Buter & Bourke v The Commissioner for Railways
[1989] QLC 13
•9 November 1989
|
BRISBANE.
9th November, 1989.
Re: Claim for Compensation (A88-90)
James Allan Butler and Joan Margaret Bourke
- v -
The Commissioner for Railways
J U D G M E N T
(Hearing in Townsville)
This is a claim for compensation consequent upon the taking under the provisions of the Acquisition of Land Act 1967 - 1986 and the Railways Act 1914 - 1985 of four (4) parcels of land situated in the County of Elphinstone, Parish of Coonambelah, described as Lot 56 on Plan No. EP264 containing 1,543 sq. metres and being the whole of the land described in Certificate of Title, Volume N1068, Folio 249; Lot 3 on Plan No. 702000, containing 830 sq. metres and being the whole of the land described in Certificate of Title No. N12532, Volume 164, Folio 199; Lot 6 on Plan No. T118119 containing 506 sq metres and being the whole of the land described in Certificate of Title No. N5378, Volume 122, Folio 216 and Lot 7 on Plan No. T118119 containing 506 sq. metres and being the whole of the land contained in Certificate of Title, Volume N1068, Folio 248. The land was taken by the Commissioner for Railways for Railway Purposes at Townsville. Notice of resumption was published in the Government Gazette of 10th December, 1988 and this is the date at which compensation is to be determined. Although there are four (4) separate parcels the claimants have lodged one claim to cover all of the land in the sum of $252,100 made up as follows:-
. Land .. .. .. .. .. .. .. .. .. .. .. .. .. .. $250,000
. Disturbance:
Legal Fees .. .. .. .. $ 600
Valuation Fees .. .. $1,500.. .. .. $ 2,100
. Total $252,100
The composite parcel of the four (4) allotments is an irregular shaped parcel with a frontage of about 21.927 metres to Charters Towers Road and 27.912 metres to Bridge Street, Townsville. It has a total area of 3,385 sq metres. It is located about 1.5 kms from the Townsville Post Office almost at the junction of Flinders Street West, Charters Towers Road, Ingham Road and Morris Street. The Townsville Railway Station and Workshops are located on the opposite side of Bridge Street. The main North Coast Railway Line runs along the northern boundary and on the northern side of the railway line is a small triangular parcel of land with a commercial building erected upon it. Adjoining the southern boundary is Portion 164, containing 2051 sq metres. This is a triangular shaped parcel with frontage to Charters Towers Road. A used car business is conducted on this land. The rear boundary of both parcels adjoin an area designated as a drainage reserve which runs to the bank of Ross Creek.
The land is zoned "Commercial" under the relevant Town Plan. Erected upon the land are three buildings of mixed age and construction with very poor presentation. They have been tenanted to various tenants over the years but the rental return is insignificant. The buildings exhibit obsolescence and neither party offers cogent evidence to suggest they add any value to the land. There are four (4) parcels of land involved here, each capable of being sold separately. But again, neither party advances an argument in support of individual sales. They are agreed that, in the market place, a higher figure would be received for the parcel as one site.
Brief evidence was given by the claimant Mr James A. Butler of the history of this land and the buildings upon it which have been owned by his family for some years. He says that, as a child, the area now the used car yard had mangroves growing upon it. When it was subsequently filled storm water drains were constructed underneath the subject land. He speaks of some redevelopment proposals that did not come to fruition. In December 1985 a "For Sale" sign was placed on the frontage of the property. The market was depressed during 1986 and no real attempt was made to dispose of the property. The claimants subsequently made some arrangements for a Surveyor Mr O'Sullivan to investigate the options for a redevelopment. These investigations ceased when they became aware of the possibility of the land being resumed.
The claim is based upon the valuation presented to the Court by Mr M. J. Missingham a Registered Valuer and a Town Planner with Herron Todd White Valuers of Townsville. He says that:-"Townsville's commercial property market experienced a rapid growth period both in terms of properties sold and prices achieved during 1988. The market activity and levels of value appear to have peaked in the December quarter. Whilst the level of activity has fallen during 1989 the level of values appear to have remained fairly constant. Most agents reported steady investor demand during the later period.
