Bryce v The Council of the Shire of Pine Rivers

[1989] QLC 16

[1989] QLC 16

 

  LAND COURT,

BRISBANE.

23rd November, 1989.

Re:Claim for Compensation

(A89-3)

William Keith Bryce
  - v -
  The Council of the Shire of Pine Rivers

J U D G M E N T

William Keith Bryce claims compensation from the Council of the Shire of Pine Rivers consequent upon the taking under the provisions of the Acquisition of Land Act 1967 - 1986 of land described as Subdivision 2 of Portion 2, County of Stanley, Parish of Warner, containing an area of 24.967 ha and being the whole of the land contained in Deed of Grant, Volume 5982, Folio 52. The land was taken for Cultural Centre (Buildings, Art Gallery, Library, Civic Centres, Museum, Places of Public Amusement or Public Resort, Public Halls, Public Meetings, Park and Recreation Grounds) purposes.
              Notice of resumption was published in the Government Gazette of 29th November, 1986 and this is the date at which compensation is to be determined.
              The amount finally claimed is the sum of $638,552.13 made up of the sum of $625,000 for the land and the sum of $13,552.13 by way of disturbance for costs incurred up to the date of lodgment of the claim in the Court for valuation, Town Planner, Engineers and Legal Fees.  The parties have agreed on the amount finally claimed by way of disturbance and I will include that sum in the final determination.
              The resumed land is an irregular shaped parcel located towards the southern entrance to the Pine Shire with a frontage of about 800 metres to the old Brisbane to Gympie Road (now referred to as the Brisbane/Woodford Road).  The rear boundary fronts the South Pine River over a meandering boundary of about 500 metres.  It is subject to an easement in favour of the Southern Electric Authority of Queensland for transmission line purposes traversing the land in a north-south direction.  A high tension overhead power line supported on timber poles is erected within this easement area.  An easement in favour of the Brisbane City Council for Pine River Dam purposes traverses the land in an east-west direction and a welded steel water main of about 1.25 metres diameter is located below ground level within the boundaries of this easement.  The subject land is generally low-lying and lies within the flow path of floods in this area.  It has been cleared to pasture and used over the years for the grazing of cattle.  It is in the notorious area of the Strathpine - Bald Hills Flats where traffic was frequently disrupted when waters severed the highway at this point.  In about 1976 a new divided highway was constructed in this area to overcome the traffic disabilities in flood time.  This new road was constructed at about a level of 6 metres and along the frontage of the subject land three (3) large box culverts have been inserted to take water across the old road under the new road onto the subject land.  Gympie Road at the frontage thus became a four (4) lane divided road with a wide median strip and carriageways of varying levels with the subject land fronting the south bound carriageway.  It is a limited access road at this frontage.  Access from the land varies with the contour of the adjacent land and the height of the road carriageway.  
              It is located to the south-east of the urban development of Strathpine.  On its eastern side across the river is the St. Paul's school and the residential development of Bald Hills.  Immediately to the east of the property to the river, north of the river and south of Gympie Road, are grazing lands on the river flats.  On elevated land adjacent to the north coast railway south of Gympie Road is a dwelling.  Towards Strathpine are Service Stations and various commercial developments which then extend northerly on both sides of Gympie Road towards the business centre of Strathpine.  The Shire Council Chambers are in Gympie Road adjacent to the railway station and the Westfield Shopping Centre to the north dominates the business centre.  The area to the south and south-west of the railway station along South Pine Road is a well established industrial locality.
              Stated briefly it is the case for the claimant that while the land was being used for grazing of cattle at the date of resumption that, despite the Rural Land "A" zoning its highest and best use would be for some form of urban land development.  Particulars of the suggested forms of development are referred to later in this judgment.  It is acknowledged that any development upon this land would require careful planning to ensure that the flood flow was not impeded.
              Evidence was given by Mr. George Pavlu, a Chartered Professional Engineer, who has had a lifetime experience in matters of hydrology and hydraulics.  His brief was to investigate whether he saw any unusual technical problems which might prevent the subject land being developed to its optimum potential.  Mr. Pavlu derived assistance from a hydrological investigation of the South Pine River commissioned by the Main Roads Department from Consulting Engineers John Wilson and Partners in November 1973 in which they calculated the flood gradients between Gympie Road and the confluence of the South Pine River with the North Pine River.  The findings were used by the Main Roads Department in the design of the south bound carriageway of Gympie Road which has already been referred to.  This report was published on 3rd January, 1975 and supplied information of the downstream and upstream limits of the calculated flood gradients as they affect the subject land.  He has listed in his report minimum and maximum flood levels at three points on the subject land taken in a 1 in 10 year, 1 in 25 year, 1 in 50 year and 1 in 100 year flood.  He has proceeded with the exercise adopting development levels which he considers reasonable.  For floor levels he had adopted 0.1 m above the level of the 1.100 year flood of R.L. 6.1.  For general reclamation a level to a 1.50 year flood which is R.L. 5.6.  He notes that to ensure surface drainage the reclaimed areas would have to be graded and the minimum levels would be applicable only at the lowest points and the average level would be about RL 5.75 for parking areas, playgrounds, etc. a level equal to a 1.10 year flood with a minimum 4.9 and an average RL 5.0. 
              In considering the whole parcel Mr. Pavlu was mindful of the constraints to  development by reclamation which would have to be considered.  Part of the areas are covered by the easements but he does not consider any major objections would be forthcoming from the South-east Queensland Electricity Board or the Brisbane City Council.  There are Main Roads Department culverts which are so large that it would appear impracticable on economic grounds to extend them.  The only reasonable solution would be to form open-cut outlets to allow the discharge from the culverts to flow through and around the reclaimed area towards the river.  He indicates on his development plan a location for such outlets.  He assumes that permission would be granted by the Main Roads Department for only one entrance from Gympie Road which would necessitate the construction of an internal service road located generally parallel to Gympie Road. Where this service road would cross the culvert outlets, culverts of the same waterway area as those under Gympie Road would have to be provided.  He comments on the supply of sewerage and water to the subject land and does not anticipate any difficulties or excessive cost in supplying these services. 
              Mr. Pavlu had access to a contour plan associated with the sewerage scheme of the respondent Council which indicated to him some part of the subject land was at RL 7.  His plan envisages development of about 5 hectares on the higher land of which over 3 hectares is naturally higher than the 1 in 50 year flood level.  Behind this area he envisages that in an area between Easement "B" and the river some 5 hectares could be reclaimed, 4 hectares at RL 5.75 and 1 hectare at RL 5.  Mr. Pavlu estimates that some 55,000 cu metres of fill would be required for Part 1 of his project and 175,000 cu metres for Part 2 for a total of 230,000 cu metres at a cost of $723,400.  The fill would be obtained on the land itself.  He concludes that his proposal would have minimal effect on the overall flooding of the area because the area of some 7 hectares to be filled is small when compared with the area of the adjoining flood plain.  While he has not seen any plans which the respondent Council has for the development of the site for a Cultural Centre he believes it is reasonable to assume that a perusal of the concept plan which has been published would suggest that the respondent's development will have a similar effect on the flood pattern of the South Pine River as the proposed development for the claimant.
              In cross-examination he was asked about the levels which he has adopted from the sewerage plan which he has sighted.  He acknowledges that no ground survey was done to prepare that plan as far as his investigations revealed.  He was shown a sketch showing spot levels taken in 1987 which suggests that the highest point on the ridge would be a little under RL5 as against the RL7 which he has adopted relying on the earlier sewerage map.  In the result he says that his original information was unreliable in light of the better evidence now available but he does not concede that the whole of the land would be inundated in any flood over RL4.880.  He concedes that it would be necessary to carry out very detailed calculations to satisfy the Local Authority before excavating and filling could be undertaken in this flood prone land.  He agrees that there would be requirements of the Main Roads Department for traffic control and costs involved for traffic islands and signals particularly if access is required in both directions.  In re-examination he says that, even accepting the amended levels as disclosed by the spot level plan, there would not be a great deal of additional filling required.  There would be a slight increase in the quantities in the higher section and no difference in his second filled area.
              The critical matter for me to determine is the highest and best use for the subject land at the date of resumption.  It is necessary for me to consider the constraints which might exist under the relevant Town Plan.  This problem has been considered by the parties through the evidence of Mr. Victor G. Feros and John R. Brannock who are both Town Planning Consultants of considerable experience. 
              At the date of resumption the land was zoned Rural Land "A" under the Town Planning Scheme of the respondent Council gazetted on 11th February, 1971.  The 1971 scheme contained no specific statements of intent for the zone and reference to the previous subdivision bylaws did not clarify the status of lands included in this zone nor was there any strategic plan.   Permitted and Permissable uses within the Rural Land "A" zone included:-
"Permitted (as-of-right) Uses:
Agriculture;  Forestry Dwelling-house;  Home Occupations and Domestic Industries;  Public Utilities;  Sports and Recreation;  Estate Sales Office.

