Brisbane City Council v Bortoli - [2012] QLAC 8

LAND APPEAL COURT OF QUEENSLAND

CITATION:

Brisbane City Council v Bortoli [2012] QLAC 8

PARTIES:

BRISBANE CITY COUNCIL
(appellant)

v

IGINO BORTOLI
(respondent)

FILE NO:

LAC001–12

DIVISION:

Land Appeal Court of Queensland

PROCEEDING:

Appeal from the Land Court

ORIGINATING COURT:

Land Court

DELIVERED ON:

5 December 2012

DELIVERED AT:

Brisbane

HEARING DATE:

5 April 2012

JUDGE:

Peter Lyons J, Mr PA Smith, Mr WL Cochrane

ORDER:

Appeal dismissed.

CATCHWORDS:

REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – COMPENSATION – ASSESSMENT – MARKET VALUE – HIGHEST AND BEST USE – COMPARABLE SALES – where, prior to resumption, the respondent owned two adjoining blocks of land – where under City Plan 2000 the lots were in the Character Residential Area, and in a Demolition Control Precinct – where the town planners engaged by the parties agreed that, as at December 2006, it was likely that the respondent would have approved a commercial or a mixed commercial/residential redevelopment of the lots – where the Land Court noted four redevelopment proposals, each of which was shown not to be economically feasible – where the Land Court accepted the land had the potential for a mixed use commercial development – where the Land Court related the land to sales evidence on that basis – where the Land Court relied on evidence of sales that occurred six months after the acquisition date – where access to the land was restricted – whether the Land Court made an adequate determination of the highest and best use of the land at the date of resumption – whether the Land Court failed to properly compare the land with land the subject of evidence of sales – whether the Land Court incorrectly applied evidence of three sales which occurred some months after the resumption – whether the Land Court failed to recognise the effect of traffic constraints affecting the land, in determining its value

REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – COMPENSATION – ASSESSMENT – MARKET VALUE – GENERALLY – where the land had previously been listed for sale on the internet for $670,000 in January 2005– where the listing category was Residential Home Sales – where no active marketing was undertaken – whether the Land Court failed to adequately take into account the listing of the land by the respondent at an earlier time

Acquisition of Land Act 1967 (Qld), s 20

De Ieso v The Commissioner of Highways (SA) (1981) 27 SASR 248, considered
ISPT Pty Ltd v Melbourne City Council [2008] VSCA 180, considered
Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 GRA 409, cited
Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426, cited
Spencer v Commonwealth (1907) 5 CLR 418, followed
Turner v Minister of Public Instruction (1956) 95 CLR 245, considered

COUNSEL:

M Hinson SC with A Skoien for the appellant
S Ure for the respondent

SOLICITORS:

Brisbane City Legal Practice for the appellant
Middletons for the respondent

Land which had been owned…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2012] QLAC 8
Decision Date: 5 December 2012

CaseChat Overview and Summary

Brisbane City Council sought the compulsory acquisition of land owned by Bortoli. The dispute was centred on the compensation for the land, specifically the assessment of its market value at the time of acquisition. The Land Court was tasked with determining the highest and best use of the land, comparing it with sales evidence, and assessing the impact of restricted access on the land's value. The Court of Appeal reviewed the Land Court's decisions on these matters.

The central legal issues were whether the Land Court correctly identified the highest and best use of the land, appropriately compared the land with sales evidence, and correctly applied post-acquisition sale evidence. Additionally, the Court had to determine if the Land Court sufficiently considered the impact of traffic constraints on the land's value, as well as an earlier listing of the land by Bortoli.

The Court of Appeal found that the Land Court adequately determined the highest and best use of the land as having potential for mixed-use commercial development. The Court considered the evidence of comparable sales, despite their occurrence post-acquisition, and recognised the impact of restricted access on the land's value. The earlier listing of the land was noted but deemed insufficient to alter the Land Court's overall assessment. Consequently, the appeal was dismissed.

The final orders of the Court of Appeal were that the appeal was dismissed, thereby upholding the Land Court's determination of compensation for the compulsory acquisition of Bortoli's land by Brisbane City Council.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Brisbane City Council v Bortoli [2012] QLAC 8
PARTIES:	BRISBANE CITY COUNCIL (appellant) v IGINO BORTOLI (respondent)
FILE NO:	LAC001–12
DIVISION:	Land Appeal Court of Queensland
PROCEEDING:	Appeal from the Land Court
ORIGINATING COURT:	Land Court
DELIVERED ON:	5 December 2012
DELIVERED AT:	Brisbane
HEARING DATE:	5 April 2012
JUDGE:	Peter Lyons J, Mr PA Smith, Mr WL Cochrane
ORDER:	Appeal dismissed.
CATCHWORDS:	REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – COMPENSATION – ASSESSMENT – MARKET VALUE – HIGHEST AND BEST USE – COMPARABLE SALES – where, prior to resumption, the respondent owned two adjoining blocks of land – where under City Plan 2000 the lots were in the Character Residential Area, and in a Demolition Control Precinct – where the town planners engaged by the parties agreed that, as at December 2006, it was likely that the respondent would have approved a commercial or a mixed commercial/residential redevelopment of the lots – where the Land Court noted four redevelopment proposals, each of which was shown not to be economically feasible – where the Land Court accepted the land had the potential for a mixed use commercial development – where the Land Court related the land to sales evidence on that basis – where the Land Court relied on evidence of sales that occurred six months after the acquisition date – where access to the land was restricted – whether the Land Court made an adequate determination of the highest and best use of the land at the date of resumption – whether the Land Court failed to properly compare the land with land the subject of evidence of sales – whether the Land Court incorrectly applied evidence of three sales which occurred some months after the resumption – whether the Land Court failed to recognise the effect of traffic constraints affecting the land, in determining its value REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – COMPENSATION – ASSESSMENT – MARKET VALUE – GENERALLY – where the land had previously been listed for sale on the internet for $670,000 in January 2005– where the listing category was Residential Home Sales – where no active marketing was undertaken – whether the Land Court failed to adequately take into account the listing of the land by the respondent at an earlier time Acquisition of Land Act 1967 (Qld), s 20 De Ieso v The Commissioner of Highways (SA) (1981) 27 SASR 248, considered ISPT Pty Ltd v Melbourne City Council [2008] VSCA 180, considered Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 GRA 409, cited Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426, cited Spencer v Commonwealth (1907) 5 CLR 418, followed Turner v Minister of Public Instruction (1956) 95 CLR 245, considered
COUNSEL:	M Hinson SC with A Skoien for the appellant S Ure for the respondent
SOLICITORS:	Brisbane City Legal Practice for the appellant Middletons for the respondent