Barns v The Director-General, Department of Transport

[1995] QLC 47

[1995] QLC 47

 

  LAND COURT,

BRISBANE

13th December, 1991

Re:     Claim for Compensation -
  A90-29.

Harry Segal and Others
  v.
  Queensland Railways

(Acquisition of Land Act)

RE:  APPLICATION FOR COSTS

In this matter the amount finally claimed by the claimants in the proceedings was $1,770,000 plus disturbance.  The amount of the valuation finally put in evidence by the respondent was $330,000.  Compensation was determined at $650,000 plus the agreed sum for disturbance being $8,063.12.  The respondent has asked for costs.
  Under s. 27(2) of the Act, it is provided that 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 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.  Here the amount of compensation determined is nearer to the amount of the valuation finally put in evidence by the constructing authority.  Therefore, costs, if any, can only be awarded to the respondent.
  The assessment for each side was made by a registered valuer.  The principal difference in the assessments involved the highest and best use of the site, having regard to the extent of the flood plain land within the site and the use which could be made of that land in complementing the development of the higher flood free land.  Before the resumption, the claimants' valuer assessed the highest and best use of the land for golf course purposes, club house facility and accommodation.  The respondent's valuer adopted a value based on the value of the site as a unit site with no particular regard being given to the flood plain area (more than likely that land would be transferred to the Council for public open space).  The Court held that a prudent purchaser/developer would be foolish to follow the course adopted by the respondent and adopted the value applied to the land by the claimants' valuer.  After the resumption, the respondent's valuer followed the approach taken before the resumption.  The value per unit site was depreciated for injurious affection.  No apparent regard was given to the effect the resumption may have upon any development of the flood plain land.  The assessment made by the claimants' valuer was based on the premise that the land was legally and physically severed by the resumption.  Thus, the potential in the land for golf course purposes was lost and timing of development for unit purposes affected.  Otherwise, values applied per unit site were of no great moment.  Notwithstanding the finding made by the Court that a physical and legal severance did not follow the resumption, the Court found that the effects of the resumption put such a scar on the land that the premium found to exist in the flood plain land before the resumption was not worth pursuing after the resumption. 
  The survey of the resumed land was effected in September, 1991.  Formal advice was given to the claimants by letter of the respondent dated 18th September, 1991, that physical access would be provided under the railway if the land remained in the one ownership.  The hearing of the matter commenced on 23rd September.  Discovery was made on that day.  In these circumstances it is my opinion that an enquiry into "whether it would be more relevant to enquire whether the conduct of the claimant, including his making of an exhorbitant claim, if he has made one, has been such as to force the authority; unreasonably and unnecessary, into litigation" (Moyes and Others v. Council of the City of Townsville (1979) 6 Q.L.C.R. p. 271 (L.A.C.) must include consideration being given to these factors.  The claimants have succeeded in receiving a substantial increase over the amount offered by the respondent.  In all the circumstances of the case, I have concluded that the application should be refused.
  Accordingly, I make no order as to costs.

Member of the Land Court