Permissible Uses (with Council Consent):

Catering Industry;  Commercial Premises;  Extractive Industry;  Flats, Boarding-Houses and Serviced Rooms;  General Business;  Heavy Industry;  Hospital;  Hotel;  Indoor Entertainment;  Institutions;  Kennels;  Light Industry;  Lot Feeding;  Manufacture Shop; Motels;  Noxious and Hazardous Industry;  Outdoor Entertainment;  Piggeries;  Poultry Farm;  Refreshment Service;  Service Industry;  Service Station;  Shops;  Special Purposes;  Stables."
              The prohibited uses included Abrasive Blasting - unenclosed and crematoria.    Under the new Town Plan of 14th May, 1988 the subject land is included in the Special Facilities (Place of Assembly, Place of Entertainment, Restaurant, Park, Outdoor Recreation Grounds, Intensive Recreation, Civic Centre, Cultural Centre and Local Government Purposes) zone.  The intent of the Special Facility zone is:-

"The Special Facilities Zone is intended to be used to accommodate a particular form of development on a particular site, where such development is considered in the circumstances to be desirable, but where the inclusion of the land within any of the other zones could enable an undesirable form of development or a wider range of uses than that being considered.

It may also be used to permit combinations of uses which might not otherwise be allowed under the Scheme.

Permitted uses within the zone include:-

Local Utilities
  Park

Permitted uses (subject to conditions) include:

Purposes which are indicated in red lettering on the scheme maps and where a plan of development exists, which are also in accordance with that plan.

Permissible uses (with the consent of Council) include:

Any purpose which, in the opinion of Council is allied to and compatible with the particular permitted purpose.

All other uses are prohibited."

It would appear from the evidence that the subject land was nominated for this zonal designation under the draft Town Planning Scheme formulated between June 1986 and January 1987 advertised in April/May 1987.
              Reference during the hearing has been made to steps taken by the respondent Council prior to resumption so far as this land is concerned.  At a meeting of the Community and Environment Committee of the Council held on 23rd January, 1986 it was recommended "that the Shire Clerk take the necessary action to have Council Officers make preliminary investigations on the suitability of sites for the construction of a Cultural Centre."  On 20th February, 1986 this Committee recommended that the subject land be acquired for this purpose and it was resolved that the Shire Clerk confer with Mr. Bryce in an endeavour to purchase the land. In the event that such discussions were unsuccessful in fifty (50) days, then the Council should proceed with resumption.  The Shire Clerk wrote to Mr. Bryce on 6th March, 1986 in the following vain:-

"At its Meeting held on the 3rd March, Council resolved to initiate negotiations for the acquisition of a site for a Cultural Centre.  In this regard I have been directed to invite you to attend discussions concerning the possibility of purchasing land in your ownership, namely the whole or part of Subdivision 2, Portion 2, County of Stanley, Parish of Warner.

Following the consideration of reports on the possible siting of the Cultural Centre in the Strathpine area and the visit by Councillors and Council Officers to Cultural Centres in other Local Authorities, it was felt that the best possible site for such a building in this Shire would be on the abovementioned land.  It was considered that a site should include sufficient land to fully landscape the building in an appropriate manner and style and the area of the site should allow for outdoor activities associated with the Centre.  The site should also be adjacent to or within easy walking distance of the Shire's Administrative Centre.  Other considerations which were considered important, were that the site should be prominently positioned and should in some way be visibly and physically linked to the river system after which the Shire is named, have access to public transportation and be located near the arterial road network and generally located near the centre of the existing and future urban areas.  Taking all these factors into consideration, it was considered that the land met most if not all of this criteria, and as the land forms part of the entrance to the Shire, it was Council's opinion that the matter of construction of a Cultural Centre should be pursued with this site in mind.

