of the north-eastern severance of Lot 1 is much higher than that of Mr Carrick, because Mr Henderson sees the tourist facility approval as possessing significant value, while Mr Carrick values the land purely as a rural site.
It seems logical that, if Lot 1 possessed a premium value for the tourist attraction theme before the resumption, then the smaller severance area on which the more intense development was planned, with superior exposure and location adjacent to an identification roundabout Motorway feature, would be somewhat enhanced in value, on a pro rata unit of area basis, after the resumption. However, the particular theme, around which the development was planned, according to the claimants, required the larger area to accommodate the animal farming segment.
There seems to be no dispute, and certainly Mr Carrick held the opinion, that the success of any tourist theme park depends not only on suitable location, but the attraction offered by the particular theme.
If the site is now of insufficient size to accommodate the original proposal, the alternatives would be to scale down the animal farming segment, or acquire and develop a suitable replacement site. A third alternative, along the lines it is suggested the claimants would follow, would be to fragment the animal farming segment using alternative land. The third option requires, as I have found earlier, land physically suitable for such use.
In terms of compensation assessment the claim for items of severance damage verges on the concept of "disappointed hopes". At the date of resumption, the proposed tourist attraction development had not commenced. The animal farming operation was largely contained within the north-eastern section now severed. Nevertheless, natural extension of that animal farming segment was available before the resumption and not after. I have been persuaded that the value to the owners provided by that permit has been affected deleteriously rather than enhanced. If an alternate property was to be acquired to replace the lost potential, acquisition costs would be involved. If the animal farming operation was scaled down, business losses may occur. If that operation was to be fragmented using in addition, alternative suitable property for expansion, then management problems would result.
I have decided that the uncertainty is best resolved by accepting that any value which the development permit adds to the site value of the north-eastern severance, should be ignored due to the risks now associated with the theme, as envisaged by the claimants.
Accordingly I will adopt Mr Carrick's assessment of that residual area, on the basis that its value lies as a potential separate rural site, in the amount of $80,000.
Improvements - after resumption.
Mr Carrick has, fairly, in my opinion, allowed for injurious affection of $5,000 to each of three dwellings. This approach will be adopted.
While Mr Henderson did not depreciate the value of the dwellings, he assessed injurious affection to the stockfeed and nursery premises in the amounts of $17,000 and $9,000 respectively. His basis of valuation was to assess market rentals before and after the resumption, adopting the notional sites allowed. The capitalised difference then became the amounts claimed. It is alleged that the proprietors of the businesses have suffered a downturn in income because the previous direct access to passing trade is now denied. It seems that the businesses previously relied on local trade. If this is so, it is difficult, particularly in the absence of trading figures, to accept the allegation of loss. If anything, the enhanced exposure for advertising would have been expected to offset any losses associated with the post-resumption access situation. Again, I have not been convinced by Mr Henderson that his assessments of market rentals either before resumption or after, are supported and there is no substantive evidence as to the alleged downturn in business. The rental arrangements seem to be somewhat loose and there is no evidence that the claimants have suffered any direct rental income loss.
No award will be made under the heading of claim for the stockfeed or nursery premises.
Additional severance and injurious affection items
As already indicated the award of compensation will be made on the basis that the highest and best use of the southern severance of Lot 1 is not for the extension of grazing facilities. It follows that the claim for items of reinstatement to replace the grazing potential which previously existed, will not be allowed. Without going into detail as to whether the items as assessed are reasonable or not it is clear that reinstatement as proposed lacked economic practicality.
Items such as the potential for disturbance to the operation through transportation of stock and management disabilities have been considered in the site value approach to the north-eastern severance of Lot 1.
Drainage
The subject properties are significantly affected by flooding. It is evident that a somewhat complex drainage pattern, both natural and artificial, existed with regard to flooding events. Mr Barns, through his farming activities and knowledge gained from local flood experiences, has doubts as to the effectiveness of the drainage works including the alteration of existing drainage systems, resulting from the Motorway construction.