Indicative of the market pattern are the resales of the "Eagers" complex on the corner of Sturt, Knapp and Flinders Streets. The 6,071 square metre site contains a modern single level showroom, offices and workshops which sold as follows:-
01.09.87 for $ 700,000
17.06.88 for $ 850,000
03.10.88 for $1,100,000
A commercial sales activity summary is annexed to this report (Annexure 6) which clearly demonstrates the level activity in the commercial market since the March quarter 1987.
The subject property has frontage to the busiest roadway in Townsville. As such, it enjoys an excellent exposure and is clearly visible to approaching traffic from various directions.
The property is well located between Townsville's Central Business area and the suburbs. As such, combined with the exposure available, the site represents an attractive redevelopment proposition suitable for a number of retail/showroom warehousing/service industry uses.
The size of the property is sufficient to enable an economic and physically feasible redevelopment of the site.
Due to the size and the double frontage/access available to the property, the normally negative features such as filling, irregular shape and restricted inbound access can be largely be set aside, even turned to advantage, with prudent redevelopment design and constructed.
As the property is considered to primarily be a redevelopment proposition the most appropriate valuation method is direct comparison with other redevelopment sites in the immediate locality. This approach is then supported by a hypothetical development of the site."
He lists in his written valuation a number of sales and having regard to the sales which he considers are relevant he arrives at a value of the subject land in a filled state suitable for redevelopment at $90 per sq metre for a total of $304,650. From this he deducts the sum of $45,000 for 2,250 cu metres of filling at $20 per cu metre to give a net value of $259,650. To support this conclusion he has also done a valuation on a hypothetical development on the land which shows a land value of $254,000. For practical market purposes he adopts a figure of $250,000. It enjoys a high level of exposure. In Mr Missingham's words "tremendous exposure". He says that the shape of the subject site caused problems when his firm was doing a feasibility study and he conferred with design architects as to how to best utilize the site. The end result has been a single level retail showroom/warehouse building with through site access.
I will firstly deal with his direct comparison approach where he has had regard to certain sales. Relevant sales relied upon by Mr Missingham have all had the same zoning as the subject land. On 27th June, 1988 a 1,766 sq metre parcel of land situated at 41 Charters Towers Road sold for $240,000 ($135 per sq metre) (hereinafter called the Midas sale). This land is situated on the corner of Charters Towers Road and Woolcock Street which are both very busy thoroughfares. There is no parking permitted on Charters Towers Road outside the Midas building with the land closest to the gutter being reserved for vehicles to turn left into Woolcock Street and there is no parking along the frontage in Woolcock Street. Access can be obtained through Smith Street at the rear of the building. Despite these problems Mr Missingham says the sale is in a superior location and has superior exposure and is overall superior to the subject land.
He includes a sale (No. 5 on his schedule of sales) of a 607 sq metre parcel at 5 Woolcock Street on the corner of Church Street which sold in July 1988 for $89,000; another small parcel at 7 Fletcher Street (No. 6) on the corner of Sturt Street was sold on 20th July, 1988 for $75,000 and a 991 sq metre parcel at 133 Ingham Road (No. 7) which sold on 29th September, 1988 for $85,000 but they are listed really to indicate the demand for "Commercial" zoned land at that time. For various reasons expressed by Mr Missingham they do not really form a basic sale for his conclusion on a value for the subject land. He other main basic sale is Sale 9 at 58 - 60 Charters Towers Road which sold in May 1989 for $350,000 ($135 per sq metre). It has an area of 2,590 sq metres and has been developed as a Used Car Saleyard. While it is an after date sale his research of the market indicates to him that it is still a sound guide to value at the date of resumption. He says this land is in a superior location. It has the advantage of rear and side access in Brodie Street. Vehicles can enter Brodie Street from Woolcock Street and drive to the end of that street where it terminates at the sale property. Although Brodie Street extends from this point to Charters Towers Road access to Charters Towers Road is prohibited and vehicles must turn in a roundabout back to Woodcock Street. There is access from Charters Towers Road along the side boundary on Brodie Street.