It would be appreciated if you could contact the undersigned to arrange a meeting with Council Officers regarding a proposal to purchase land.  In this regard it is suggested that a meeting on the afternoon of the 13th March would be most suitable if convenient to yourself."

The Notice of Intention to resume the land issued on 19th May, 1986 followed by the proclamation of the resumption on 29th November, 1986. 
              Mr. Feros in his written report and in his evidence before the Court sets out in detail the matters which he has taken into consideration in reaching his conclusion on the highest and best use for the subject land.  He believes that, within the Shire's urban fabric, the subject land is ideally located to provide for uses which require highway frontage, good access and visibility;  are either support facilities to or compatible with and reinforce established/expanding uses in the Strathpine Business area;  take advantage of site characteristics and enhance the aesthetics associated with the gateway to the Shire. 
              Mr. Feros sets out the opportunities and constraints which he identifies for this land.  He says the opportunities for the development of the subject land include:-

"(a)Location at the south-eastern portal to the Shire,

(b)             High levels of visibility from Gympie Road and surrounding proposed/existing land uses,

(c)A size facilitating comprehensive, integrated development.

(d)Location at the southern extent of the Strathpine Business area reinforcing the site's attractiveness for highway frontage uses and uses supporting or reflecting those in the adjoining business area,

(e)Extensive frontage to major intra-city arterial road link,

(f)Proximity to a variety of forms of public transport,

(g)River frontage,

(h)Existing site configuration and on-site vegetation,

(i)Current significant sand/gravel reserves located within the flood plain."

He identifies the constraints as:-

"(a)Low lying nature of the land and position within the South Pine River flood plain,

(b)Central, east-west depression providing a natural drainage line discharging into the river from the local urban surrounds,

(c)Secondary drainage line along site's southern boundary,

(d)Steep slopes from road level to the existing ground level at the eastern/south-eastern extent of the site and associated problems of access from both south and north-bound lanes off Gympie Road,

(e)Electricity transmission corridor traversing north-south line through centre of site,

(f)Brisbane City Council's main northern water supply lines (and easement) running east-west through the site,

(g)Erosion prone river banks,

(h)Increasing traffic capacity constraints on Gympie Road.

In addition to the opportunities and constraints identified above, any determination of appropriate uses of the site must also include consideration of such matters as:-

(a)existing land use patterns in the general vicinity of the site,

(b)existing zoning and statutory requirements referring to the site and the surrounding area, and

(c)anticipated changes to either the land use or zoning pattern which may influence the use of the subject land."

Mr. Feros concludes that the land would not be suitable for residential, industrial premises or for high intensity retail/commercial uses.  He says it is suitable for lower intensity uses and believes that development of the subject land would most appropriately comprise any of the following:-

"(a)retail warehouse/showroom facilities,

(b)office/business premises, (Council studies indicate potential for expansion of (a) and (b) type facilities within the Strathpine business area "frame", particularly in the light of the proposed Kremzow Road extension),

(c)restaurant/tavern facilities,

(d)tourism accommodation,

(e)medical/educational institutions,

(f)indoor sports/recreation/entertainment centres.

In relation to the above uses, such facilities should be located on those parts of the site which could be filled above the designated flood level, in accordance with sound engineering requirements.  At the relevant date, there were no statutory or policy controls known to the writer preventing placement of fill on the subject land.  Filling of parts of the site to a reasonable level such that it would not be detrimental to local flooding is appropriate to achieve the development potential of the site.

(g)recreational facilities comprising picnic, informal sporting/recreational facilities, associated amenities, and appropriate landings and structures for water based recreational crafts and activities.  Such facilities would be located on those parts of the site generally retained at their existing levels.

As part of the development process for the subject site, documented sand and gravel reserves thereon should be investigated in the light of current and future circumstances, to determine their suitability for extraction, particularly as such reserves conform with river flats and could form part of recreation and open space areas in the form of post extractive lakes.

In the writer's opinion, the desirable characteristics of the subject site in terms of the location, highway frontage, local urban fabric, etc., far outweigh any constraint on development which may be imposed by the low-lying nature of the site.

If the site can be totally, or partially filled to an appropriate level in accordance with sound engineering considerations, then it would be in the best interests of the community for the uses assessed as appropriate for the subject site to have been considered."

Mr. Feros says that under the Town Plan existing at the date of resumption these forms of development were permissible with Council consent.  He says that the draft scheme formulated between June 1986 and January 1987 reflected the Council's intentions for the site and recognised the potential of the land for supporting a mixture of low intensity suburban uses and that this philosophy was further reflected in the draft Strathpine - Lawnton Development Control Plan formulated between March and August 1986.  He believes that the uses proposed by the Council in its concept for the site are considered to be similar in nature and intensity to those which he considers are appropriate.  He is of the opinion that prior to the date of resumption the subject land would have received approval on an application for establishment of one of or a mixture of the uses which he considers appropriate.
              Valuation evidence was given by Valuer Mr. R.E. Wenck who has sought the opinions of experts in Town Planning and Engineering to assist him in reaching a conclusion on the highest and best use for the subject land.  In considering the highest and best use he says in his written report:-

"The land is strategically located at the south eastern eastbound exit of Strathpine and immediately adjacent to a planned major interchange, designed to replace the existing congested South Pine Road/Gympie Road junction.  It enjoys excellent exposure to high density traffic and will have future identification with the interchange system.

Flood free land in this location would be ideally suited for an urban orientated zoning.

The subject property has flood free lands together with land capable of being reclaimed for development."

He has proceeded on the advice of the experts that it would be possible to fill the land as suggested by Mr. Pavlu and that consent would be forthcoming for the various developments (a) to (g) proposed by Mr. Feros and says that in terms of its market value its potential was undoubtedly for use higher than those as-of-right uses permitted by its                zoning at the relevant date.  The use planned by the resuming authority strongly supports the view that the potential of the property was at the relevant date urban rather than rural orientated.  In reaching his opinion of an appropriate value he says matters which were relevant to the market value include:-

"*an area of about 3.5 hectares of flood free land

*an area of at least 5 hectares capable of building development with relatively minor filling

*large further areas external to the River floodpath, but within the floodplain, capable of filling development, but at significant cost on a project basis

*on-site filling material available with potential for consequent excavation to provide lake development complementary to the water orientation of the site, provided by

*South Pine River frontage

*arterial road position at a proposed interchange location

*flexible development permitted by size of site

*adjacency to urban development."

