Buckler v Queensland Railways

[1993] QLC 1

[1993] QLC 1

 

  LAND COURT

BRISBANE

3rd February, 1993

Re:     Claims for Compensation -
  Resumption for Railway purposes -
  A91-69/70.

Patrick Buckler and Patricia Dawn Buckler
  v.
  Queensland Railways

J U D G M E N T

As from 18th February, 1989, Queensland Railways resumed three parcels of land for Railway purposes for the proposed Beenleigh to Robina Railway Line.  The resumed lands were in the ownership of the claimants in fee simple and were part of two large en globo parcels situated in the county of Ward, parish of Barrow.  Such en globo parcels were, prior to the resumption, described as Lot 2 on RP 112082 (Lot 2) containing an area of 46.713 hectares and Subdivision C of Portion 41 (Sub C) containing an area of 66.166 hectares.  Lot 2 is bounded on the north by the Gold Coast Highway to which it has a frontage of about 800 metres.  It adjoins a parcel of 4.115 hectares (Lot 1 RP 110444) in the north-eastern corner (owned by a company of which the claimants are shareholders) and otherwise along the eastern boundary by Coombabah Creek.  The southern boundary and separating the lot from Sub. C is Small Creek (apart for a distance of about 80 metres of surveyed boundary).  Sub. C is bounded by Small Creek and by Coombabah Creek on the east and south.  The western boundary of both lots is a railway reserve (the railway was closed in 1964).  Land to the east of Coombabah Creek comprises flood plain and Wetland Reserve.  Opposite Lot 2 on the north is the residential estate known as Helensvale.  Discovery Drive, being the main feeder road through the estate, leaves the Gold Coast Highway opposite Lot 2.  A shopping centre is located to the west of the entry to the estate from the Gold Coast Highway (Helensvale Plaza).  West of Helensvale and west of the Pacific Highway is an estate known as Studio Village.  Between the old railway and the Pacific Highway (Gaven Way) is a subdivision of 3 to 4 hectare parcels (save for Lot 4 on RP 156889 containing 23.72 hectares).  Lot 4 is owned by a company controlled by the claimants.  These lots and Lot 4 are zoned "Light Industry and Special Facilities (Scientific and Research Activity)".  The commercial centre of Nerang is about 8 kilometres southerly via the Pacific Highway.  Southport is about 12 kilometres south-easterly via the Gold Coast Highway.  The township of Oxenford is about 4 kilometres to the north.  Lands to the south of the aggregation are undeveloped. 
           The resumption took an area of about 12.4 hectares from Lot 2, which area is described as Lot 1 on RP 801744, leaving a balance area of 34.313 hectares in three severed parcels.  From Sub. C were taken two strips of land - one of 9412 square metres and the other of 1663 square metres.  The picture thus far can be seen on Figure 1 which is taken from a report of Mr J.R. Humphreys, town planner, and adapted from evidence of Mr Gardiner, valuer, so as to show the areas which will be occupied by the railway and railway station; the areas of the severed parcels remaining in Lot 2 and by a dotted line (not to scale) the 1974 flood levels.  The plan (Figure 1) also shows easement A over Lot 2 in favour of Sub C which was executed by the claimants in 1985.  In respect of Sub C, the railway will run along about 200 metres of the resumed land before entering and running along the old railway reserve.  It may also be observed that, at resumption and at the time of the hearing, access to the resumed land from the Gold Coast Highway is via railway land.  The flood levels shown on the plan assist in appreciating the formation level of the line through the resumed land.  Drawing S16264 which was plotted and surveyed in 1985 is annexed to the report and valuation of Mr G.W. Knight, valuer.  This drawing shows that the line will pass over the Gold Coast Highway by a bridge with the height of the embankment on the southern side (the northern boundary of Lot 2) being about 7 metres and gradually lessening in varying heights before passing through a cutting in the area of Lot 2 just north of Small Creek (where the maximum depth of cut will be about 4.5 metres), then over Small Creek upon concrete box culverts and thereafter upon an embankment (about 2.5 metres high) before again entering a cutting in depths varying to 4.5 metres for the majority of the boundary of Sub C.  The plan carries a notation reading: "Road Overbridge 68.540km" which point is at the centre of the cutting in the area of Lot 2 just north of Small Creek.  This preliminary diagram of the evidence may now be followed by reference to the claims and the assessment of compensation made on behalf of the respondent.  
           Claims were served on Queensland Railways and copies filed in Court for compensation under headings covering compensation for land, severance and injurious affection, in sums of $3,502,000 (Lot 2) and $775,300 (Sub C).  In the hearing of the matter compensation was sought in the lump sum of $3,200,000 excluding disturbance.  The primary assessment was that made by Mr W.D. Gardiner, valuer.  He valued the subject property (Lot 2 and Sub C) "as one amalgamated integrated resort parcel with a total area of 112.879 hectares".  His valuation of the land for this use which he said was its highest and best use was before the resumption $12,400,000 (adopted average $110,000 per hectare which was derived from a consideration of the value of about 13 hectares fronting the Gold Coast Highway and suitable for industrial/commercial uses at about $175,000 per hectare and the balance of the land for resort/residential/golf course uses at a value of about $100,000 per hectare).  The valuation of the land after the resumption was calculated as follows - Ref Figure 1.

North western section
           10.511 hectares @ $200,000 per hectare  $2,102,200

South western section
           2.348 hectares @ $80,000 per hectare  $  187,840

Eastern section of Lot 2 and Sub C
           86.52 hectares @ $80,000 per hectare  $6,921,600

Total Value After  $9,211,640

adopt  $9,200,000

The assessment assumes that Queensland Railways will meet the cost of construction of an overpass to allow access to the eastern section of Lot 2 and to Sub C from Lot 2 which access by easement has been denied as a result of the resumption.  Claims under the heading of disturbance were substantially resolved during the hearing.  The items claimed are as follows -

1.Legal fees$  1,200

2.Valuation fees  $  1,500

3.        Golf course redesign costs  $ 95,000

4.        Road and culvert  $122,000

5.        Fencing  $  4,550
Of these items, the quantum of claim is not in dispute, save for the claim for golf course redesign costs.  The total amount claimed as compensation is therefore $3,424,250.
           Queensland Railways relies upon an assessment of compensation made by Mr G.W. Knight, valuer, in the employ of the Department of Lands.  His assessment of compensation is nil.  He says that before the resumption the land (the aggregate) had a highest and most probable use as a joint development incorporating a golf course and associated facilities, recreation facilities and residential development.  His valuation of the land for this use is $8 million or about $70,000 per hectare.  His valuation of the land after the resumption may be prefaced with his resume of the effects of the resumption as stated in his report and valuation -

"The resumption will cause:

(a)a loss of an area of approximately 13.45 hectares from the parent aggregation;

(b)severance of the aggregation into 3 areas comprising an eastern severance of approximately 86.5186 hectares, a north west severance of approximately 10.5115 hectares and a south west severance of approximately 2.3484 hectares;

(c)enhancement to the retained parent lands due to the activities of the resuming authority, namely the location of a railway station on part of the resumed land.  The railway station results in:

(1)higher profile zonings and lands uses on the retained land;

(2)greater diversity of development types on the retained lands;

(3)provides a focus/identification aspect which is unique to the subject lands within this region;

(4)regional development will focus on the lands which have immediate proximity to the railway station;

(5)provides a growth catalyst/generator around the station site and the surrounding region; and

(6)provides the site with an exclusive potential for development as a transit centre servicing the region inclusive of the City of Southport.  "

This valuation was made "on the basis that a golf course and associated facilities, clubhouse, recreational facilities and residential precinct would be developed on the eastern portion of the parent aggregation" (86.518 hectares) and that "Development of the western severance would incorporate commercial/business orientated usages" (10.511 hectares and 2.348 hectares).  The value applied to the total area is $10 million or about $100,000 per hectare.  His assessment was made on the basis that suitable bridging of the severance at kilometreage 68.54 km would be provided at the expense of Queensland Railways.  An overpass at this point with road will on the evidence pass through the severed area of 2.348 hectares.  It may be seen that Mr Gardiner is of the opinion that land fronting the Gold Coast Highway after the resumption (the western severance) is enhanced by the resumption and that the value of the land east of the resumption has diminished in value.
           The Acquisition of Land Act 1967 provides that -

"20.  Assessment of compensation.  (1) In assessing the compensation to be paid, regard shall in every case be had not only to the value of land taken but also to the damage, if any, caused by either or both of the following, namely -

(a)the severing of the land taken from other land of the claimant;

(b)the exercise of any statutory powers by the constructing authority otherwise injuriously affecting such other land.

