Cox v Chief Executive, Department of Natural Resources
[1998] QLC 141
•17 November 1998
LAND COURT,
BRISBANE
17 November 1998
Re: Claims for Compensation - Resumption for Burdekin River Irrigation Project - Acquisition of Land Act 1967.
Cecil Arthur Cox, Valarie Mary Cox and Lex Howard Cox
v.
Chief Executive, Department of Natural Resources
(A96-25)
Cecil Arthur Cox
v.
Chief Executive, Department of Natural Resources
(A96-26)
Lex Howard Cox
v.
Chief Executive, Department of Natural Resources
(A96-27)
Valarie Mary Cox
v.
Chief Executive, Department of Natural Resources
(A96-29)
James Cyril Cox
v.
Chief Executive, Department of Natural Resources
(A96-28)
(Hearing at Townsville)
J U D G M E N T
Introduction
These matters involve claims for compensation in respect of five (5) parcels of
land held by members of the Cox family and situated to the south of the Bruce
Highway between Giru and Ayr, in the Burdekin District. The lands were resumed
under the provisions of the Acquisition of Land Act 1967 for the purposes of the
Burdekin River Irrigation Project (the Burdekin scheme).
The first claim is for the taking of land owned by Mr Cecil Cox, his wife Mrs
Valarie Cox and their son Mr Lex Cox, described as Lot 44 on Plan GS7, Parish of
Jarvisfield (Lot 44), containing an area of 1817.577 hectares. It was resumed on 22
December 1990.
The second claim is for the taking of land owned by Mr Cecil Cox, described as Lot 42 on Plan GS 148, Parish of Selkirk (Lot 42), containing an area of 1,328.178 hectares. It was resumed on 18 December 1992.
The third claim is for the taking of land owned by Mrs Valarie Cox, described as Lot 43 on Plan GS148, Parish of Selkirk (Lot 43), containing an area of 1,328.178 hectares. It was also resumed on 18 December 1992.
The fourth claim is for the taking of land owned by Mr Lex Cox, described as Lot 5 on Plan GS149, Parish of Barratta (Lot 5), containing an area of 1,781.831 hectares. It was resumed on 5 November 1993.
The fifth claim is for the taking of part of land owned by Mr James Cox, the son of Mr Vivian Henry Cox and the nephew of Mr Cecil Cox, originally described as Lot 15 on Plan GS37, Parish of Jarvisfield, containing an area of 610.569 hectares. It was resurveyed as Lots 1 and 15 on Plan 814658 on 22 May 1991 and Lot 1, containing an area of 344.5 hectares was resumed on 7 September 1991. Lot 15, containing an area of 266.0695 hectares, was retained by Mr Cox. Plan 814658 was registered on 7 April 1992. However, despite the fact that Lot 15 is now the description of the retained land, throughout the hearing of these cases, the resumed land was referred to as “Lot 15”, no doubt as a shortened version of the more correct reference “the land resumed from the original Lot 15 on Plan GS37”. To avoid confusion, I will continue to refer to the resumed land as “Lot 15”.
These matters were heard in Townsville in March and April 1998. The claimants were represented by Mr RM Needham and Mr RS Litster. The respondent was represented by Mr NM Cooke QC and Mr RS Jones.
The Claims
| The original claims for compensation for Lots 44, 42, 43 and 5 were dated 17 March 1995, for the following amounts: | Lot 44 | $ 4,960,000 |
| Lot 42 | $ 3,349,000 | |
| Lot 43 | $ 3,349,000 | |
| Lot 5 | $ 4,324,000 |
The original claim for Lot 15 was dated 31 July 1992, for an amount of
On the first day of hearing, 16 March 1998, the claims were amended as
follows:
Lot 44 $ 2,595,334 Lot 42 and Lot 43 $ 4,202,855 Lot 5 $ 3,032,971 Lot 15 $ 721,348
The claim in respect of Lot 15 was again amended on 27 March 1998, to accord with the altered valuation of the claimants’ valuer, Mr Eales, to $699,400.
The respondent contended for compensation in the following amounts:
Lot 44 $ 1,450,100 Lot 42 $ 691,840 Lot 43 $ 744,180 Lot 5 $ 939,600 Lot 15 $ 372,750
The difference between the parties stems from the approach which they adopted to the highest and best use of the land and the extent to which each of the parcels had potential as irrigable arable land. Before proceeding to consider each of those different approaches, I will outline the background to these cases.