Mr Missingham also lists a sale (8) of Portion 164 which adjoins the subject land. This 2,051 sq metre parcel sold on 3rd December, 1988 from E.D.C. (Aust) Pty. Ltd. to Quandilla Resources Pty. Ltd. for $150,000 ($73 per sq metre). He says that this sale cannot be relied upon as evidence of value. He says that the parties to the transaction were ex business associates and this land was previously transferred as part of a property exchange deal in June 1986 for $295,000. He says that this sale is out of line with all of the other sales at that time and to accept it would be to reject overall sales evidence.
He adopts a figure of $90 per sq metre based on his sales 4 and 9 and says that with the sales the majority of potential tenants would have an arterial road outlook or exposure whereas in the subject land only one or possibly two would have main road exposure. The inside tenants would have to rely on the viability of the centre which he envisages would be built upon the land. The subject land is a large site in close proximity to the city centre and is an example of a site which can provide through site access with inflow and outflow from both Charters Towers Road and Bridge Street. It has good exposure from Flinders Street West looking down Bridge Street which is quite open. The exposure to inbound traffic on Charters Towers Road and traffic coming inbound on Ingham Road and Morris Street is also an advantage.
The question of ingress and egress to the subject land was a matter much discussed during the course of the hearing. In summary it can be fairly put that a person travelling outbound along Flinders Street West may turn left into Bridge Street and almost immediately cross the railway line by an overline crossing and then turn right into the Bridge Street frontage of the subject land. If that person passed Bridge Street he reaches the intersection of Flinders Street West with Morris Street, Charters Towers Road, and Ingham Road which intersection is controlled by traffic lights and islands. From the left lane he can turn into Charter Towers Road on the appropriate traffic light and then cross the overline crossing which is also controlled by lights as required. The Charters Towers Road frontage of the subject land adjoins the railway reservation in which the railway track is enclosed. There is provision along the frontage of the subject land and the adjoining car yard for the kerb side parking of some vehicles. Coming inbound along Charters Towers Road it is not possible to turn right into the subject land. It is necessary to proceed over the overline crossing and then by one or other circuitous route enter the subject land. There are also difficulties in negotiating access if proceeding inbound on Ingham Road or proceeding south bound in Morris Street.
The exercise which Mr Missingham adopts for his hypothetical development is based on a building suggested by Commercial and Industrial Projects Pty. Ltd. and on the cost of such building by that firm. He has sought the assistance of Ferry Real Estate as to an appropriate rental which could be realised. Mr Missingham says that since the beginning of 1988 he has worked on a number of projects on behalf of clients and financial institutions engaging in feasibility studies of various projects of a commercial retail showroom nature or industrial nature. He says he has been preparing probably two or three of these assessments per month and is in constant touch with rental evidence in the market place, market returns, demand and supply of rental space and demand and supply of these types of properties for sale. In most projects he has to arrive at a value of various vacant parcels of land. Some of the properties referred to in his valuation as sales are properties where he has done the valuation assessment for mortgage security purposes. In the result his exercise reads:-"Rental per annum:
1,550m2 NLA @ $75 average = $116,250
less: non recoverable outings
management $ 5,000
land tax $ 1,500
maintenance $ 2,500 $ 9,000
$107,250
Total Capital Value/Gross Realisation:
capitalised @ market rate 10.75% = $998,000
less: Entrepreneurs Profit @ 15.0 % = $130,000
$868,000
less: Development Costs
filling $ 45,000
landscaping &
hardstand $ 45,000
building
(inc builders profit) $504,000
holding costs $ 20,000 $614,000
Residual Value of Land $254,000"
Evidence was given by Mr Barry F. Mulligan a builder/developer. Mr Mulligan is a Registered Builder and is the Managing Director of Commercial and Industrial Projects Pty. Ltd. He says that the company does undertake some contract work, but in more recent times it has been doing more of its own development work. The Company acquires suitable sites and undertakes commercial developments on these lands. They are sometimes sold off and other times retained as an investment. He estimates that the company has undertaken between 80 and 100 fairly substantial developments in the City of Townsville of retail showroom/warehouse type buildings.