Dr Johnson had investigated the background to design criteria finally adopted for drainage associated with the Motorway as it affects the claimants' property. He had examined in detail "major concerns" which had been raised by Mr Barns in that:.the drain lines provided downstream of major culvert crossings incorporated in the Motorway are much smaller in size than the culverts, and the orientation of these drains is such that higher flows would be diverted directly through existing cane areas with commensurate crop and erosion damage.
.little attention was paid to site concerns raised by the landowners prior to construction of the Motorway particularly in relation to pre-existing flow conditions.
Due to the costs involved in undertaking the analyses which he felt would be necessary to fully understand the complex hydrology of the area, before and after the roadworks, Dr Johnson was forced to analyse and interpret information obtained for him from the respondent under Freedom of Information legislation. He was concerned as to the legality of constructing outlet works on the retained land of the claimants as well as the concentration of upstream flow discharging on to the claimants' property in the alleged absence of downstream drainage rights.
He had formed the opinion that where certain works had been effected at the outlet of drainage through the roundabout and it seems, within the claimants' retained area, peak outlet flow velocities would be such that insufficient scour protection had been provided. He assumed a notional area of 200 square metres which would require stone pitching protection in this location at a cost of $25,000.
At the Lot 2 downstream outlet of culvert 3A/11, Dr Johnson identified a potential detriment to the claimants' retained land, through significantly concentrated flow. "With increasing intensity of flow, the present situation could cause severe damage to crops and soil" Dr Johnson stated - "It therefore appears incumbent for the Barns to construct a channel from the culvert outlet to convey the concentrated flow through what was previously a productive cane field. Failure to do so will almost certainly result in erosion damage."
After considering several options, and "following discussions, it was decided to adopt the unlined channel solution and estimate the likely construction costs involved". That resulted in an estimate of $130,000, for excavation of about 37,500 cubic metres of soil, to provide a channel about 300 metres long, 90 metres wide and 1.5 metres deep. In response to the evidence given by Dr Johnson, the respondent called Mr P. Graham and Mr F.C. Abbey, engineers involved in consultancy work for the constructing authority, to explain the history of hydrology studies and the drainage design for this section of the Motorway. Some evidence on erosion control was also given by Mr Murphy but the principal witness for the respondent relative to erosion and scouring potential was Mr M. Hee who at the relevant period of the Motorway's design was the Principal Adviser - Hydraulics employed by the constructing authority.
After hearing the technical engineering evidence relative to hydraulics and the history of the design and construction of the Motorway, I have come to the conclusion that Dr Johnson's theories as to potential for scour and erosion are, fortunately, unlikely to be realised. Mr Hee has had considerable practical experience with the constructing authority over a long period throughout Queensland, dealing with matters of stormwater drainage design and the causation of scouring and erosion from road culverts. He was closely involved in the physical modelling on which the Motorway major flow drainage design was based. It may well be that the complexity of the drainage in this low gradient flood plain area is such that the precision of modelling for all flood events is open to argument, but I am satisfied, on Mr Hee's evidence, that the culvert design has taken account of the potential for scouring. Little weight can be placed on his broad-brush confidence gained from his experience with culverts in sugar cane land generally, for he had not visited the site after the construction works, for the purpose of understanding site- specific physical conditions. However, his theories as to minimal risk scour potential are based largely on what appears to be factual - that under high flow conditions water from the eastern side of the Motorway will be outletting into and angular to, a vast body of slow-moving flood water on the western side.
While we heard much of such matters as the prediction of the afflux differential, flare angles and the like, Mr Hee's practical experience indicated to him that in the subject location flow velocities capable of causing erosion will be "killed" by emergence into the body of water which will exist - rather than into air. His theory in this regard seems logical.
In the alternative, the erosion control suggested by Dr Johnson, at the outlet of culvert 3A/11 is seen to be lacking in practical application both as to design and net cost (if as an example, the worth of the excavated material was to be considered).
Nevertheless, the culvert 3A/11 is a dominant feature, largely above surface level, facing arable land. If an expert such as is Dr Johnson with at least some information available to him, saw potential for erosion damage, then lay people such as the lessee who did not replant with sugarcane allegedly because of his erosion fears, or participants in the marketplace generally, might be forgiven for doubting the negligible risk seen by Mr Hee.