Mr. Wenck says that "it is not uncommon in cases such as the subject where the potential, whilst not finite, is considered clearly greater than existing zoning, and a relatively large area of urban orientated land with physical constraints is involved, the evidence of strictly comparable sales is non existent." 
              As a basis of valuation he has had regard to some sales which he thinks are of assistance.  The first sale is a sale from Lang to Balcombe Holdings Pty. Ltd. of a 19.936 ha parcel of land within the boundaries of the City of Brisbane and zoned "Future Urban".  The sale occurred on 19th July, 1985 for $330,000.  It was an unconditional contract.  It was improved with a semi-modern weatherboard and terra cotta tiled low-set dwelling in fair condition and a small cottage.  Both buildings continued to be used for residential purposes.  He says that this sale shows $16,552 per hectare improved or about $15,000 per hectare as land.  In other words he attributes a value of about $30,000 to the improvements included in the sale.  Mr. Wenck says the property is bounded by Roghan Road to the south with Carseldine Road to the west, Millar Road to the north and the unformed Ridley Road to the east.  He says there is fair elevation on the south-western quarter, gentle slopes to depression and low-lying land to the eastern and northern sector.  It is now developed as a Golf Driving Range with a nine hole practice course still under construction.  It is encumbered with a wide electricity easement which traverses the property near the northern boundary.  While partially low-lying it is not affected by the flood disability of the subject land.  It is readily assessable, but does not enjoy main road exposure.  He is of the opinion that the purchase price appears low.
              His next sale is a sale from Eagers Holdings Ltd. to Aramist Pty. Ltd. of an 8.535  ha parcel of "Future Urban" zoned land within the area of Brisbane City on 4th September, 1987 for $400,000.  It has a wide electricity easement (the same transmission line as in his first sale) which traverses the northern section of the property.  It is an irregular, near triangular shaped site bounded by Gympie Road to the west, Linkfield Road to the north and the Bruce Highway to the east.  It is an unconditional sale purchased by a person who perceived a commercial orientated potential.  It has frontage to the Bruce Highway but no direct highway access.  It has good accessibility off Gympie Road and Linkfield Road.  He says this sales shows $46,865 per hectare which he considers reflects highway exposure location and justifies his conclusion that his first sale was a low sale as it is nearly opposite this sale to the west.
              The third sale is a sale from Leitch to S.W. and G.K. Hunter as trustees for Evangelist Literature Enterprise on 9th December, 1986 of a 17.2 ha parcel of land zoned "Heavy Industrial" for $638,000.  It is situated on the southern frontage of the South Pine Road and the western frontage of the unformed Souths Crossing Road.  The South Pine road frontage section of the property estimated to contain about 10.2 ha.  It is mainly sound land with minor low-lying depressions.  Then a steep bank falls away to flats and flood plain of the South Pine River.  A large partly renovated colonial style house, cottage, large barn and yards, etc. are sited towards the rear of the sound land above the flood plain.  It continues to be used for Rural Residential purposes in an area of large sites with industrial influence.  Mr. Wenck says that, if it is treated as industrial land as zoned, the improvements add no value and the sale shows $37,093 per hectare.  With continued use of the improvements for other than industrial purposes the sale shows a value of about $33,600 per hectare.  He does a further exercise on the basis of excision of a flood free site.  He suggests by one method a rate of $21,097 per hectare for the flood plain land and his other exercise shows $25,571 per hectare.  He comments that, while this is zoned "Heavy Industrial" and has proportionately more flood-free land available for development than the resumed land, the location of the resumed land is superior and its development potential was such as to provide equal if not superior overall market value. 
              His last sale is a sale from England to Golding as trustees for the Christian Faith Ministries.  This was a sale on 6th May, 1987 of a 5.733 ha parcel of "Heavy Industrial" zoned land for $160,000.  Mr. Wenck says this is a long narrow rectangular shaped site on the southern frontage of South Pine Road and has about 1.7 hectares with irregular shape to the rear which is flood free and then steep banks fall away to flood plain land.  The sale included the improvements of an old dairy with an old dwelling which has been subsequently renovated as a Caretaker's Residence with new Church buildings constructed on the frontage land.  He analyses the sale to show a land content of about $25,000 per hectare for Church development.  He says that the subject land had potential for similar but larger scale institutional type development in a superior position and significantly more pleasant surroundings.  Based on these sales he arrives at his valuation of $25,000 per hectare. 
              In evidence in chief Mr. Wenck was asked to comment on the sales which have been listed in the valuation report on behalf of the respondent prepared by Mr. P.E. Sandhoff.  The first sale used by Mr. Sandhoff is the Eagers/Aramist sale which he has used.  He notes that Mr. Sandhoff considers that this is superior to the subject land in location and topography.  He says that Mr. Sandhoff's valuation of the subject land comes to about $7,500 per hectare and he cannot see how this value can be adopted from a sale which shows $46,865 per hectare.  He acknowledges that this is a smaller parcel of land but there were not a lot of large sales in the locality.  He believes that the subject land provided far greater potential for wider uses than this sale. 
              The next sale he comments upon is the sale from Johns to Rimmington of a 2.269 ha parcel of land on 24th July, 1987 for $48,000.  This is a homesite at 2104 Gympie Road, Bald Hills.  He agrees with the report by Mr. Sandhoff that the majority of this site is a flood plain.  He believes that while it may have a Gympie Road address its access is gained by an easement which runs down beside the School of Arts.  He believes it is no basis for valuing property with commercial development potential, but it may be of some assistance in valuing the flood plain. 
              The third sale is a sale on 22nd June, 1987 from Aquila Steel Limited to Vynian Pty. Ltd. of a 42.14 ha parcel of land zoned "Heavy Industry" for $900,000.  The sale property was improved with an industrial building clad with metal deck.  Mr. Wenck does not know the property in any detail.  He was aware of the sale.  He says is was a balance area of an original subdivision without highway exposure except for a very small frontage at one point.  It is to the west of the rail line to Strathpine.  He does not believe it has a commercial type atmosphere about it.  It is a large parcel of "Heavy Industry" zoned land and has been used as part of a steel fabrication site and its best potential is for industrial use.  He agrees that this sale has its main frontage to Leitchs Road with frontage to Kremzow Road to the south.  He does not know what has happened to the land since purchase but he would assume it would be for a development aligned to "Heavy Industrial" use.  He was unable to comment on the suggestion that part of the land on the north has received approval for the construction of Town Houses.  He agrees that it adjoins a residential development on its north.