(2) Compensation shall be assessed according to the value of the estate or interest of the claimant in the land taken on the date when it was taken.

(3) In assessing the compensation to be paid, there shall be taken into consideration, by way of set-off or abatement, any enhancement of the value of the interest of the claimant in any land adjoining the land taken or severed therefrom by the carrying out of the works or purpose for which the land is taken.

But in no case shall this subsection operate so as to require any payment to be made by the claimant in consideration of such enhancement of value. "

When compensation for the effects of severance, injurious affection and/or enhancement is in question, it is common practice for the land to be valued by what is known as the "before" and "after" method of valuation.  Valuers Gardiner and Knight have taken this approach.  Their opinions have been influenced by experts in other fields (more particularly town planning).  Witnesses called on behalf of the claimants, in addition to Mr Gardiner, included -

Mr K.C. Rameau, who is an associate director of a company, Capital & Coastal, which engages, inter alia, in the purchasing and marketing of properties for high quality resort development;

Mr F.M. Bolton, golf course designer;

Mr M.F. Winders, consulting engineer, who gave evidence dealing with the noise aspects of the resumption;

Mr V.A.T. Eppell, consulting engineer, specialising in transportation and traffic engineering;

Mr M.W. McCracken, specialist in retail analysis;

Mr R.W. Barrett, marketing consultant;

Mr B.J. Hart, real estate agent;

Mr P. Bell, town planner; and

Mr R.J. Cozens, civil engineer.

Witnesses called on behalf of Queensland Railways in addition to Mr Knight included -

Mr R.M. Woods of Horwath & Horwath which company, inter alia, is involved in providing feasibility studies in tourist activities;

Mr E.J. Ryan, acting manager, Property Division, Queensland Railways;

Mr J.M. Norling, management consultant in the areas of retailing office space and urban development;

Mr D.B.L. Arbon, town planner in the employ of Albert Shire Council;

Mr R.B. Hunter, manager, Projects and Contracts, Queensland Railways;

Mr B.G. Bock, general manager, Engineering Services, Queensland Railways;

Mr J.R. Humphreys, consultant town planner; and

Mr C.L. Beard, engineer.