In the subject case he has inspected the land and has designed and costed a development for the land. The concept plan which he tenders shows a low profile showroom/warehouse type development capable of being subdivided into small modules as required. His plan would provide 15 modules of 90 sq metres each and one of about 200 sq metres giving a total floor area of 1,550 sq metres. The building is boomerang shaped constructed along the southern boundary which gives maximum exposure to Flinders Street. Ingress and egress is provided from both Bridge Street and Charters Towers Road. There is provision for 27 on-site car parks with landscaping of the area adjoining the railway line. Provision is made for a conspicuous steel pylon sign fronting Charters Towers Road.
From his inspection of the site he formed the opinion that some fill would be necessary to secure the site against storm water intrusion but this would only be a small amount as there is a good storm water system within the site already but for aesthetic reasons he felt that the site should be elevated and he has made allowance for fill of 2,000 cu metres. He costed the fill with some sundry storm water works such as raising the level of existing manholes and piping to points beyond the actual building line at $45,000. He has estimated the cost of roadworks and landscaping at $45,000. This would include the sealing of the car parking area and the approaches and cross-overs to the two (2) streets. He estimates the cost of construction of the building at $503,750 which includes consultant's fees. He says that the overall cost of $593,750 was a reasonable contract price to allow a reasonable profit for the builder. He estimates that the whole project could be completed in about 20 weeks to the stage where tenants could commence their fitting out. He could not foresee any delays in obtaining the building permit from the Townsville City Council. The planned use is an "as of right" use. In completing his costings Mr Mulligan gained assistance from costs of a project from similar size proportions in the Garbutt area as a guide but has done a separate costing for this project.
In cross-examination Mr. Mulligan says that he was aware of the existence of a significant drain of about 1.4 metres by 1.2 metres which runs under the subject land but the drains were of no concern to him. It would be necessary to bridge any drains that are there but the additional cost would be fairly insignificant. He says that this is a common occurrence in Townsville where old brick drains require bridging. He has made no special allowance in costing in a budget of the magnitude here, but at worst the cost would be something less than $5,000. He has not taken up with the Council any question of access to the site. He agrees that his entrance in Charters Towers Road is close to the railway crossing but is of the opinion that the Local Authority, while it may not particularly like the arrangement, would have no alternative but to accept it as the building is an "as of right use". It was put to him that the Local Authority may require some contribution for sealing the whole of Bridge Street but again he says the proposed use is by right and the authority could not demand a contribution for external roadwork. He says that all that would be submitted would be a straight out application for a building permit and the Local Authority could not impose the conditions suggested. On the question of profit he says that in his estimated costs he has allowed for 10% but would be happy to achieve a profit of 7.5% after allowing 6% for overheads. He says that at present the building industry was operating at between 2.5% and 5% profit.
Evidence was given by Mr Angelo A Castorina a Real Estate Agent and Valuer in the employ of Ferry Real Estate in its Commercial Division. He has been involved in the leasing of properties which have been constructed by Mr Mulligan's company. He has carried out investigations as to the probable rental rate which could be realised for the various shops in the hypothetical development and for the reasons which he sets forth in his written statement he concludes that a rental in the range of $70 to $80 per sq metre would be attained.
Mr Lesley G McGill was called by the respondent. He is a company Director of Quandilla Resources Pty. Ltd. The company trades as City Motors and Les McGill Auto Wholesale. The company owns the car yard adjoining the subject land. He gave the history of the purchase of this land. He says that prior to purchase he had for a period of some 15 months had an association with the vendor, a Mr Eddie Collins whose company EDC (Aust) Pty. Ltd. owned the land at 4 Charters Towers Road. Mr. McGill was involved in that company but resigned in December 1987. Later Mr Collins was visiting Townsville from Brisbane and offered to sell him this land on favourable terms. The contract was entered into the sale at $150,000 with a payment of $100,000 on delivery and the balance of $50,000 within 12 months interest free. He was aware that it had been listed with some Real Estate Agents prior to his purchase at about this figure although he had not actually seen a listing. In his evidence in chief and speaking of the interest free period in the sale he was asked if there was anything else extraordinary about the transaction. In reply he said "No, only that Eddie had made quite a few promises in our relationship, and, unfortunately, when he had a bit of a set back he wasn't able to fulfil those obligations". In cross-examination he says that the balance of $50,000 which was outstanding under the contract was not secured in any way and the arrangement was made "on a hand shake". In cross-examination he was asked, "In relation to the financial difficulties of Mr Collins what happened eventually with his financial situation. What eventually transpired?" Mr McGill replied, "He's the sort of person who seems to fall on his feet. He ended up reversing what happened, the trend, and bought a caravan park in Cairns that since become worth a lot of money. He seems to be pretty happy about things at the moment, I think and so am I." He says that to finance the transaction he borrowed $100,000 from Customs Credit at 17.25%. That company arranged for Herron Todd White Valuers to undertake a valuation for security purposes and he believes that, as far as he can recollect, the valuer valued the land at something over $200,000 and it well may have been for $250,000.