              Mr. Wenck says that he looked at the subject land as having about 3.5 ha of sound land which was flood free.  He has heard the evidence of the levels which suggest much of this could be inundated, but he accepts the information supplied by the owner of the property that it has never been completely inundated and it has never been necessary to remove stock from the land during any flood, but even if it was covered by water it would have been of very shallow depth.  No cattle have been lost by drowning.  In any event it would not have any significant affect upon his overall valuation.  He does not agree that there is a major problem regarding access to the subject.  He acknowledges that the subject land fronts a limited access road, but his enquiries indicate that one access point would be provided.  He comments that a conditional contract was entered into for the subject land with Peter Kurtz after the Notice of Intention to Resume had issued.  No application for a rezoning was made and the matter lapsed.
              The claimant Mr. William K. Bryce says he acquired the subject land in 1947 to add to other lands used for dairy farming.  He continued his dairying operations until 1976.  Since then the land has been used for grazing cattle.  He viewed the land as having a potential for sale because he perceived that after the proposed flood free road was built it would ensure him that the land could be filled and made more useful for some development work.  He says that the first major flood after he acquired the land was in 1954, but there was a considerable area of land not inundated.  This flood was smaller than the 1974 flood and on that occasion he would estimate between 4 and 5 hectares of the land were not covered.  In 1974 he would estimate that about 1.5 ha was not inundated, but it is very hard to make an estimate of a small area when it is surrounded by flood water.  In the 1988 flood there would be a little more land not inundated.  He says that he has from time to time over the past few years received enquiries to purchase this land.
              In cross-examination Mr. Bryce says that flood waters entered the lands in April and June 1988 and there was a further flood in 1989.  He says the 1989 flood was higher on the opposite side of the new highway but not on the subject land because water was not allowed to get through because of the obstruction in the box culverts.  It was not as high as the 1974 flood.  It was put to him that the whole of the land was flooded in 1989, but he does not agree.  He agrees that every ten years or so, averaging it out over the period that he has owned the land, it has been flooded but he has never seen all of the land covered at any time.
              For the respondent evidence was given by Mr. Brian J. Richards a Consulting Engineer with a particular interest in the fields of water supply, hydrology and hydraulics.  Since 1958 his firm has been engaged from time to time by the respondent Council as Consulting Engineers.  In 1974 his firm undertook a major investigation of flooding in this area for the Main Roads Department and he was directly involved.  He was asked to comment on the suggestion here that the construction in 1978 on the elevated section of highway abutting the subject land had decreased the flooding on the subject land.  Mr. Richards says these works have had no material effect on the extent of flooding of the subject land.  The flood levels on land downstream from the road are defined by events downstream of the particular parcel itself and not by events upstream.  In hydraulic terms it is called a sub-critical flow and the water levels under sub-critical flow regime are determined by events downstream.  The water levels upstream of the road are affected.                 To enable him to express an opinion on the flood levels on the subject land he obtained information from the Engineering Department of the respondent Council.  He was supplied with information as to the maximum height of flood waters in the general area which height was reached at 16:00 hours on 2nd April, 1989.  He was also supplied with a copy of a drawing showing the highest natural surface levels on the subject land as identified by Mr. Ian Small, the Council Surveyor in an exercise undertaken in July 1987.  The levels show that the highest part of the subject land is RL 4.88 and that the flood level on the downstream side of the road was RL 4.94.  This would indicate to him that the whole of the land was inundated.  He comments that there is a lot of high vegetation on the subject land and it may be that a person viewing the flooding would be left with the impression that there was land out of water because much of the vegetation would in fact be above the flood level. 
              Mr. Richards says that protracted negotiations have been going on between Engineers of the Main Roads Department, the Engineering Department of the respondent Council and his own firm to arrange for access to this land.  There was already a project in hand for a major intersection with the new Centenary Way which the Council is about to commence constructing which would have a three way signalised intersection.  Agreement has been reached to convert this system to a four way signalised intersection to provide a reasonable and acceptable engineering design to have access to the site. (Mr. Pavlu agrees in his evidence that this is the practical solution to the problem of access.)  Mr. Richards was asked of the procedure to connect the higher land to the road, but he says that this is not a great problem.  They are presently building from the level of the road at RL 6 down a slight slope to RL 4.7 which will then blend nicely onto the ridge.  This is being done with some filling. 
              Mr. Richards says it is not desirable to develop flood plain land from an engineering point of view as all such developments have an affect upon the flood water levels.  While the increased flooding on a particular development might be small it can result in an increased water level upstream.  He does not believe that there has been much filling of flood plains done within this Shire. 
              Since acquisition his firm has assisted the architects in the design of a one pole observation building beside the river and a walk way into the mangroves on the subject land.  He believes that both of these projects have been built.  They have given no advice as yet on any major development.  He is of the opinion that there are two ways to develop the land.  Structures could be constructed on posts with floor levels above flood level or alternatively filled platforms could be built and the structures placed on these filled platforms.  In either case it is more expensive than building on flood free land.  He has no argument with Mr. Pavlu on the possible cost of the proposed filling.  He says that the additional cost of building and concrete sheeting of the channels to take the flow coming through the culverts as proposed by Mr. Pavlu would be an expensive exercise. 
              He has seen the conceptual plan prepared by landscape architects for a Cultural Centre complex on the site.  He has not been asked by the Council to comment on this plan, but in cross-examination he says that he would not agree with placing an amphitheatre in the position suggested in that plan as it is on the main flow path of the flood water but otherwise, if the proposal was sensibly handled, an attractive development could be established.
              He was asked to comment on the suggestion by Mr. Pavlu that an area of about 3.5 ha close to the road could be utilised with minimal filling.  He believes that approval of the local authority could be obtained for such a suggestion and the filling of this amount of land would only result in a small increase in water level but he does not agree that the filling of the balance of the land suggested by Mr. Pavlu would meet approval as this would have a much higher effect on flood levels than will occur with the filling on the higher part of the land.  Mr. Richards expresses the opinion that, from an engineering point of view, it would take very sensitive handling to make this Cultural Centre successful on the subject land as the site is flood prone and will require good maintenance to achieve and maintain a valued public amenity.