An aggregation of land in this area was acquired by the claimants during 1977.  In the context of development applications, a development of Sub C was the first to receive the consideration of the Albert Shire Council (the Shire Council).  On 13th July, 1982, the Council granted consent for the use of this parcel for "Outdoor Recreation Accommodation Units and Motel" which allowed for the development of the land for a golf course, 126 villa units and a 24-room motel.  At the time the land was zoned "Rural B" and the strategic plan designation was "Rural Residential".  The 1982 strategic plan for the Shire Council was gazetted shortly thereafter (7th August, 1982).  The strategic plan showed the preferred use for this parcel as "light industry".  "Special industry" land was shown as west of the railway.  At the date of resumption, the land remained zoned "Rural C".  The strategic plan (1988) shows the preferred use as "Industry".  One of the conditions attaching to the consent was that the consent would lapse unless the nominated land use was substantially commenced within two years.  An application for an extension was granted in 1985.  An 18-hole golf course on the site is substantially complete.  The consent has remained in tact at resumption and at the date of hearing.  No witness before the Court has attempted to offer a higher and better use for this parcel, whether as an entity or if developed in conjunction with Lot 2 and/or other lands to the north.  At the time of the application, Sub C was landlocked and in the absence of any planning approvals in respect of the adjoining Lot 2 to the north - "Present access as proposed would be via Lot 8 in Millaroo Drive and ultimately via the extension of Millaroo Drive to the Gold Coast Highway at Helensvale" - Council Minutes.  A permit to cross the old railway line at or about this point was granted in the 1880s, when land on each side was in common ownership and used for pasture.  Common ownership of the respective parcels was severed in 1967.  Use also changed.  Lot 2 became the subject of an application in September 1984 when application was made to use that parcel for "Tourist Entertainment Purposes" - buildings proposed to be erected on the site were "clubhouse including residence, squash courts, maintenance shed and BMX hire repair and storage shed".  The plan accompanying the application depicts structures and a golf driving range through the centre of the area with 9 holes of golf on either side and a BMX track taking up the loop in Coombabah Creek.  The preferred use for the parcel as shown in the 1982 strategic plan was the same as that for Sub C.  Queensland Railways lodged an objection to the application and it did not proceed.  Under the 1988 strategic plan, the preferred use is shown as "industry and part Regional Business Centre".  Application was made in October 1988 over the eastern severance of the lot and including Lot 1 on RP 110444 for consent to establish a Tourist Facility - golf course, recreation facilities and accommodation units (150 - of which 80 units were to be placed on Lot 1 and 70 on the higher southern area of Lot 2).  Approval was given for this development on 2nd December, 1988.  The conceptual plan accompanying the application provided for access to Lot 1 to be taken from the Gold Coast Highway with a 9-hole course separating the unit developments proposed for the lot and those proposed for Lot 2 with access being obtained to this area from the Gold Coast Highway via an entry opposite Discovery Drive, then southerly and via a bridge over the railway (which by then was known) to a roundabout from which access could also be got to Sub C.  On a similar date an application was lodged to rezone the land contained within the western severance of Lot 2 and Lot 4 on RP 156889.  The application requested a zoning of Special Facilities (Commercial and Industrial Centre) zone.  The application was approved.  Appeals were lodged to the Local Government Court against both applications.  On 18th February, 1989, the resumption was effected.  On 5th April, 1989, a master plan for the proposed Helensvale Station Regional Centre was submitted for the approval of the Council.  The plan covered the land contained in the two applications, the subject of appeal.  The Council responded favourably on 1st February, 1990.  Subsequently the appeals were withdrawn and the Minister caused a rezoning to be gazetted to "Special Facilities (Commercial and Industrial Centre)" excluding the railway land which was retained in Rural C zoning.
           I turn now to the question of the value of Lot 2 and Sub C before the resumption.  In that exercise the Pointe Gourde principle has relevance.  (Pointe Gourde Quarrying and Transport Co. Ltd. v. Sub-Intendent of Crown Lands (1947) A.C. 565: (1978) 5 Q.L.C.R. 145). Such requires that in assessing compensation any increase or decrease in the market value of the land arising from the purpose for which the land was resumed shall be disregarded. The first application made in respect of Lot 2 (September 1984) met with objection from Queensland Railways. The objection dated 15th November, 1984, showed the proposed line in the position of the final alignment with the proposed station taking up a triangle in the northern area of the land between the line and the Gold Coast Highway to a point opposite Discovery Drive. The first official announcement from Government came in 1984. The working plan and section map (S16264) appended to the report of Mr Knight was plotted in August 1985. Parliament gave its approval for the route within defined limits in November 1985 which included relocation of the station to a site north of the Gold Coast Highway. The attitude which a prudent purchaser would take to the objection by Queensland Railways against the application made in respect of Lot 2 in 1984 and confirmed within the ensuing year is one which may be taken from the evidence of Mr Bell. In his opinion, the objection (with plan) "set the scene for all future development proposals to recognise the existence of the railway scheme. A prudent owner could not ignore the railway in future proposals because of the precedent set by this application." This appears to me to be a reasonable expression of matters which must be ignored in the application of the Pointe Gourde principle.  There is, however, but this qualification and that is that the principle does not require that the existence of the old railway reserve along the western boundary of either Lot 2 or Sub C should be ignored.  Nor would it appear to me that the principle requires that pressure which was being put upon Government by the planning authority (the Shire Council) for the introduction of a rapid transit corridor to the coast should be ignored.  The former railway from Beenleigh to Coolangatta/Tweed Heads closed in 1964.  Parts of the railway land were disposed of to adjoining owners and parts used for road purposes.  That area of land adjoining the subject parcels remained in the ownership of Queensland Railways.  It is evident in the report of Mr Humphreys that the Shire Council began to apply pressure to the Government for the re-introduction of the railway line in the 1972 strategic plan. Pressure was continued in the 1982 plan.  In that plan, a rail connection was in fact shown on the plan "for the most part following the former Brisbane/Gold Coast rail link as far as Helensvale before crossing the Carrara Flood Plain ......." (Mr Humphreys).  It seems therefore, although little will turn on the point, that any prudent purchaser, more particularly of Sub C for the purpose for which the approval was sought in 1982, would not ignore the fact that the land was bounded on the west by a rail corridor and would go about his planning of the area with a degree of caution.  The application made in respect of this parcel in 1982 for Golf Course and Associated Facilities (Accommodation Units and Motel) appears on the evidence to have been based upon a concept drawn by Thomson and Wolveridge.  The plan provided for an 18-hole championship course with access coming in temporarily from Millaroo Drive through Lot 8 to a clubhouse sited immediately where the number "41" is shown on Figure 1 with carparking and landscaping between it and the old railway.  Units were spread down each ridge.  A lake for irrigation purposes and landing ground (on water) from a practice tee was sited in the north-western corner adjoining Small Creek.  The golf course meandered around and between the valleys and along the banks of Coombabah Creek.  Between the clubhouse and the south-western corner were tennis courts and then a motel, again with landscaping separating the development from the railway reserve.  On the plan there is no apparent access with Lot 2.  Indeed the area of Small Creek is depicted as carrying heavy vegetation.  The consent given to the application carried 23 conditions, one of which - Condition 23 - provided that legal access to the land was to be determined to the satisfaction of the shire engineer.  This concept of development has remained as the accepted highest and best use for the parcel.  Exhibit 17 (Plan SK18B) was tendered as a concept of a development of Sub C together with Lot 2 with the development of Lot 2 consisting generally of commercial and light industrial uses on the Gold Coast Highway to and along the old railway (with a landscaped buffer strip between) with units developed on predominantly the higher land to the rear and a 9-hole course on the lower land.  Access to both lots is shown as coming in off the Gold Coast Highway opposite Discovery Drive with arms swinging east and west to serve the commercial/industrial areas by a roundabout and with access to the units/recreation developments being via the same entry and by a second roundabout with access arms from which access would radiate southerly behind the Light Industrial areas.  The entry which is in the shape of an up-turned "U" with a cul-de-sac at the beginning and at the end, would be dressed up in the nature of a plaza with retail shopping on either side.  This was an idea as to the composition of the entry statement.  It was intended that this part of the area would be retained and maintained by the resort owner.  The development of Lot 2 in this manner is seen as complementing the development envisaged for Sub C.  The plan is conceptual only and, apart from the argument as to the extent of land which but for the resumption may have been used for industrial purposes, was criticised principally on whether a roundabout would be allowed immediately on entry from the Gold Coast Highway which is proposed to be a signalised intersection.  Viewing the parcels as one site for integrated resort purposes, the principal differences between the valuers lie in the extent of land which might be developed for industrial purposes on the Gold Coast Highway and the other which has a substantial bearing on value is whether the quality of the development to use language used in 1989 would likely be of 5-star quality or something less.  Mr Rameau, who is experienced in the purchasing, on-selling and marketing of land for integrated resort development purposes, was of the opinion that the site had a good location in terms of access - on and visible to highway traffic, that its proximity to theme parks to the north and to the City of Brisbane was a factor for consideration, that the contours of the land were ideal in that the golf course could be laid out on the lower land with homesites/residential products being available on the higher ridges and that the site could take a 5-star development.  He was of the opinion that at the relevant date the market for this type of product was buoyant with likely purchasers being Japanese.  He expressed the view that the site could be marketed through the Helensvale end with an entry immediately opposite the entry to Helensvale.  By using Sanctuary Cove as an analogy, he could see no problem in having commercial precincts near the entry if done correctly but he would not favour entry through any light industrial areas.  His company purchased and on-sold the development which became known as Paradise Springs.  This development is situated at the Robina (southern) end of the Merrimac Flood Plain.  At the time of purchase, access to the land via the Robina parkway was unformed but it was known that it would be formed.  He said that this provided a constraint on the saleability of the site.  Other features which he saw as detracting from Paradise Springs included the existence of high-tension transmission lines traversing the centre of the low-lying land and the cost of development of land generally on the Merrimac Flood Plain.  He was of the opinion that a fairly similar product could be developed on the subject land but at lower cost.  He expressed the view that the site could be marketed for a sum of $11 million or about $100,000 per hectare as at February 1989.

           Mr Bolton is a designer of golf courses.  He was commissioned by Mr Buckler in 1988 to construct a golf course in Sub C.  He was aware of the Thomson and Wolveridge plan having seen it in about 1983/84.  The course he designed and which is substantially complete is shown in evidence on Plan SK20.  It was designed and constructed with knowledge of the impending resumption.  In order to speak about what may have been put on the site had there been no resumption, he voiced opinions on the Thomson and Wolveridge plan.  Subject to some corrections and redesign which he would make so as to remove the possibility of the destruction of vegetation along the banks of Coombabah Creek preventing line of sight to a green and otherwise eliminating areas of fairways which in his opinion were too close for comfort, the plan in his opinion provided an exceptional course of championship standard.  On the northern area, that is Lot 2, he believed 9 holes of golf could be constructed of comparable standard to that which was available on Sub C, thus providing a course of 27 holes of which any two of the 9's would have been comparable.  He is a man who does not like to design golf courses that cater for the professional only and leave the average golfer in the wilderness.  The course which has been designed and which in my view of his evidence would have been there irrespective of the resumption were he to design it contains four sets of tees.  From the gold tees the professional has a tough course, such as The Pines at Sanctuary Cove - "and the rest of the golf course I believe the average golfer will enjoy very much because he is the man that pays the bills and if your golf course does not suit him the golf course is not going to be successful".  Both the existing course (SK20) and that of Thomson and Wolveridge are of approximately the same length from the gold tees - 7,000 yards.  The course is proposed to be irrigated from a storage lake.  In designing the course Mr Bolton was given boundary markers and he put the course within those boundaries without reference to other features included in the development, save that the course has been designed around the areas (including possible clubhouse site) which the owner wishes to develop.  In that context his considerations and design have been directed more to physical features and using those features to enhance the challenge/attractiveness of the course rather than the design being blended or moulded by the manner in which developments may or may not be put on the higher lands, including the clubhouse, although if he was to have a say "I am very very much opposed to lavish clubhouses on golf courses because they don't work".  Inherent in his evidence is the warning that the question of viability should be kept constantly in mind when undertaking a development of this nature.  In terms of physical features and attractiveness to players, he would prefer Sub C to Paradise Springs - the sites in his opinion could not be compared - Paradise Springs is flat and severed by high tension wires, whereas the subject land is undulating and is enhanced by Coombabah Creek with its attendant attractiveness in vegetation, etc. 
           Mr R.W. Barrett, who is a marketing consultant, agreed that the best market for the entire site as at February 1989 was as one site on the international market.  He was of the opinion that some usage such as warehouses, showrooms, etc., should be placed on the Gold Coast Highway frontage and that such would not have provided any great or major problem to the resort as a fully integrated resort system.  Japanese investors in his opinion look for a product which they can market to their own countrymen.  Position in the market was therefore important. Prior to resumption, he would envisage unit development of two storey cluster-type housing which would sell for around the $250,000 mark per unit.  At the relevant date such price would have been comparable with selling prices for a medium quality unit in Sanctuary Cove on a golf course, assuming that the construction was similar and the product similar, although he concedes, when speaking of the possibility of running into a higher market - up to say $350,000 - that Sanctuary Cove has a lot more amenities overall than is possessed by the subject site.  He had in fact shown the site to potential Japanese buyers.  Their main concern, it would appear on his evidence and this of course is after the resumption, was one of access; that is, where was access going to be got to the site, what was its cost and who was going to bear it.  He said that entry via industrial areas posed no problems to these buyers as they, depending on the purchaser, would build a dream in the middle of an industrial city or town.  The substance of his evidence on this issue may be taken from the following parts of the transcript:

"All right.So to say that this would have been a five-star type of complex would have made it extremely unique, wouldn't it?-- If the golf course was considered - now, every developer has in his dream that he wants to build a five-star resort.  In 1989 Mr Buckler's idea was that it was going to be a five-star resort because of the quality of the championship golf course that was to be constructed and its design, so in his mind and in his dream he wanted to construct that because, purely and simply, that was the market at that time, five-star; everybody was building five-star.

Everyone was aiming at five-star?-- Yes.

But the reality ----?-- If you aim five and finish up with three and a half, well, you've probably done very well.

Yes, well, actually that's about what I was coming to in that in this particular area, whilst one might have had those sorts of visions, the reality is that, having regard to the location of this particular site, a three-star type of development would have been a more realistic expectation?-- That depends.

Well, depends on what?  Who the buyer is?-- Exactly.

All right---?-- Market, positioning, image and brand.

But, see, it's not like - it's not like, is it, those other sites which are located proximate to the coastal strip - and I'll leave aside Sanctuary Cove - but it's not like those other sites that are proximate to the coastal strip, you know, which have access to the beach----?-- Sure.

... restaurants, the casinos, the theatres.  So it's different in that regard, isn't it?-- Well, look, I think you're really labouring on a point here; a five-star, it's a word; and we're after quality.  And it means only quality - five-star - correct?

Uh-huh?-- Quality.  So quality golf course, quality residential, is all we're talking about.

But when you speak of Kooralbyn, you say Kooralbyn is not five-star accommodation?-- But it's got a five-star gold course, if you really want to relate it to stars, quality.

But we still have a five-star golf course here, in the after situation?-- Quality, yes.

Right.But what I'm getting at is the type of purchaser and the type of development that was likely to go on this type of land would have been more likely of a three-star quality, that is of a Kooralbyn type of development?-- It depends who it was.

.................

BY MR WHITE:  What I think Mr Jones is driving at is the land, because of its location etc., just would not be worthy of a five-star integrated resort development?-- It depends on the purchaser.  They'll build a dream in the middle of an industrial city or a town.  The Japanese guys do some strange things.  It depends on the purchaser.  That has to be my answer.   "

Mr Hart, who specialises in selling industrial property, said that with the integrated resort concept the Gold Coast Highway frontage would appeal to some minor retail complementing developments for showroom type uses to possibly hi-tech industrial with the developer maintaining control and maintenance of the entry to the area which would also serve as entry to the resort.  His evidence was more convincing in respect of the demand and sale of 1500/2000 square metre industrial blocks in subdivision than it was in respect of value of an en globo area suitable for that use but being part of a single development incorporating other uses.  In terms of development he said that he would prefer factories and buildings to be facing the highway (with the service road between) so as to maximise exposure to the highway.  In cross-examination he had this to say:

"BY MR GRIFFIN:  You've got the same provisions relating to the entrance and the service road around the property in the post situation---?--  The service roads should be at the front of the property, not the rear of the property.

What's the difference between the two locations of the service road?-- it gives your factories and buildings more exposure to the highway.

But the exposure to the highway's the same in each instance, I suggest to you?-- No, it's not.  Why would you put the back of your building exposed to the highway?

The exposure to the highway is predominantly in relation to letting people know of the kind of uses that are there, isn't it?-- Yes, that's correct.  But you present your building to the front of the block, not to the rear of the block.

But that's just a matter of design; if you know that you're going to have a building that has got two frontages, you can easily accommodate that.  You don't - that's just a matter of the design of the building, isn't it?-- No, not really.  If you've got a showroom and manufacturing organisation you want the showroom to the front of the building showing off as much as possible to the highway.  "

Mr Bell agreed that the highest and best use of the Gold Coast Highway frontage land was for the uses already discussed, including some minor office accommodation if genuine hi-tech industries establish in the area.  In considering this question, Mr Humphreys went back to the objectives of the 1982 strategic plan and after dealing with the identification of the Helensvale Plaza site as a district and possible future regional centre and the designation of the subject land as light industrial and special industrial, he concluded at paragraph 7.2.8 of his report as follows:

"The core functions of a future regional centre at Helensvale envisaged by the 1982 Plan would logically and desirably have all been located on the northern side of the Gold Coast Highway, building on the Helensvale District Centre that had already been approved.  At best, only subsidiary, complementary land uses could be expected to be located south of the Gold Coast Highway (for example, showrooms, office park, service trades). "

Given the location of Helensvale Plaza he said that the type of uses would have been predominantly light industry in nature including hi-technology and service industries.

"..............................Retail uses (except for showrooms) prohibited in the light industry zone, would be contrary to the appropriate development of a District/Regional centre in this locality.  Some limited office development, complementary to light industry, may have been approved as a consent use within the Light Industry Zone provided the character and intent of the Light Industry Zone - "to provide for local and small scale industrial activities within easy reach of residential areas" - is not compromised.  The majority of office uses developed in the area would more appropriately be located on that vacant land currently zoned light industry adjacent to the Helensvale Plaza shopping centre.  This land is on the same side of the Gold Coast Highway and conveniently located to the adjacent retail facilities and the Helensvale residential community.

Nevertheless, private open space development is better suited to the sites topography and environment and clearly is a more viable use than light industrial.  A golf course requires substantial area and the 18 hole course on the southern portion of this eastern land utilised the whole site.  A nine hole course has been approved on the eastern half of the northern portion, and it could reasonably be expected that approval would have been granted for a full 18 holes on this whole northern portion.  Nevertheless, the western half of this northern portion has the benefit of direct frontage to the Gold Coast Highway at the point preferred by the MRD.  Therefore, if private open space use were not proposed, light industrial zoning, would be in accordance with the achievement of the Strategic Plan objectives on the flood free area.  A landscape buffer between light industrial use and a golf course would be a likely design feature and may have been required by Council in accordance with the 1988 Strategic Plan Objective 8(b)(iii)." - para 7.2.9.