Background
The resumed land originally formed part of a cattle grazing property, which has been owned by members of the Cox family for four generations, since 1887. Towards the end of 1974, the then joint owners of the property, Cecil Arthur Cox and his brother, Vivian Henry Cox, commenced negotiations with a view to partitioning the land. In November 1977, the property was partitioned and certain parcels, including Lots 44, 42, 43 and 5, were transferred to Cecil Arthur Cox and members of his family. Mr Cecil Cox held Lot 44 jointly with his wife, Mrs Valarie Cox, and their son Mr Lex Howard Cox; Mr Cecil Cox held Lot 42 by himself; Lot 43 was held by Mrs Cox; while Lot 5 was held by Mr Lex Cox. The balance of the property was transferred to Mr Vivian Henry Cox and his family, including his sons Geoffrey, David and James, and was held by them in various ownerships, with the land from which Lot 15 was resumed being owned by James.
Up until the time of the redistribution of ownership of the land, the property had been used for grazing cattle, but members of the family realised that the land had potential for growing sugar cane and set about developing parts of it for agriculture. However, the balance of the property continued to be used for grazing cattle.
At that time, most of the cane in the Burdekin district was grown on light levee soils in the Burdekin delta area, as the heavy cracking clays, or Barratta clays, of which the Cox lands largely consisted, were not regarded as suitable for cane growing. However, at the time of transfer of the lands to the various family members, it was intended to progressively develop those lands for agriculture.
In addition to the subject lands, Mr Cecil Cox and Mr Vivian Cox also owned a cane farm of approximately 100 hectares in the Kalamia area, known as “Millview”. In June 1973 that property was transferred to Mr Cecil Cox, Mrs Valarie Cox, and Mr Lex Cox. It continued to be leased to various tenants until 1978, when Mr Lex Cox took over its management and operated it in partnership with his parents.
It became apparent to Mr Lex Cox that the subject lands were superior to “Millview” for the growing of sugar cane. The land in the Kalamia area was broken in nature and of poorer soil quality, the light sandy soils required more water and were, therefore, less economic to farm than the Barratta clays.
At the time of the redistribution of the Cox lands to the various family members, Lot 574, Parish of Jarvisfield (Lot 574), of 64.75 hectares, which adjoined Lot 44 to the east, and situated within the North Burdekin Water Board area, was transferred to Mrs Valarie Cox. At that time it was leased to a rice grower.
The owners of “Millview” intended to transfer their cane farming operations to Lot 574 and then onto Lot 44. However, they faced a number of difficulties. The cane land on “Millview” was assigned to the Kalamia Mill, while Lot 574 and the subject lands, although having no assignments, were in the Pioneer Mill area and the Invicta Mill area. At that time, peaks and assignments attached to the lands to which they were granted and could not be substituted and transferred as of right. Furthermore, the Regulation of Sugar Cane Prices Act prevented transfers between mill areas, except in extreme circumstances.
In 1986 the regulation of peaks and assignments was freed-up to some extent, so that peak and assignment could be purchased independently of land. By the end of 1987, they had purchased 2,000 tonnes of peak and approximately 20.4 hectares of assignment and relocated it to Lot 574. However, their 1989 application to substitute part of the “Millview” assignment to Lot 44 was not approved, but in that same year the sugar industry was further deregulated to allow roaming between mill areas. This enabled them to plant part of the “Millview” assignment on Lot 44 in September 1989. By the time of the resumption of Lot 44 in December 1990, approximately 20 hectares of it were planted up to sugar cane.
In March 1988, the owners applied to the Water Resources Commission (WRC), the predecessor of the Department of Natural Resources (DNR), for an irrigation bore licence to grow cane on Lot 44. That application was granted in accordance with the WRC groundwater allocation policy for 0.25 megalitres per hectare, with an entitlement of 454 megalitres. Their intention had been to use Lot 44 for the peak and assignment which they had purchased, but which circumstances had made it more appropriate to locate on Lot 574. In addition, part of Lot 574 had been leased to a neighbour for cane growing.
During this period, the family of Mr Vivian Cox had also been active in the development of their land for cane farming and in planning the means by which irrigation water could be obtained. It was clear that the progress of the development of all of the Cox land for sugar cane growing was dependent upon the availability of irrigation water.