              Brief evidence was given by Mr. Christopher J. Nilon, Surveyor in the employ of the respondent Council who tenders to the Court a report concerning the measurement of flood levels which he carried out on 3rd April, 1989 when looking for indications of how high the flood water had risen on the previous day which was a Sunday.  He cannot express an opinion whether all of the subject land was inundated at that time.  He also tenders a copy of a survey undertaken by his predecessor showing spot levels upon the subject land.
              Valuation evidence was given by Mr. P.E. Sandhoff.  He sees the subject land as being relatively low-lying but prominently located acreage with frontage to the Brisbane/Woodford Road which is a divided sub-arterial road on two distinct levels linking the residential and commercial areas of the Pine Shire with Brisbane.  Essential services available to the property include Water, Electricity, Sewerage and Telephone and most amenities including schools, shops and railway transport are in reasonable proximity.  The land has been used for grazing purposes for many years.  His enquiries and personal observations reveal almost complete inundation of the land during the 1974 flood and frequent flooding of a substantial nature of most of the land during periods of heavy rainfall.  In effect he says the land is located within the flood plain of the South Pine River.  In dealing with his basis of valuation he says:-

"Value has been assessed on the basis of the present use to which the land is put with an increment allowed for the potentiality of the land in the eyes of the acquiring Authority.  Reference has been made to sales of comparable property in accordance with the schedule annexed.

We have noted comments of the Privy Council in the Raja case in which is was held that where an acquiring Authority was the only possible purchaser of a potentiality associated with the land the existence of the acquiring Authority as a purchaser must be considered when assessing the value of that land.  The potential we note with respect to this land is as a gateway precinct to the Pine River Shire providing park land and public amenities in a prominent location for the residents of that Shire.  We consider that the valuation of the land must include an increment for this factor.

VALUATION:

We submit our assessment of the current fair market value of the property described herein at $185,000.00 as at 29th November 1986."

The sales referred to by Mr. Sandhoff are listed in his written valuation.  His first sale is the sale of the Eagers land at 1925 Gympie Road, Bald Hills which is also used by Mr. Wenck where 8.535 ha sold on 4th September, 1987 for $400,000.  His comments on this sale are:-

"Reasonably elevated vacant acreage with extensive exposure to Bruce Highway and Excellent access from Gympie Road -subject to power line easement.  Considered superior to subject in location and topography.  Indicates $46,865.00 per hectare."

His second sale is a sale of a homesite of 2.269 ha from Johns to Rimmington on 24th July, 1987 for $48,000.  He comments that this is a vacant lot with an elevated homesite.  The majority of the site is flood plain.  The sale indicates a homesite value.  His third sale occurred on 22nd June, 1987 which is a sale from Aquila Steel to Vynian of 42.14 ha for $900,000.  His comments on this sale read -

"Reasonably elevated acreage with extensive road frontages.  "Heavy Industry" zoning improved with industrial building clad with metal deck - floor area said to be 2668 square metres.

Deduced land value is $15,206 per hectare.  Considered superior in topography and equally well located."

In his evidence in chief Mr. Sandhoff says that he has proceeded with the valuation on the assumption that the whole of the land falls within the flood plain of the South Pine River and this is a severe detriment to its value.  He acknowledges that drainage and filling works could be undertaken but it remains a matter whether such works would result in a viable proposition.  In reaching his conclusion on an appropriate value he thought it only fair that the local authority should pay something more than just pure rural value for a piece of land that is quite well exposed.
              Mr. Sandhoff says that there are really no comparable sales.  What he has endeavoured to do is to present some sales which indicate a bottom line and a top line and then rely on his expertise to arrive at an appropriate value.  He says that although his sale by Aquila to Vynian is of land zoned "Heavy Industry" approval has been given since the purchase for the construction of 400 Town Houses on the northern portion of this land which is the most elevated part of the sale land and adjoins the existing residential development.  The sale helps to endeavour to assess the future potential of the subject land.  He believes that any potential purchaser of the subject land would approach it only on a conditional contract.  Until a purchaser had established the viability of a proposal he does not believe he would contemplate purchasing the subject land. 
              He was asked to comment on the suggested uses for which the land could be put on the suggestion of Mr. Feros and adopted by Mr. Wenck in his valuation.  He says that while the major feature for the subject land in the case for the claimant is its prominence to passing traffic he says it is prominent from the east bound lane but driving south on the low road this is not a feature.  He gives reasons why he considers the various suggestions of developing the land would not be practical or attractive to a purchaser except for recreational facilities but he does not think that a purchaser for this proposal would pay a large purchase price.  In fact he believes the only possible purchaser who could afford to purchase it for that use is the Local Authority. 
              In February 1987 when he was instructed to do this valuation he was not aware of the investigation of the Community and Environment Committee of the Council to select a site for the proposal now planned for the subject land.  He was not aware of the Committee recommendation particularly the comment in the recommendation which reads:-

"The following recommendations are made as Council is of the opinion that the site selected is the most suitable for the construction of a Cultural Centre to service Pine Rivers Shire.  It is considered necessary to acquire the site immediately to protect the area for this use."