Mr Woods defined a 5-star development as one that relates to both the quality of the product that is available and also to the type of service that is available.  "It would be superior facilities and services within a hotel and a range of accommodation types together with amenities,facilities.  Normally 5-star hotels are associated with some retail type facilities, retail shopping facilities."  He spoke about proximity of a site to demand generators as matters influencing the suitability of any particular site for a 5-star development or something less, including so far as the Gold Coast is concerned, proximity of a site to the beach, to restaurants, parks and gardens and the casino.  In his opinion the subject location was lacking immediate demand generators.  A fitting development would in his opinion be a 3-star facility with villas priced up to $250,000.  He saw Arundel Hills which is used by Mr Gardiner as a comparative sale as providing a 3-star or medium priced accommodation with an excellent clubhouse and overall more up-market than the subject site.
           Mr Norling was of the opinion that any retail facilities that may be developed on the Gold Coast Highway frontage land would be limited to convenience retail to service the needs of workers in the industrial areas.  Mr Arbon said that he would have viewed the frontage land as attractive land for showroom and car yards and uses which like to have highway frontage.  Any retail development in his opinion would be limited.  He agreed that there was a possibility, should hi-tech industry develop in the area, that some pseudo-office activities could develop but not straightout commercial offices such as banking, real estate and those sorts of things.
           Mr Gardiner has viewed 13 hectares of the subject land as suitable for industrial/commercial uses.  Plan SK18B shows the area as taking up the whole of the Gold Coast Highway frontage between the old rail corridor and Lot 1 on RP 110444 and extending back to approximately a line coinciding with the western boundary of the railway corridor. 
           Mr Knight who did not discount the possibility of some showroom-type developments on the frontage thought that such development would more appropriately be confined to an area of the order of 3 to 5 hectares.  His only real criticism of the extent of land which Mr Gardiner considered could be put to industrial development on the frontage was not that such land had the potential for such development but that a) the size of such development could impact on the development of the land at the rear and b) that for an area of that size the potential for full development was futuristic, having regard to the development which has occurred in the immediate vicinity.  The concept as depicted on Plan SK18B may therefore be taken as a guide to likely development of the site subject to the qualifications which I have identified. 
           Mr Gardiner valued the site as one integrated resort, having the ability to be positioned in a mid-market to up-market and quite up-market development.  This I read as providing an option ranging from 3-star to 5-star depending on the wishes of the particular developer.  Mr Bolton has designed a golf course on Sub C which he believes would fit into a 5-star development.  This could have been achieved prior to the resumption.  He has designed the course so as to give pleasure to both the professional golfer and the average golfer.  He personally is against 5-star clubhouses.  Viability is a relevant consideration.  Mr Barrett spoke about flexibility and ultimate development being determined by the particular purchaser.  Mr Rameau felt confident that he could have marketed the site as one befitting the upper range, although he did concede that the site was not the ideal and that the development proposed on Plan SK18B was a preferred development.  Mr Woods would prefer a 3-star development - suitable demand generators being absent in his opinion.  Mr Gardiner was of the opinion that the quality of development would not be dissimilar to Arundel Hills which is a golf course/residential development with no tourist accommodation and no industrial/commercial uses.  If development was to be placed in the mid-market range, he would envisage villas being priced in the range from $250,000 through to $350,000/$400,000.  He would regard villas priced in a range between $175,000 and $250,000 as being down-market.  He agreed that provision on the plan for a 24-unit motel was not consistent with an up-market or close-to-up-market development.  Mr Knight, although stressing that consent would be required to fill the land above flood level to RL 2.6, more particularly along the highway frontage land, conceded that permission would most likely be obtained provided it was necessary so as to achieve orderly development.  Mr Arbon did not raise any probability that consent would not be obtained.  Mr Knight, in considering a development which could be placed on the subject land, preferred to see one where units would be priced in a range around $150,000.  He did not think that the site could compete with Sanctuary Cove which incorporates substantial water development nor with Arundel Hills which he suggests is a vastly superior site being better located and more elevated than is the subject land.  Surrounding developments such as Helensvale and Studio Village provide for residential products ranging up to $120,000 and $220,000 respectively.  Before entering into a comparison with the sales relied upon by Mr Gardiner and Mr Knight, it is worthwhile recapitulating on some evidence relevant to the exercise - it is agreed that the highest and best use of the parcels is as one integrated resort site which could provide 27 holes of golf of a standard to 5-star, with 126-villa units and a 24-unit motel on Sub C with about 196 units on Lot 2 and with an area of land on the highway frontage suitable for industrial-type uses; the preferred access and entry to the estate is that directly opposite the entry to Helensvale which intersection will be signalised; the design plan (Plan SK18B) showing an entry through a central plaza as an entry statement to the resort and serving both the resort and the industrial lands has been criticised from a traffic engineering point of view with a roundabout immediately upon entry; the price range for residential products in the nearby subdivisions of Helensvale and Studio Village are if anything towards the lower market or on the bottom of the mid-market range; the development will be separated from the Pacific Highway by a subdivision for light industrial uses (some hi-tech) - development in this subdivision has been slow with only one development occurring to the relevant date and at the date of hearing.  To the west of the Pacific Highway and opposite this subdivision is a "Rural Residential A" subdivision.  Lands to the south of the subject lands are undeveloped whilst land to the east is Wetland Reserve.  The township of Nerang is about 8 kilometres southerly while Southport with the nearest beach is about 12 kilometres away.  For his opinion on value, Mr Knight relied on three sales - Studio Village, Arundel Park (not the golf course, Arundel Hills) and Paradise Springs.  Mr Gardiner considered a number of sales of both resort land and industrial land.  In the former bracket, Paradise Springs is a common sale.  Nearer the subject land is the site of Arundel Hills.  I may deal firstly with those sales of Mr Gardiner which I see as providing the least assistance.

           Royal Albert Quays of about 376 hectares lies on the north bank of the Coomera River and opposite Sanctuary Cove which is on the south bank.  The purchase price in 1988 reflected a price of $90,409 per hectare.  The development proposal comprised a waterways based luxury residential and resort consisting of -

-three international hotels;

-two golf courses with one country club;

-          a themed shopping village;

-a marina of 400 craft;

-          256 detached house allotments;
           -          1819 villa apartments and town houses.

I see little affinity between that proposal and what is intended to be marketed on the subject land.
           Oyster Cove is an oddshaped parcel of about 161 hectares lying between Saltwater Creek and Coombabah Creek.  It adjoins the Shinko development on Hope Island.  In September 1988, the site was contracted for a consideration reflecting $36,355 per hectare.  Development envisaged -

-300 residential allotments;

-          350 designer town houses and condominiums;
           -          300 room resort hotel;
           -          a non-tidal lake;
           -          18-hole golf course.

Again I see little affinity between the proposals.  In any event the purchase price and the values applied to the subject site are so far apart that there is obviously little comparability between them.
           I move then to the area of the Merrimac Flood Plain which, by sheer volume of golf course resort-type developments, may be described as the mecca for this type of development on the Gold Coast.  The Merrimac Plain sits behind Broadbeach/Miami and Jupiters Casino.  On the plan attached to Mr Gardiner's report and virtually adjoining each other, there is Sapphire Lakes west of the Pacific Highway about which more will be said shortly, then to the east of the highway and travelling north, Robina Woods, Paradise Springs, Broadlakes, Nikko (private), Eastpac, Palm Meadows, and Carrara.  On the north bank of the Nerang River across from Carrara, there is Royal Pines.
           Sapphire Lakes of about 148 hectares sold in October 1988 for a consideration reflecting a price of $155,732 per hectare.  The site is described by Mr Gardiner as consisting of elevated and flood free land along Somerset Drive with Mudgeeraba Creek bisecting the property and requiring for development substantial fill and drainage.  The site has consent for -

On Lot 1  -  300 room hotel
  -  150 units
  -  recreational facilities

On balance land       -  27 hole golf course
  -  200 room hotel
  -  1600 group title units
  -  tennis, lawn bowls, etc.
  -  recreation clubs
  -  40 ha lake

The selling price per hectare is, in the opinion of Mr Knight, within the range of sales for better quality lands on the Merrimac Flood Plain; that is, from $150,000 to $200,000 per hectare.
           Paradise Springs was bought and on-sold by the company, Capital & Coastal, (Mr Rameau).  The area sold was 91.47 hectares.  The sale was made in November 1988 for $8.7 million or $95,113 per hectare with approval for -

-  450 villas
  -  200 room hotel
  -  27 hole golf course
  -  golf and racket club
  -  resort facilities