All this development took place under the threat of resumption. From the time of publication of an Order in Council on 12 April 1980, the subject lands had been included within the Burdekin River Irrigation Area (BRIA) and therefore likely to be resumed. The lands owned by Mr Vivian Cox and his family were similarly affected and on 5 May 1990 and subsequently, over 3,700 hectares of land owned by Mr Vivian Cox was resumed. Claims for compensation for approximately $10.4 million were heard by the Land Court and on 17 July 1995, judgment was delivered in the matter of VH Cox v. Water Resources Commission (not yet reported), determining compensation at $4,960,400. Both parties appealed to the Land Appeal Court and on 21 August 1997, that Court delivered a judgment in the matter of Water Resources Commission v. VH Cox (not yet reported), determining compensation at $4,300,400. The judgments of the Land Court and Land Appeal Court will be referred to as “the Davco decision”.
“Davco” is derived from the name given to a private irrigation project called the Davco Irrigation Project (the Davco project), devised by Mr David Cox (the son of Vivian Henry Cox), for the development of the Cox family lands as irrigated cane land. The Burdekin scheme prevented the Davco project from proceeding as planned. The whole matter was discussed in detail in the Davco decision and that degree of detail need not be repeated here. However, because of the importance of the Davco case to the present cases, it is necessary to briefly outline the main features of the Davco project.
The Davco Project Davco project. Mr Lex Cox explained that his cousin, David Cox, had approached his father and himself in 1977, suggesting that he (David) would be financing the project by selling property as he went and that Cecil and Lex Cox should pay him in land, rather than money. He said that David believed there was sufficient water for the Davco project to extend right through to the Bruce Highway. However, they all realised that the benefit would not accrue to the subject land for some time, so David opted to take a loan of funds to offset his development costs. Loans were made by Cecil Cox to David Cox from 1977 and have all been repaid.
Essentially the Davco project was a private irrigation scheme devised by Mr
David Cox for the growing of sugar cane on his own land, that of his family and the
land of neighbouring farmers. The project commenced in 1977 and was modified
over the years with changes in circumstances. It involved the conjunctive use of
water resources, a series of drains which exploited the natural drainage of the land in
such a way as to utilise run-off water and tail water from irrigation, together with
water pumped from the Burdekin River to recharge underground water supplies.
It was described by David Cox in the Davco case as “... a carefully planned
privately funded self-sufficient integrated system of water harvesting, storage and
distribution with infrastructure to legally harness, store and reticulate water from the
Burdekin River, the underground aquifer, natural rainfall and topographical runoff for
use on lands owned by the Cox family and others. The project comprises a system of
conduits, channels, drains, pipes, culverts, pumps and storage cells to distribute the
water to and over the lands. The project was designed by me with sufficient capacity
to supply peak irrigation requirements to the whole of the land for the growing of
sugar cane on that land.”
Support and financial assistance for the project were provided by members of
the Cox family, but it was largely financed by developing, subdividing and selling
part of their land. During 1978 and 1979, development work proceeded on the Davco
main channel, preliminary work on the pump stations and pipe systems were carried
out, consents obtained and a licence to pump 1,200 megalitres per annum from the
Burdekin River was granted.
However, with the announcement of the Burdekin scheme in April 1980, the
Cox family was prevented from proceeding with the development of their land by
financing that development by the subdivision and sale of part of it. However,
development continued on the Davco main channel, because David Cox was not
convinced that the Burdekin scheme would proceed. As explained in the Davco
decision, he spent a considerable amount of time and effort trying to limit the impact
of the Burdekin scheme on his farm and his project.
The Davco project plan was continually modified as circumstances changed.
With the announcement of the Burdekin scheme and the inclusion of his land, that of
his family, and that of all potential beneficiaries of the Davco project in the BRIA,
subdivision of any of those lands would be allowed only with the approval of the
WRC. Such approval would be unlikely, as the land was required for the Burdekin
scheme. In addition, from the time of that announcement, the lands of all potential
users of water from the Davco project, including the subject lands, were under threat
of resumption.
Development of the Davco project in a modified form continued from 1984 to
1986, but it was realised that the construction of the Burdekin Dam and the supply of
channel water to the BRIA, was going to profoundly affect the project.