He is unable to comment whether Council was of the opinion that there could be other purchasers of the land.  He says that he still is of the opinion that the Local Authority was the only possible purchaser, although he concedes that it is probably always possible to find another purchaser, but in this particular instance he believes that this would be somewhat more remote in time.  As I understand his evidence he sees this land as a large site which, under its zoning cannot be subdivided, as one rural homesite and he makes his comparison with the Rimmington purchase for $48,000.  That site has about 10% which is flood free but in a direct comparison with the subject land, disregarding the fact that the subject land has exposure to a highway, he would value the subject land at $95,000.  If this parcel was not on a main road it would have no potential because it floods so severely.  But, because of the existence of the road and because he believes that the Local Authority is the only possible user, he has added a further $95,000 for its potential for use by the Council for some sort of recreational activities.  He is of the opinion that the highest and best use for the land would be for the use suggested for the acquiring authority.  He says that he has not considered his valuation on a rate per hectare when comparing the sales.  His homesite sale is the sale of a site and while the subject land is substantially larger he also sees it as a site.  He was asked about the sale used by Mr. Wenck for the land where the Golf Sporting Complex is being developed but he says that the subject land is not suitable for this purpose on a commercial basis because it would flood.  He acknowledges that for most of the time it could be used but after every flooding it would be necessary to clean the land up and repair the damage.  He concedes that perhaps the potential of the land so far as recreation is concerned is not limited to the Local Authority, but he adheres to his view that no commercial operator would build here when he could build a complex somewhere more suitable.  Commenting on Mr. Pavlu's exercise he does not agree that once the land was filled there are enormous benefits for a development.  He gave evidence of the lack of demand in buildings in the fringe of the Strathpine main centre with vacancies in shops and a lowering of asking rentals.
              Mr. John R. Brannock, the Town Planning Consultant gave evidence of the conclusions which he has reached as to the possibility of the claimant obtaining the consent of the Local Authority to use the land for the development of the various types suggested in the case for the claimant here.  He is of opinion that an application in respect of consent for development as suggested in (a) to (f) of the proposals by Mr. Feros would have been refused.  He said that the Council would have to treat each application on its own merit, but for various reasons consent would not have been forthcoming.  He acknowledges that there is a right of appeal to the Local Government Court, but in his opinion, such an appeal would not have succeeded. 
              In his written report Mr. Brannock sets out zoning under the 1988 Town Plan and the intent of the "Special Facility" zone.  He then refers to the 1988 Strategic Plan and sets out the objectives of the Strategic Plan for two (2) areas of special use.  There is also the Strathpine/Lawnton Development Control Plan of 1988 and he makes reference to parts of the Development Control Plan dealing with the subject land particularly to Section 3.9.4 of Part B of the Plan which summarises the conclusions and recommendations of the plan.  The preferred option for the subject land (identified as Precinct "L") is:-

"The proposed Cultural Centre would be the main land use in this precinct, with associated landscaping, recreation and open space areas."

He acknowledges that under the Town Plan existing at the date of resumption a wide range of uses was permissible with the consent of Council for this land.  Approval of any such uses would be dependent upon the specific interpretation of Council policy (formal, and/or informal) relevant to the specific locality.  At the date of resumption such policy would have comprised to a significant extent the Draft Town Planning Scheme and in particular the Draft Strathpine/Lawnton Development Control Plan.  These draft documents were significantly advanced at the time of resumption to provide relevant guidance in determination of development applications.  He sets out at length in his written report why he considers the suggested uses to be made of this land would not receive consent.  He says that Council policy as early as 6th June, 1986 was to restrict development along the Strathpine flats and to provide a southern edge to the business district at Moss Street.  In the assessment of applications for development after this date it would have been prudent and good Town Planning practice to adhere to these statements. 
              In his evidence in chief he deals with the problems relating to access.  From his experience of dealing with the Main Roads Department he believes there would be great difficulty in obtaining the approval of the Main Roads Department for access to any substantial development.  He believes that only one access point to the site would be approved but consideration would have to be given to the actual turn-outs from the highway and egress back to the highway and the question of access would have to be resolved as a condition of approval for any consent application.  It would also be necessary to satisfy the Council on the question of filling prior to approval of a building application.    In cross-examination he was asked his opinion of the views expressed by the Council as to the suitability of this land as expressed in the letter to the claimant (Exhibit 7).  He agrees that, so far as visibility and prominence is concerned, this land has the attributes of a commercial site, but the overriding feature of the site is its low-lying nature and the inherent flooding problems. 
              Mr. Brannock sees a difference between approval of the Main Roads Department for an access to a Cultural Centre compared with the approach of the Department for a commercial development which was open during all retail hours.  He envisages a Cultural Centre would not attract a great flow of people during those hours. 
              In cross-examination he agrees that the Courts have considered the criteria that should be applied to development applications as opposed to rezoning applications and have long recognised that in the case of rezoning applications one scrutinises the areas of need to a much greater extent and the question of viability on a consent application should not lead to a rejection of the application on that ground alone.  He agrees that there was no planning principle to be found in the 1971 Town Planning Scheme concerning the question of filling of a flood plain or building in the flood plain and he says it is one of the principles that is so widely held that it goes without saying.  He agrees that by at least March 1986 the Local Authority had earmarked this land as the site for its cultural centre and the 1988 Town Planning Scheme and the Strathpine/Lawnton Development Control Plan and the Strategic Plan all recognise this.  He agrees that the 1988 Town Planning documents incorporate the Local Authority's Plans with respect to the resumption of this site and as a matter of principle any fetter that exists on the development of this site as a result of this proposal should be excluded from consideration in determining compensation.  It is his opinion that this land should really remain "Open Space".  He does not entirely agree with the proposal to construct a Cultural Centre on the land but he notes that the proposal is that it should be placed on piers and it would only occupy a very small part of the overall area.  It is certainly not as significant as a substantial commercial development.
              The gap between the claim and the offer in this matter is indeed wide because of the conflicting opinions of the highest and best use for the land.  The determination must satisfy the test expressed in Spencer -v- The Commonwealth (1908) 5 C.L.R. 418 (H.C.) by Isaac J. at Page 441:-

"To arrive at the value of the land at that date, we have, as I can see, to suppose it sold then, not by means of a forced sale, but by voluntary bargaining between the plaintiff and purchaser, willing to trade, but neither of them so anxious to do so that he would overlook any ordinary business consideration.  We must further suppose both to be perfectly acquainted with the land, and cognoscente of all circumstances which might affect its value, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or inconveniences, its surrounding features, its present demand for land, and a likelihood, as then appearing to persons best capable of forming an opinion, of a rise or fall for what reason soever in the amount which one could otherwise would be willing to fix as the value of the property."