At the time of sale the Robina Parkway to which the land has a frontage of about 1 kilometre was unformed but it was known that it would be formed.  The northern boundary of the site is Mudgeeraba Creek.  About 14 hectares of the land in the south-eastern corner is elevated land with an aspect to the north and north-west over the golf course.  The balance area, 76 hectares, is flood plain with a high voltage transmission line passing through the property.  Mr Gardiner concedes that Paradise Springs has a superior location and a slightly superior amenity but loses superiority when development costs and irrigation are considered.  It is proposed that the subject land would be irrigated from a fresh water lake within the property, whereas golf course developments on the Merrimac Flood Plain are generally irrigated by sewage farm effluent.
           More remote developments or proposed developments considered were the Gilston Golf Club site of 84.5 hectares which sold in March 1988 for $5.1 million or $60,355 per hectare.  The original development proposal encompassed two 18-hole golf courses, a clubhouse and associated resort style accommodation.  The site is seen as one which is inferior to the subject site mainly due to location.  Pacific Downs is another site which is inferior to the subject site in location.  This site is situated at Upper Coomera and realised on sale in December 1988 the sum of $8.5 million or $48,108 per hectare.  Arundel Hills is a site with an area of 175.7 hectares.  The site was purchased in 1988 for $27.5 million or $156,517 per hectare.  The land was purchased by Japanese.  At the time of sale the site had subdivisional approval for 1,000 lots.  The Japanese purchasers applied for rezoning to - "Special Residential" - allowing for subdivision into golf course and group housing.  In the report of Mr Gardiner dealing with the sale it is said that a new application is just about to be considered by council for subdivision into a golf course and Residential A lots.  The site is situated in Arundel Drive and not far distant from the subject land.  The land is elevated.  A challenging course has been constructed with a clubhouse "anything but 3-star" (Mr Woods).  By comparison Mr Gardiner would value the resort land on the subject property at about $100,000 per hectare.  The sale was not included in the sales receiving direct consideration for comparison purposes by Mr Knight.  It is conceded by both valuers that the site is superior to the subject site but what the site has for comparison purposes is its proximity to the subject land, the affinity they have in terms of location to the beaches, etc., and neither are on the Merrimac Flood Plain with its particular requirements on development but with favourable location to Broadbeach/Miami and Jupiters.  In terms of location and proposed development, Arundel Hills is more comparable with the subject land than any other basic sale.  It is, however, not the only sale of a large parcel of en globo land within the general area of the subject land.  Studio Village of 79.31 hectares sold in July 1988 for $3.6 million or $45,390 per hectare.  The land was developed for residential purposes directed towards the first home buyer with packages selling around $90,000 and then up to $115,000.  Mr Knight sees the topography of the block as superior to the subject site but said that the site was inferior in situation, zoning and development potential.  He expressed the view that a golf course could have been constructed on the site.  This opportunity, however, was not taken by the purchaser.  Arundel Park is a site south of the subject land and south-west of Arundel Hills.  This parcel of 111.74 hectares was purchased at auction by Vanglow Pty Ltd in September 1988 for $5.3 million or $47,906 per hectare.  Since purchase the land was rezoned from "Rural Residential" to "Special Residential".  Mr Knight said that the current proposals do not include a golf course.  He describes the site as comprising undulating forest slopes, ridge tops and creek flats.  In October 1989, Vanglow purchased 27 hectares of adjoining land for $2.4 million.  The composite purchase of the two parcels shows a rate of $55,880 per hectare.  On enquiries made by Mr Knight, he was led to believe that the reason behind the later purchase included the possibility that by the addition of such land to the primary parcel a golf course could be developed.  The evidence on the point is not as clear as it could be.  The comparability of these two sales with the subject land lies in their situation and in the fact that they were sales of comparable sized en globo parcels in the relevant period.  I doubt if the comparisons can be taken much further.  It is significant in my opinion that the purchasers in the case of Studio Village and Arundel Park purchased the land for residential development, the latter of which was purchased at auction, and presumably in competition with those who considered whether there was any potential in the land for a golf course type development.  If the later purchase by Vanglow is taken as representing the added value of land suitable for golf course purposes to a residential estate, the sale represents a value of about $90,000 per hectare.  Mr Rameau said that in marketing Paradise Springs the fact that the Robina Parkway was unformed at the time was a marketing constraint.  He also saw the existence of the power lines as a marketing constraint.  The purchase price is well below the standard as stated by Mr Knight as the range of values for golf course type developments on the Merrimac Flood Plain.  What Paradise Springs has enhancing it is position; such position does not exist in terms of the subject property.  On the other hand, the sale of Arundel Hills is one which I believe cannot be lightly put aside.  It is conceded by both valuers that the site is considerably superior to the subject site.   This is evident in the value applied by Mr Gardiner to the subject land.  Prima facie, the purchase price paid for Arundel Hills seems to be high if regard is had to the selling prices of land on the Merrimac Flood Plain.  In this respect there may be significance in the change of proposed development which has occurred with Arundel Hills, moving from a golf course/group housing development to one of a golf course and Residential A sized lots which I take as directing the marketing of such residential packages towards the permanent resident rather than the recreational/holiday resident as is envisaged in respect of the marketing of the villa units proposed to be put upon the subject land.
           It is clear on the evidence that the Gold Coast Highway frontage of Lot 2 has potential for industrial development of the nature spoken of by the various witnesses.  Mr Gardiner has valued 13 hectares as having this potential.  The usage hoped to be achieved for lands to the west in Millaroo Drive is for hi-tech industrial.  The relevant frontage lies opposite the entrance to Helensvale and Helensvale Plaza which under the 1982 strategic plan is identified as a centre which could develop into an urban/rural regional centre.  The type of use envisaged on the frontage of the subject land is usually found not under the roof of regional centres but rather on the periphery and preferably with access to the front door (parking) and exposure to passing potential trade.  The subject land appears to me on the evidence to possess these ingredients.  Whilst I tend to agree with Mr Knight that the area assessed by Mr Gardiner is so large as to require a period before the land is fully utilised, he did not attempt, as I understand his evidence, to destroy the potential in the area for that purpose.  Nor do I see after hearing the evidence that the extent of the area will impact on the balance land given the design and the provisions made for buffer areas between the two developments.  The influence this potential had in the valuation of Mr Knight is unclear as it is not mentioned in his written valuation.  In considering the value of this component of the site, Mr Gardiner had regard to evidence of five sales.  He said that the sales were used to obtain a range in value.  Briefly the sales cover the purchase of 17.963 hectares in Reedy Creek Road, West Burleigh, of land zoned "Future Urban" but purchased subject to rezoning for light industrial purposes and subdivision by Leda Developments Pty Ltd for a consideration reflecting $217,113 per hectare; the purchase for subdivision of a total area of 16.825 hectares on the corner of Ashmore Road and Harper Street, Nerang, for subdivision and sale for about $277,000 per hectare; the purchase of four lots aggregating 11.88 hectares in Old Coach Road, Nerang, for subdivision into some 41 lots for a consideration reflecting $101,000 per hectare; the purchase of two lots in Siganto Drive, Oxenford, aggregating 9.816 hectares for a consideration reflecting about $320,000 per hectare for subdivision including the provision of a service station and fast food outlet; the purchase of Lot 12 (3.945 hectares) in Millaroo Drive for a consideration of $690,000 or $174,900 per hectare; and the purchase of Lot 3 (3.04 hectares) in Millaroo Drive for $600,000 or $197,000 per hectare.  The first three sales are of better location and on the evidence relatively close to existing industrial areas.  Mr Gardiner regarded the sale in Siganto Drive as a high sale, being also a superior site in his opinion, whilst the sales in Millaroo Drive are of smaller properties and in subdivision as opposed to the subject area being a component of a large parcel for which uses of the balance area conflict with rather than complement.  Nevertheless the potential in the land is one which it appears on the evidence would be considered by the potential purchaser and in that light the question seems to be whether a purchaser would, assuming that he would be prepared to pay say $90,000 to $100,000 per hectare for the resort land, pay a greater value for the land with the potential for light industrial development.  In approaching this question I do not understand the evidence of Mr Gardiner as meaning that but for this potential in the frontage land the resort land would have been worth more or that the converse should apply.  In his report it appears that he has arrived at his overall value by working from the apportionments made.  The relevant considerations in my opinion include the fact that such land is part of an en globo parcel and secondly that a substantial area is involved.  Were the area actually in subdivision it may, having regard to size, fetch a price up to $150,000 per hectare but it is not a separately subdivided parcel of 13 hectares.  The plan put before the Court (Plan SK18B) as being a plan which could be put before potential purchasers at the relevant date and notably Japanese purchasers, does not engender in my opinion thoughts towards a 5-star development proposal or one which is comparable in that context with the developments which have occurred or are proposed to occur with resort type lands on the Merrimac Flood Plain, including the sale which is at the bottom of that market, that is, Paradise Springs.  For these reasons I believe that the purchaser would be looking towards a development of a lesser residential standard and would not be prepared to pay in excess of $90,000 per hectare for the resort/residential land.  Were this value applied overall, a purchase price of $10 million in round figures would be derived.  By giving weight to the potential in the frontage land for industrial uses, I have arrived at a purchase price of $10.5 million.  This represents a value (discounted) of about $120,000 per hectare for 13 hectares of frontage land.  In the circumstances I find that the land before the resumption may reasonably be valued at $10.5 million.
           Figure I shows the land resumed and the location of the proposed Helensvale station.  When Queensland Railways lodged an objection against the town planning application in respect of Lot 2 in 1984, a station was proposed in the north-eastern corner of the site adjoining Lot 1 on RP 110444 and with frontage to the Gold Coast Highway.  When Parliament approved the development in 1985, a station site had been selected north of the Gold Coast Highway and within the Helensvale residential estate.  It was later relocated to the subject land for reasons