Mr McGill says that after buying the land he cleaned up the site and repaired some broken bits and pieces in the yard and commenced his used car operations. He was asked if he had any discussions with any people perhaps who were interested in buying the property since then. In reply Mr. McGills says, "Down the line a few months after we got it up and running it obviously looked like it was making money and there was an approach from a party in Cairns. I've had a few approaches on it." The approach from Cairns was to buy the land but did not include his business activities. He believes that this occurred in about April 1989. Firstly with a phone call and he advised the caller that, if the party was serious, an offer should be made in writing. He says a signed contract was sent to him for a figure of over $250,000 and thinks the figure was about $270,000. He agrees that his purchase was a favourable transaction. The site suited him and he needed a site for a yard at that time. He says that he was not surprised at the extent of the offer a few months after the purchase. He says that by then he was disposing of 40 units a month. He says that if you can get a business up and running and make it look like it is making money people will want it. If it is empty no one wants the site. He says he believed it has always been a good site, but everyone around town hated it. He says that at the present time there is an informal access through the property next door but he has not used this. It would be of great benefit to him if legal access to the rear of the block was available.
Evidence for the respondent was given by valuer Mr B.M. Englert who was at that time a valuer in the employ of the Valuer-General. In his written valuation he describes the buildings upon the land and concludes that they are generally in poor condition and are not considered to add value to the land. He deals with the question of access in the following words:-"Charters Towers Road is a divided four (4) lane arterial road. The subject property is on the outbound lane side of Charters Towers Road and access to the property is restricted by the railway crossing immediately adjacent, with median strips preventing access by all traffic except outbound local traffic along Flinders Street turning left to Charters Towers Road. Bridge Street is a minor dead end road crossed by the railway line and provides rear access."
In dealing with the highest and best use for the property he says:-
"The buildings on the land are dilapidated, exhibit obsolescence and do not provide an adequate return on capital invested. Because of access difficulties it is difficult to imagine the property being redeveloped with a modern commercial structure capable of attracting market rentals for quality commercial space.
It is considered the highest use of the property is for secondary commercial purposes, perhaps, associated with the railway workshops to the north and/or making use of the Charters Towers Road frontage for advertising purposes."
Based on sales evidence Mr Englert concludes that an appropriate value for the resumed land is $135,000 ($39.88 per sq metre). He lists in his valuation particulars of six (6) sales. His Sale 2 is the sale of the Midas site which has been used by Mr Missingham. He says that this is a prime commercial corner with wide exposure to Charters Towers Road and Woolcock Street, much superior to the subject, better location and much smaller size. His next sale is a sale from Nielson to Australian Medical Centres of a 1,951 sq metre parcel of "General Industrial" zoned land on the Corner of Dalrymple Road and Duckworth Street. This sold on 1st August, 1988 for $73,000 ($37 per sq metre). He says that this is very well exposed, easily accessible site with commercial potential, better location and overall superior to the subject and a sale also common to the valuation of Mr Missingham of a property at 133 Ingham Road from Fenwick to Vyn Brano Pty. Ltd. This was a parcel of 991 sq metres of "Commercial" zoned land which sold on 29th September, 1988 for $85,000 ($86 per sq metre). He says this is a well exposed easily accessible site, much superior to the subject in terms of dollar value rate per sq metre. Area - better location and much smaller site. Having regard to these sales he reached his conclusion on the appropriate value of $39.88 per sq metre to apply to the subject land. He later became aware of the sale on 3rd December, 1988 of the adjoining parcel of land to Quandilla Resources Pty. Ltd. He attributes a value of $15,000 for the improvements on that land to arrive at a land value of $66 per sq metre. He says this is a well exposed wide frontage (68.2 metres) site adjacent to the subject, much superior to subject and in addition terms to purchase may have inflated price. He says that this sale supports the opinion which he had already reached on an appropriate value and that it is probably the best evidence of value of the subject land. The date of sale is almost the same as the date of resumption.