On the evidence before me it is common ground that the resumed land lies within the Strathpine/Bald Hills flood plain and the flow path of flooding crosses part of the land.  There is some difference of opinion between the Engineers as to where the flow path enters the subject land at Gympie Road, but this is of no great moment.  There is conflict between the parties as to the extent of inundation of the subject land.  The case for the claimant has been based on the only contour plans available to them at the time of carrying out their investigations.  Mr. Pavlu acting on this plan describes the land as lying between RL 1.8 and RL 7.0 metre on state datum.  He has meticulously considered various flood heights from available records in the selection of development levels in arriving at a floor level of 0.1 metre above the level of a 1 in 100 year flood RL 6.1 and for general reclamation for a 1 in 50 year flood to RL 5.6 for an overall average of about RL 5.75 with playing areas and park playgrounds to a level of a 1 in 10 year flood with an average of RL 5.0.  In his calculations he has accepted by adopting the contour plan that over 3 ha of the land is free of inundation and would not require filling.  Mr. Pavlu conceded that the more recent spot levels indicate that the original contour lines are incorrect and he accepts the levels advanced by the respondent (Exhibit 11). 
              It is envisaged that at the relevant date a prudent purchaser would be prepared to purchase this parcel of land unconditionally for the sum of $625,000.  In his prudence he would have obtained the report of Mr. Pavlu which would indicate to him that he would be faced with a cost of over $700,000 to carry out earthworks on the land together with further expenditure for concrete sleeving of the drains leading from the road culverts.  He would take into consideration the problems associated with access to a road with limited access and the length of time which might be expended in negotiations with the Main Roads Department with a certainty of costs for appropriate signals.  He would have to assess the probable attitude of the Council to an application for a consent use for this land with the background of its location in a notorious Strathpine/Bald Hills flats and frequency of flooding.  In the result the addition of the various figures would suggest he would expend some $1.5M to purchase this site and arrange drainage and fill before commencing constructions of any buildings and such buildings would be as suggested by Mr. Feros for "low intensity uses".
              I have considered the evidence of the Town Planning experts in this matter and I find that no prudent person would be prepared to enter into an unconditional contract to purchase the subject land in the expectation of obtaining a consent to use the land for any of the facilities outlined by Mr. Feros (a) to (f).  There is no dispute between the parties that consent would have been contained for using the land under the use (g) for recreational facilities with limited amenity buildings strategically located making due allowance for the flooded nature of the land.  The question then to be answered is whether a prudent purchaser would be found to develop the land in this way.  Neither valuer has put before the Court a sale which can be used directly.  In passing, Mr. Wenck makes reference to sales of a number of low lying type properties in the Nerang River and Merrimac flood plain locality with recreational facility use, but he does not apply these sales to the subject land.  He does have the sale from Balcombe of a flood-free parcel of land in Roghan Road which was developed as a golf driving range and a nine hole course under construction.  On his analysis of this sale he arrives at a land value of $300,000.  It affords some assistance as a parcel of land purchased for a recreational type use.  The other sales have a different highest and best use and do not assist me. 
              Turning to the valuation to Mr. Sandhoff he values the subject land as a large rural homesite.  His basis for arriving at a figure for the land as a homesite is the sale from Johns to Rimmington for $42,000 and adds an arbitrary allowance which he considers is fair because the Local Authority should pay something more than a rural homesite value because of its excellent exposure.

              Mr. Sandhoff concedes that the potential of the land for recreation is not limited to public purposes but he adheres to his view that no such venture would be a commercial proposition.  When asked to compare the subject with the land purchased for the Golf Driving Range he says that it was suitable for that purpose because it did not flood.
             It is a matter of regret that Mr. Sandhoff was not briefed on the steps which had been taken by the respondent Council in a search for a parcel of land which it considered would best meet the needs of the Shire for a Cultural Centre.  It is clear from the evidence that the Community and Environment Committee undertook extensive investigations before reaching a decision that this site, of all the sites available in the Shire, best met the needs for a cultural centre.  The letter of 6th March, 1986 to the claimant (Exhibit 7) sets forth the advantages perceived in this parcel of land being used for a Cultural Centre with sufficient land to fully landscape the building in an appropriate manner and style with an area to allow for outdoor activities associated with the centre.  He was not made aware of the minutes of the Council of 20th February, 1986 (Exhibit 18) which includes the words "it is considered necessary to acquire the site immediately to protect the area for this use".  The Court is not made aware of the background for this entry, but a reasonable inference could be drawn from the statement.  It is an apprehension that the land might be sold in the open market.  The general tenor of the evidence advanced by Mr. Sandhoff is that he does not see this parcel of land as the ideal site for the Cultural Centre but this view is not supported by the respondent Council.
              I am satisfied on the whole of the evidence that the figure contended for by the respondent is too low.  Mr. Sandhoff sees the parcel of land as being no more than a large rural homesite and adds an arbitrary figure because the owner has lost his land by compulsion.  I find that at the date of resumption there may have been a person in the open market prepared to purchase this parcel of land for a use akin to the use perceived by the Local Authority and the land falls to be valued with this in mind.  There is the sale of the 19.936 ha parcel in Roghan Road which was purchased unconditionally to establish a driving range and 9 hole practice golf course.  At the date of sale it was zoned "Future Urban" but it is not suggested that the purchasers had any difficulty in obtaining the consent of the Brisbane City Council to use the land for its present purpose.  It is superior in all respects to the subject land for the type of development which has occurred there save for the excellent exposure enjoyed by the subject land and its close proximity to the hub of Strathpine.  The prudent purchaser would have regard to the fact that there would be some difficulties and cost in obtaining suitable access and the possible effects on any enterprise due to flooding.  Mr. Wenck has analysed the Balcombe sale to show a land value of $300,000 as a site for a sporting development.  The subject land is overall inferior to that land despite the larger area and I propose to adopt an overall sum of $275,000 as the appropriate award of compensation.  The parties are agreed on the sum of $13,552 for disturbance for legal and valuation and professional fees incurred by the claimant up to the date of lodgment of the claim in the Court.  I add this to the award of compensation to a final figure of $288,552.  The sum of $187,000 has been paid by way of advance on 10th June, 1987. 
              I have been asked by Counsel for the parties to defer making any determination on the question of whether interest on the award is payable pending further argument following the handing down of this judgment and accordingly I reserve my decision on whether interest should be paid upon the award of compensation with liberty to the parties to apply to make submissions on this matter and on the question of costs.

I determine the compensation payable by the respondent to the claimant consequent upon the resumption under all heads of claim in the sum of $288,552.

President of the Land Court