The piped culvert outlet at the roundabout has involved some drain widening on the claimants' remaining land and it seems some further but minor scour protection may have been provided had contractor access not been denied, as it eventually was by the claimants.
While I do not propose to award compensation for any specific erosion control works, the question of scouring potential needs to be considered in the land value. Mr Carrick has reduced his after resumption valuation of the cane land to $7,500 per hectare to allow for effects of "severance and injurious affection" and has, in addition, allowed a "buffer" area amounting to 1.7 hectares along the Motorway alignment to account for matters such as short rows. He saw the area "north of the existing drainage easement" within Lot 2 having similar cane growing potential after
the resumption as before. It was this area that Mr Henderson had valued on a heavily discounted basis (for future expansion of tourist facilities on Lot 1) due to the severe drainage problems which he envisaged. No doubt with a channel 90 metres wide and 1.5 metres deep it would be far less valuable than before.
Mr Carrick's evidence was that he had not seen the need to make any further allowance for drainage disabilities resulting from either the culvert 3A/11 or the roundabout outlet. On Mr Hee's evidence Mr Carrick was entitled to take that approach at least as it related to potential for erosion.
As a side issue, it is observed that the farm access position generally between the aggregated sections north and south of the drainage easement requires consideration. It seems clear that the before resumption internal farm access to the aggregation was superior to that available after the resumption, due to the existing drainage configuration.
With consideration to the probability of market reaction to matters such as the shape and working difficulties of the balance severance areas, drainage arrangements as they are concentrated in the after resumption situation and potential for effect of drainage on internal access to the southern severances in aggregation, I will discount the after resumption valuation to $6,750 per hectare over the total area of 24.4 hectares.
Compensation award
Land
Before resumption
Lot 1 - 20.204 ha Rural A zoned land with consent
for catering shop and tourist attraction
development - partially encumbered by
lease for sugar cane farming @ $12,500/ha $252,550
Lot 2 - 19.139 ha Rural A zoned land with highest and
best use, as leased, for sugar cane farming
@ $9,000/ha say $172 250 $424,800
Adopt $425,000
Less
After resumption
North-eastern severance Lot 1 -
residual 6.662 hectare Rural A zoned land
with potential for formal site subdivision $ 80,000
North-eastern severance Lot 2 -
residual 3280 sq.m. Rural A zoned land
with potential for formal site subdivision $ 20,000
Southern severances Lots 1 and 2 in aggregation
as 24.4 hectares Rural A zoned land,
with sugar cane assignment - injuriously
affected by shape, working disabilities,
with concentrated drainage discharges under
roadworks and some internal access
disabilities @ $6750 ha overall - adopt $165,000
$265 000
$160,000
Add
Injurious affection to dwellings on
Lots 1, 2 and 3 $ 15,000
$175,000
Add Disturbance items -
Legal and valuation fees as agreed $ 6,417.80
TOTAL COMPENSATION $181,417.80
Interest
The Court was advised that part of the legal fees being an amount of $900 was paid on 9 March,1992. Part of the valuation fees being the amount of $1,785 was paid on 7 April, 1993. Interest was not sought on the balance of those fees.
An advance payment in the amount of $95,000 was made on 23 April, 1993.
Although two resumptions are involved, the second, at a slightly later date, is of a relatively small area. Had it been necessary to apportion compensation for the second resumption then a quite nominal amount would have resulted. No financial imposition or advantage of any significance will result if interest is calculated from the earlier date. It is noted that part of the legal fees as mentioned above were paid some months prior to the earlier resumption date.
I ORDER that interest at the rate of 8.5 percent per annum be paid by the respondent constructing authority to the claimants as follows:
On the amount of $175,900 from 14 August, 1992 up to and including 23 April, 1993On the amount of $82,685 from 23 April, 1993 (the date on which the advance was paid and shortly after the date on which the claimants paid part of the valuation fees) up to and including the date on which final payment of compensation is made.
RE WENCK
MEMBER OF THE LAND COURT
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