-1)of opposition to access being gained to the station through the residential area of Helensvale;

-2)that alternative access from the east was considered unsafe; and

-3)of the possibility of the siting of the station on the subject property being raised by Mr Buckler.

Relocation of the station site was settled and Mr Buckler advised of the position in August 1986.  The area of the station is 8.524 hectares.  It is intended that it will in the course of time provide for the parking of up to 1500 vehicles.  A bus interchange is envisaged.  The line for the most part through Lot 2 will sit upon an embankment.  The poles on which the overhead conductors will be located will be approximately 7 metres high and will be spaced at approximately 60 metres apart immediately alongside the track.  Trains are likely to travel at speeds up to 160kph.  Transit time from Helensvale to the Roma Street Transit Centre in Brisbane is expected to take 50 minutes.  It is expected that trains will run between 5.00 a.m. and midnight with an initial peak of 30 minute frequency.  A passing loop will be provided at Helensvale.  No arrangements have been made between Queensland Railways and the claimants on the purchase or otherwise of the old railway land forming the western boundary of the parcels, more particularly in respect of Lot 2.  The shape of the station area provides for legal access to the station via the old railway reserve.  That part of the resumption has destroyed access by easement (the only legal access) to Sub C.  Such access has not been fully developed and to any person having any planning sense it is obvious that the proposal dealing with access to the station as it stands could be of a temporary nature only.  In reality what is envisaged is that access to the station area (parking area, etc.,) and to the overbridge at 68.540 km will be provided by the developer and when provided, any necessary adjustments to the resumed area by way of road dedication will be made.  Clearly the proposal should be effected jointly and as will be seen shortly, finalisation of such matters is essential to the proper development of the area.
           Approvals covering the areas to 1990 and in train or approved at the date of resumption in February 1989 are -

-1)the area along the Gold Coast Highway frontage and the triangle of land adjacent to the closed railway is zoned "Special Facilities (Commercial and Industrial Centre)";

-2)the resumed land remains zoned "Rural C";

-3)the area of Lot 2 east of the railway is approved for golf course, recreation centre and accommodation units;

-4)Sub C remains with the consent granted in 1982.

The current usage of Lot 2 is for plant nursery and associated landscape supplies - the area which is subject to the Special Facilities zoning is subject to "Earthworks (Filling) in advance of its use for Commercial/Industrial Undertakings" (Mr Bell).  The golf course, as designed and constructed by Mr Bolton on Sub C, remains in its substantially complete state of construction.  Plan SK20 (Exhibit 13) represents a concept of development of the parcels after the resumption.  Following the concept proposed before the resumption (Plan SK18B) the entrance to the estate is opposite Discovery Drive which leads to a roundabout providing entry to the station and the service road and access to the resort/unit areas running beside the resumed land and then swooping around through the small triangular area of 2.348 hectares to cross the railway on the higher ground at point 68.540 from which it would by roundabout provide access to a clubhouse and unit areas on Lot 2 - a 9-hole course and 70 units.  As with the Thomson and Wolveridge plan, no apparent link appears for vehicular or pedestrian access to Sub C.  This part of the boundary between the parcels (about 80 surveyed metres) is depicted as a heavily landscaped area.  The plan in respect of Sub C differs from plan SK18B in that the lake for irrigation has been moved to the south-east, with the motel and carparking, etc., areas being slightly further from the railway and with the 10th hole running parallel with the railway and generally in the position of the former practice tee (to the lake).  To the south of the entry shown on the plan via a crossing coming in from Millaroo Drive there is positioned the practice tee and then recreation facilities such as tennis courts.  Accommodation units are again positioned down both ridges to which access would be got from a roundabout entry after crossing the line from Millaroo Drive.  An access road does not pass through a fairway as was the case with the Thomson and Wolveridge plan.  The course as depicted on SK20 is the one put there by Mr Bolton subsequent to the route the railway would take being finalised in or about February 1986.  It may be taken as a fact whereas as he pointed out the nature of any other developments on this parcel remains at the discretion of the developer including the positioning of the clubhouse.  The area between the 10th fairway and the railway is shown as a heavily landscaped area.  The area of the practice fairway has between it and the railway a road to service the accommodation units on the southern ridge and landscaping.  This plan, when read with the Thomson and Wolveridge plan, sees Sub C as a single development with an entry statement immediately on entering the area over the railway from Millaroo Drive.  Queensland Railways would not oppose an overbridge at this location but is not prepared to contribute to the cost.  This attitude, when considered in terms of the legal access which existed to the site prior to the resumption, is the correct attitude and no submission is made to the contrary by the claimants.  The location of the overbridge at point 68.540 is one agreed to by the parties which, if provided, will service both the eastern severance of Lot 2 and will, if required, restore what was taken from Sub C.  The cost of the overbridge is of the order of $700,000, excluding paving of the roundabout which the developer/claimants will provide in presenting an entry statement at the roundabout.  Access from there to Sub C, assuming that the developer relies upon that access, will parallel the railway.  That of course would have been the position had access prior to the resumption been taken via Sub C.  With the resumption there is less land available for this purpose but in the opinion of Mr Knight it would have had little effect on the positioning of the lake as envisaged in the Thomson and Wolveridge plan.  As the plan stands at present with the course as constructed by Mr Bolton on parameters given to him by Mr Buckler and with knowledge of the existence of the line and the impending resumption, Mr Bolton believes that the 10th tee would have to be replaced.  Frankly, and speaking as a practical person who has had the benefit of viewing the plans and hearing the evidence which has been put before the Court, I would if placed in the position of a developer seriously consider the development of Sub C in isolation to a development of Lot 2 with entry to the area coming from Millaroo Drive.  This will be more apparent as I progress.  A conclusion could reasonably be drawn that this was always the intention of Mr Buckler. It may also be observed at this juncture that the station area is 8.524 hectares and that Queensland Railways is encouraging the development of airspace over stations and the integration of the railway with commercial undertakings.  Whilst not desirous of entering the development scene itself, Queensland Railways "We would be encouraging adjoining land owners or other developers to come in and lease airspace or the land from us.  In the context of Helensvale we were encouraging Mr Buckler to be involved in a development of the railway airspace which seemed to be the way he was intending to go anyway." (Mr Hunter).  There is evidence from Mr Knight that Queensland Railways would be looking for a market rental were airspace leased, although he could not speak conclusively on the point.  Mr Hunter said that Kinhill Cameron McNamara, consulting engineers, have been engaged by Queensland Railways to prepare an impact assessment study for the railway.  The report is currently only at draft stage.  However, on Mr Hunter's perusal of the draft, it indicates that the maximum noise level from the train at full speed (160kmph) is 92bB(A) at 15 metres from the track.  He said that the maximum noise criteria to be adopted by Queensland Railways is 85dB(A) measured one metre from any building facade.  The design and construction of the railway will incorporate noise barriers as recommended by the study.  Landscaping would comprise shrubs and trees where appropriate and if required by the guidelines noise barriers will be erected on the bridge over Coombabah Creek (south of Sub C).  Mr Hunter said that the current planning of the railway is for Stage 1 to Helensvale to be completed in late 1995.  That stage includes provision for 356 carparking bays and 12 kiss-and-ride setdown points with future stage development occurring as patronage increases which could take the form of provision for 10 bus bays and in excess of 1000 cars at grade.