In his oral evidence he enlarges on the matters which were taken into consideration by him in arriving at his conclusion of a value. He saw the site as being of irregular semi boomerang shape with the widest frontage at the back onto Bridge Street. It would be a difficult shaped lot to develop because of its restricted frontage to Charters Towers Road and being located close to the railway crossing. He found it hard to envisage any type of commercial development other than perhaps a workshop use associated with or attracting some business from the nearby railway workshops and perhaps making use of the Charters Towers road frontage for advertising purposes.
He comments upon the proposal advanced for the claimants. He does not believe that the Council would permit the development to proceed with access into Charters Towers Road as indicated. He believes that the Council would endeavour to have all entry and exit by Bridge Street, but, if it could not succeed in this demand, it would require the access to Charters Towers Road at the furtherest extremity from the railway crossing in a position where the proposed building is located. He says that Bridge Street is a substandard street and it would require upgrading and little assistance would be forthcoming from the Council as it would only serve the subject land. He stresses the difficulty of access from the various roads because of the presence of traffic restrictions on turning at certain points.
On the hypothetical development exercise he disagrees with capitalisation rate, the allowance for entrepreneur's profit and to the use of $75 a sq metre for the rental for the lettable area. He believes that the top rate would be $70 per sq metre for that sort of building but he does not believe that this site is suitable for the building and the workshop style building which he envisages would probably attract $50 per sq metre. He is of opinion that the building would not receive the approval of the Council without some concessions being made on access, bridging of the drain and upgrading of Bridge Street.
I place on record that evidence in this matter was taken at a sittings in Townsville on 12th and 13th September, 1989. Due to the restrictions on the time available to the Court having regard to transport difficulties with disruption to air travel, counsel for the parties agreed that they would commit their submissions to writing and forward those submissions to the Court. The last of the submissions was received on 23rd October, 1989 and I have had due regard to the submissions in reaching a conclusion on this matter.
This is a case where there is disagreement between the parties as to the highest and best use for the land. The case for the claimants is that this is an ideal site for a retail showrom/warehouse development with the added attraction of two street frontage allowing ingress and egress from those two streets and with the advantage of being a substantial area in close proximity to the Central Business District. The respondent sees the highest and best use as being for some secondary commercial purpose associated with the railway workshop to the north and making use of the Charters Towers Road frontage for advertising purposes. Mr. Englert sees the site as having great access difficulties with opposition from the Local Authority to the building as proposed. I am in the position where I must adopt one or other of the suggested highest and best uses for the land.
I have for the claimant evidence from Mr. Mulligan who has a wealth of experience in developing sites with buildings for retail showroom/warehouse purposes. He has designed a building which takes advantage of the unusual shape of the subject land making provision for maximum on-site car parking with ingress and egress from two streets and while he was cross-examined on many components of his calculation, I find that this is the best evidence and indeed the only evidence as to the cost of the project and Mr. Missingham could rightly adopt the figures used. The same may be said for the adoption of the rental rate relying on the expertise of Mr. Castorina. Mr. Missingham has completed a hypothetical development exercise relying on the figures supplied from these sources to arrive at a residual value of land $254,000. This gave him comfort that the figure which he has arrived at on a direct comparison basis is the appropriate value to be applied.
It is submitted by counsel for the respondent in support of the evidence given by Mr. Englert that the experts for the claimants are too optimistic in their views of the ease with which this development would be approved by the Local Authority and the submission is that there is no evidence forthcoming from the officers of that Local Authority to support the conclusions reached. I have the evidence of Mr. Mulligan who is well experienced in these matters that this project could proceed "as of right" and the Local Authority could not prevent the proposed entrance and egress in the chosen frontage to Charters Towers Road. He is satisfied that no contribution for upgrading of Bridge Street could be demanded. He is the expert in the field and despite some evidence suggesting he is in error I accept, in the absence of direct evidence, that he has assessed the position correctly. If in fact there are serious impediments to this development that evidence can be adduced in another place.