The Resumed Lands exception of part of Lot 44 and Lot 15, was being used for the grazing of cattle by the Kalamia Plains Pastoral Company, a partnership comprising Vivian Henry Cox and his son, Geoffrey Cox, which ran cattle over an aggregation of family lands, a large proportion of which was resumed for the purposes of the Burdekin scheme.
Mr Geoffrey Cox explained that they used Lot 44 for breeding, whilst Lots 42 and 43 were used for growing steers and Lot 5 was used for fattening bullocks. He regarded Lot 44, which comprised heavy Barratta clays, as being very similar to the lands of Vivian Henry Cox, which were the subject of the Davco case. Lots 42 and 43 comprised soils ranging from heavy clays suitable for agriculture, through to river silts and creek overflows, which were better drained. Lot 5 comprised areas of heavy clay soils, but the balance of it was what Mr Cox described as “broken sandier and siltier creek banks, well drained and suitable for fattening bullocks”. Para grass was successfully introduced into the reliable swamps on Lots 42, 43 and 5, but was not successful on Lot 44. Three stockwater dams were constructed on Lot 5, but only one was really successful.
There was little dispute between the valuers for the parties about the description of the resumed lands. Where there were significant differences, I have so indicated in the following discussion of each of the lots. There was also very little difference between the soils experts as to the areas of land on each lot suitable for development for furrow irrigation of sugar cane. Where they have differed, I have adopted the greater area.
Lot 44 comprises level to gently undulating forest country, which in its original state was moderately timbered with poplar gum, Moreton Bay ash and tea- tree. The soils are predominantly Barratta clays, with smaller areas of clay loams and some sandy loams. Some 1470 hectares were considered to be suitable for development for furrow irrigation of sugar cane.
At the date of resumption (22 December 1990), approximately 45 hectares had been cleared to cultivation, 20 hectares of which was growing irrigated sugar cane. Approximately 575 hectares had been cleared and burnt and was carrying light regrowth, while a further 20 hectares (according to the respondent’s valuer) had been pulled, but was carrying regrowth.
An equipped irrigation bore with electricity connected, was situated near the southern boundary, with a waterworks licence with a nominal allocation of 454 megalitres to supply Lot 44. There was also a small earth dam.
Lot 44 is situated about 15 kms south-west of Ayr, with access at the date of resumption by means of the formed gravel Sexton Road. There was a mill tramline siding approximately 2.5kms from the property boundary on Sexton Road. A tramline easement had been granted to the Pioneer Mill on land immediately to the south.
Lot 42 is level to gently undulating forest country, broken by a number of watercourses, with seasonally flood prone frontage to Barratta Creek on the east. It was originally timbered with poplar gum, Moreton Bay ash and tea-tree. The main soil types are Barratta clays, with areas of clay loam and areas of sandy loam. Some 961 hectares were considered to be suitable for furrow irrigation of sugar cane.
At the date of resumption (18 December 1992), about 41 hectares had been pulled, carrying moderate to heavy regrowth, with a further 15 hectares cleared to grass.
A waterworks licence with a nominal allocation of 332 megalitres had been granted to supply Lot 42, but had not been acted upon and there were no irrigation bores on Lot 42 at the date of resumption. Stock water consisted of three excavations or small earth dams.
Lot 42 is situated about 28 kms west of Ayr, with access at the date of resumption by means of 2 kms of formed gravel road, or track, to the Bruce Highway. A mill tramline was located 6 kms from the north-west corner.
Lot 43 is level to gently undulating/sloping forest country, broken by a number of watercourses, with seasonal flood-prone frontage to Barratta Creek. It was originally timbered with poplar gum, Moreton Bay ash and tea-tree. The main soil types are Barratta clays and clay loams, with some sandy loam. Some 1019 hectares were considered to be suitable for furrow irrigation of sugar cane.
At the date of resumption (18 December 1992), approximately 159 hectares had been pulled, with moderate to heavy regrowth and 6 hectares had been cleared to grass.
An application for a waterworks licence had been made in July 1990, but it does not seem to have been granted or refused. In accordance with the respondent’s groundwater allocation policy of 0.25 megalitres per hectare, Lot 43 would have been entitled to a nominal allocation of 332 megalitres per annum. Stock water consisted of two dams/excavations and one equipped bore, licensed for stock water.
Lot 43 is situated about 30 kms west of Ayr, with access at the date of resumption to the Bruce Highway by means of 4 kms of bush track. A mill tramline was located about 4 kms from the south-west corner.