3.I do not accept if access is taken to Sub C through Lot 2 that such access will be far inferior to that which would have been available had this form of access been taken prior to the resumption.

As to the second paragraph, it appears on my appreciation of the concept plans that if Thomson and Wolveridge were followed, this access would be superior in presenting the proposed development for the parcel.

4.The potential for competition from the station area is accepted.

5.I agree with Mr Knight that the resumption would have minimal effect on the positioning of the lake were it to be placed in this location.

6.I accept the evidence of Mr Bolton that the area is limited for golf course purposes.

7.There is some weight in this statement.  On the evidence of Mr Eppell, additional road dedication/costs may be necessary and aspect affected.

8.I find no evidence to support the statement as one affecting value.

9.Access as contemplated may be dedicated.  When done the respondent will dedicate land for the same purpose.

10.I do not accept that the quality of the golf course will be downgraded. 

11.I accept that the standard of accommodation units may be downgraded insofar as Lot 2 only is concerned - the existence and facility offered by the station in conjunction with the uses which might be envisaged for the lands west of the railway together with the evidence of Mr Arbon on the probability of increased density being permitted, leads me towards a conclusion that this area may be best suited for primary dwelling/unit accommodation.

12.I accept this statement subject, however, to what has been said.

13.I do not accept this statement insofar as it relates to the development contemplated for Sub C, given the placement of developments, roads, recreational amenities, etc., within the development.

14.I find that this access was not available as-of-right and is not a matter for compensation.  It would appear to me to be a more practical form of access to the parcel and bearing in mind the evidence of Mr Barrett will not affect the presentation of the parcel for the uses intended.

If I approach the assessment along the lines of the method employed by Mr Gardiner, I would view  -

1.the balance land (commercial/industrial) of Lot 2 (total area 12.859 ha) as having a value as part of a large en globo parcel of $175,000 per ha (depreciated from $200,000 per ha)      =           $2,250,325

2.the balance land of Lot 2 (east of railway) as accommodation unit land with limited golf course potential (a total area of 21.454 ha @ $75,000 per ha)  =           $1,609,050

3.Sub C as having a value of $85,000 per ha

(area 65.0586)  =         $5,529,981

This brings up a sum of $9,389,356 or about $9.4 million in round figures.  As a reflection of value per hectare overall, the rate is abt. $94,500.  The exercise would yield compensation in the sum of $1.1 million.  Mr Knight derived his value after the resumption by reference to the sales of River Link and Coomera Lakes.  These sales were used as bases because of the intended commercial content.  They have, because of that component, a degree of affinity with the subject land both before and after the resumption.  In view of the findings I have made as to enhancement and depreciation, I have more confidence in the result just derived than by attempting to derive an overall sum when vastly different uses are intended.  As it stands, a slight enhancement overall is derived.  Thirdly, it seems reasonable in the circumstances of this case where there is enhancement in value to a part of the land remaining (which is difficult to quantify) and depreciation in value to parts of the land remaining (which is difficult to quantify), to answer the question by posing whether one balances the other.  Were this done, compensation would equate the overall value per hectare of the land taken; that is, 13.5 ha x $93,000 = $1,255,500 or $1,250,000 in market figures.  This being the highest of the sums considered it will be adopted in following normal principles which require the resolution of doubts in favour of the claimants (Commissioner of Succession Duties (S.A.) v. Executor Trustee and Agency Company of South Australia Limited (1947) 74 C.L.R. 358).
           I turn then to the issue of the items of disturbance.
           Under this heading the items of claim are as follows:

.Legal Fees$  1,200.00

.Valuation Fees  $  1,500.00

.          Golf Course Redesign Costs  $ 95,000.00
  .          Road and Culvert (Mr Cozens)  $122,000.00
  .          Fencing  $  4,550.00

The only item in dispute is the third item.  Evidence was given in support of this claim by Mr Bolton.  The evidence of Mr Winders dealing with noise pollution is also relevant.  The sum is made up from costs/moneys expended in the need for a further site inspection, need to present a new routing plan, need to resurvey boundaries of the entire golf course (because the course was no longer to be allowed on the ridges) and to duplicate the statement of the golf course construction schedule.  The work involved and an estimate of apportionment of costs was given by Mr Bolton -

Inspection of site, consultation with client and local

authorities and preparation of routing plan  $ 30,000

Re-survey of golf course land  $ 15,000

Recalculation of details contained in the golf course

construction schedule  $ 50,000

A small version of the Thomson and Wolveridge plan is before the Court (Exhibit 15).  A copy of the golf course construction schedule drawn up by the firm and dated May 1982 is also before the Court (Exhibit 16).  This schedule contains the program of works required, notes and estimates of costs.  Mr Bolton was engaged in 1988.  He had seen the Thomson and Wolveridge plan in the office of Burchill and Partners.  He designed his own golf course on parameters given him by Mr Buckler.  The contract with Mr Bolton (not before the Court) is of a general gross sum type of contract providing for a downpayment and with some works being done by Mr Buckler.  In the opinion of Mr Bolton the works required under the headings claimed could not be done for less.  There is no evidence before the Court to the contrary.  A claim of this nature is payable if the Court is satisfied that the work and expenditure incurred was not too remote and that it was a natural and reasonable consequence of the resumption - Harvey v. Crawley Development Corporation (1957) 1 All.E.R. 504. The causes may include not only the taking of the land but the effect such taking and use has upon the retained land. Factually an area of about 1.1 hectares has been taken from the parcel. In the northern area the strip taken would, in the opinion of Mr Knight, have minimal effect on the lake proposed for the area. With that I agree. This by itself would not call for a redesign of the golf course. Under the instructions given by Mr Buckler, less higher land was made available for the course - clubhouse, etc., and unit areas were pushed further down the ridges and further from the railway. By doing that the impact of noise pollution is lessened and with that, compensation. In the circumstances and in taking a broad minded approach to the matter I will allow the sum claimed.
           Accordingly, compensation under all headings will be determined in the sum of One million, four hundred and seventy-four thousand, two hundred and fifty dollars ($1,474,250).
           Interest on this sum at the rate of 11.75 per centum per annum is ordered to be paid from and including the date of resumption up to and including the day immediately preceding the date such sum is paid.

Member of the Land Court