I find on the evidence that the highest and best use for the subject land within its zoning is for the development of a retail showroom/warehouse building and not for some secondary commercial purpose associated with the Railway Workshops and making use of the Charters Towers Road frontage for advertising purposes. In reaching his conclusion on an appropriate value of $135,000 Mr. Englert views the land for this much inferior purpose. I am of the opinion that in making the comparison with sales it is proper for the Valuer to make the comparison on the basis of the highest use which I have found. Mr. Missingham relies on the Midas sale as at June 1988 his principle basis of valuation which reflects a rate of $135 per sq metres. This was for a 1,766 sq. metre parcel and the same rate was realised in May 1989 for the 2,590 sq. metre parcel in his Sale No. 9. Both of these sales have superior exposure and location and despite the difficulties of access to the frontage of the Midas site they are overall far superior to the subject land. Mr. Missingham sees the comparison as reflecting a value of $90 per square metre for the subject land in a filled state. In his written valuation Mr. Missingham then made an allowance of 2,250 cu metres at $20 per cu metre for fill to give a net land value of $259,650 ($76.70 per sq metre). Counsel for the claimants in his submissions points out that the quantity of fill as estimated by Mr. Mulligan was for 2,000 cu metres at a cost of $19 per cubic metre and he asked that the allowance for filling made by Mr. Missingham be amended to $38,000. This when deducted from the value of the land in its filled state gives a figure of $266,650 ($78.77 per sq metre).
In the ordinary course of events the best of the sales used here would be the sale of the adjoining parcel of land. This sale occurred almost on the resumption date. It is also a large parcel with 2,051 sq metres. It is, in its filled state, superior to the subject land in its longer frontage and exposure to Charters Towers Road. It is inferior in that it does not have through access with double street frontage and exposure to Flinders Street West and associated streets. Mr. Englert sees it as superior to the subject land. This is shown by his application of a rate of $39.88 per sq metre for the subject land against that sale price. Counsel for the respondent submits that this is the best evidence of value while counsel for the claimants says that the evidence of Mr. McGill raises serious doubts as to the reliability of this sale as a basis of comparison. I find on the evidence that there was a business association between the parties in this sale and the evidence suggests that the vendor might have had some financial difficulties which were reversed when he later bought a caravan park in Cairns. Mr. McGill believes that he got the property cheaply and this view is supported by the presentation to him a few months later of a signed contract for a figure of over $250,000. At that stage he had established his used car saleyard. Although the business was not included in the proposed sale he had by his enterprise demonstrated a value for that parcel as a used car yard. I find that this sale should be treated with caution and I prefer the sales which have been applied by Mr. Missingham.
I find that the highest and best use for the land is as advanced by the evidence for the claimants and that on the totality of the evidence the amount claimed is supported by both valuation approaches adopted for the claimants and I will determine compensation in the amount claimed at $250,000. Some argument was advanced concerning the value of the existing improvements but I agree with the valuers that they add nothing to the value of the land for its highest and best use. The parties are agreed in the sum of $2,100 for legal and valuations fees incurred by the claimants up to the date of lodgment of the claim in the Court and the final amount of compensation is $252,100.
I determine the compensation payable by the respondent to the claimants consequent upon the resumption under all heads of claim in the sum of $252,100. I order the respondent to pay to the claimants have interest on the said sum of $252,100 at the rate of 13.75% per annum as and from the tenth day of December, 1988 up to the twentieth day of February, 1989 when the sum of $135,000 was paid by way of advance and thereafter on the balance of $117,100 up to and including the day immediately preceding the date on which payment of compensation is made.
The claimants have been wholly successful in this matter and I find that costs should follow the event. Accordingly I further order in the exercise of the Court's discretionary powers that the respondent pay the claimants' costs of and incidental to this action. The amount of such costs shall be ascertained and fixed by the proper cost taxing officer of the Supreme Court at Brisbane according to the scale of costs prescribed by law for the time being in respect of proceedings in the Supreme Court and in accordance with the provisions of Section 41(9) of the Land Act 1962 - 1988.
President of the Land Court
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