Lot 5 is level to gently undulating to gently sloping forest country, broken by a number of watercourses, with seasonal flood-prone frontage to Barratta Creek on the east. It was originally timbered with poplar gum, Moreton Bay ash, tea-tree and some beefwood. Soil types vary from Barratta clays to clay loams, to loamy sands and sandy loams, some alluvial soils and swampy areas. It was considered by all relevant witnesses to be good grazing and fattening country. Some 1259 hectares were considered to be suitable for furrow irrigation of sugar cane.
At the date of resumption (5 November 1993), about 78 hectares had been pulled and, according to the respondent’s valuer, part stick-raked and burnt with moderate to heavy regrowth, while the claimants’ valuer said it had light regrowth.
An application for a waterworks licence to irrigate sugar cane had been made in July 1990, but it seems this had been neither granted nor refused. In accordance with the groundwater allocation policy of 0.25 megalitres per hectare, Lot 5 would have been entitled to a nominal allocation of 445 megalitres per annum. Stock water consisted of a concrete well and three earth dams.
Lot 5 is situated about 32 kms south-west of Ayr, with access at the date of resumption by means of 7 kms of bush track to the Bruce Highway, or about 1.5 kms of track to Up-River Road to the west.
Lot 15 comprises generally level, lightly to moderately timbered forest country, originally timbered with poplar gum, Moreton Bay ash and tea-tree, particularly in a flood-prone area to the north-east. The soils are predominantly Barratta clays and clay loams. Some 311 hectares were considered to be suitable for furrow irrigation of sugar cane. At the date of resumption (7 September 1991), approximately 256 hectares had been cleared, stick-raked and burnt, with light regrowth (according to the claimants’ valuer) or pushed, stacked and burnt (according to the respondent’s valuer).
Lot 15 was subject to two easements in favour of the Ayr (later Burdekin) Shire Council for water storage conservation diversion and ancillary purposes. These easements are in the south-eastern corner of the resumed land, but neither valuer has mentioned them as affecting its value.
At the date of resumption, there was an irrigation bore on the unresumed part of Lot 15, the waterworks licence for which provided for a nominal allocation of 153 megalitres per annum. However, it seems to be agreed that only 87 megalitres of this is attributable to the resumed land, while the balance 66 megalitres is attributable to the unresumed part.
A Water Board channel is constructed in the north-east corner of Lot 15, but no irrigation water is available, as the subject land is outside the Water Board area. Stock water supplies were permitted, but the Board bylaws prevented irrigation supplies being available to the subject land.
An area of 122.8 hectares of the resumed land had been leased to an adjoining owner, Mr G.O. Poli, from 14 May 1990 to 31 December 1994, for the purpose of growing sugar cane. The lease was terminated by the resumption, but it seems that Mr Poli arranged to grow cane on part of the retained land, which he subsequently purchased. There was evidence that as a temporary measure, Mr Poli was permitted to use NBWB water.
There was also a stockwater bore on the resumed land and a small dam.
Lot 15 is situated about 12 kms south-west of Brandon and about 18 kms south-west of Ayr. Access at the date of resumption was by means of about 2 kms of gravel and bush track to a bitumen road. A mill tramline was located about 1.5 kms away.
The Effect of the Burdekin Scheme that any effect that the Burdekin scheme had on the value of the claimants’ lands must be disregarded in determining compensation, in accordance with the principles in
Pointe Gourde Quarrying and Transport Co Ltd v. Sub-Intendent of Crown Lands
Melwood Units Pty Ltd v. Commissioner of Main Roads Woollams could be extended to include the assumption of the successful completion of a private irrigation scheme. The Land Appeal Court upheld that finding and went on to state at page 7 of its judgment:
[1947] AC 565 and [1979]
AC 426.
As in the Davco case, that gave the whole proceedings a sense of unreality,
because much of the evidence and argument was directed not at what has happened,
but what would have happened if there had not been a Burdekin Dam and the
resulting Burdekin scheme.
In the Davco case, the claimants contended that the value of the resumed land
had been depreciated by the Burdekin scheme, while the respondent contended that
the scheme had enhanced its value. The Court found that the proclamation of the
Davco land as part of the BRIA in 1980 had prevented the Cox family from financing
the development of their land by the subdivision and sale of part of it. The Court also
found that the evidence did not establish that the Davco project would have been
successful, nor did it prove that it would not. There was simply too much doubt about
its technical feasibility and its financial viability. The best that could be said was that
it might have been successful.
Therefore, the Court could not make any finding as to how far the Davco
project would have progressed by the date of resumption, if there had been no
Burdekin scheme. It found that it could not be said that, but for the Burdekin scheme,
the Davco project would have been completed.
In that case, the claimant contended that the Court must find that at the date of
resumption the resumed land would have had irrigation water provided by the Davco
project. The claimant relied for that contention on the decision of Hardie J. of the
Land and Valuation Court of New South Wales in Woollams v. The Minister (1957) 2
LGRA 338, which concerned compensation payable for land resumed for the
construction of the Warragamba Dam. In that case, Hardie J. assumed that if it had
not been for the announcement of that scheme, the amenities and economic and social
conditions in the area would have improved and not deteriorated in the period
between the decision of the resuming authority to proceed with the dam project and
the date of resumption.
“ These are, however, different times, and we see no justification for extending such an assumption-making process to a case concerned with the sugar industry in Queensland from April 1980 to May 1990, and more particularly with the possible completion of the private irrigation scheme undertaken by people unable to finance it from their own resources and dependent upon the approval of regulatory authorities. Such a process is no proper substitute for evidence from which reasonable inferences may be drawn. ”
However, the Land Court did assume that there would have been an expansion in the sugar industry, a tramway would have been constructed and the values of irrigated cane land and land with that potential, would have increased in value.
The Land Appeal Court endorsed the approach of the Land Court in finding that part of the resumed land which was suitable for cane growing could be irrigated in accordance with the then existing WRC groundwater allocation policy of 0.25 megalitres per hectare and that such land would be selling for prices higher than were being achieved for irrigated land at the BRIA auction sales at the date of resumption.
It also endorsed the finding of the Land Court that a prudent purchaser would have paid something extra for the remaining land which was suitable for the growing of cane, because of the possibility that the Davco project would have provided irrigation water to that land at some time in the future.
After re-examining the evidence, the Land Appeal Court affirmed the value of $6,000 per hectare determined by the Land Court for irrigable arable land. However, while agreeing that the evidence supported the Land Court’s finding that a hypothetical prudent purchaser would have paid some premium for dry arable land with potential for sugar cane growing for the benefit that might flow from the Davco project, the Land Appeal Court was persuaded that the assessment of $2,000 per hectare by the Land Court was more generous than justified on the evidence. It considered that $1,700 per hectare was more appropriate.
| The Land Court’s determination of $400 per hectare for the grazing land was In the present cases, both the parties relied on the Davco decision, as endorsed | not challenged on appeal. it was in existence when he arrived in the Burdekin district in 1987, and he felt that it was related to rainfall infiltration of 25 millimetres per annum. |
Mr Leach provided the following summary of the entitlement of each of the
subject lands:
Lot 44 - Entitlement 454 megalitres; licence granted and bore constructed;
Lot 42 - Entitlement 332 megalitres; licence granted, but no bore constructed;
Lot 43 - Potential entitlement 332 megalitres; application for licence, but no
bore constructed;
Lot 5 - Potential entitlement 445 megalitres; application for licence, but no
bore constructed.
Lot 15 - Entitlement 87 megalitres; application for licence, but no bore
constructed on resumed land.
Mr Leach went on to explain that if the claimants had applied for additional allocation over and above 0.25 megalitres per hectare per annum, under the provisions of section 4.18(1)(b) of the Water Resources Act 1989, the Chief Executive must have caused inquiry to be made into:
•
the availability and sufficiency of groundwater to satisfy the requirements of existing licensees and the applicant;
• the effect the granting of the licence would have on others; and • any other matters the Chief Executive thinks fit.
In Mr Leach’s opinion, the Chief Executive’s foremost responsibility was to
preserve the right of existing licensees and as far as practicable, to maintain equity in the management of the groundwater resource when granting, modifying or refusing applications for additional bores.
Mr Leach had examined the results of Departmental investigation drilling prior to 1987. Since that date he had personally overseen such investigation. His evidence provided an insight as to what his attitude would have been as the officer responsible for implementing the groundwater allocation policy in the Burdekin district.
Mr Leach was of the opinion that the Department must take into account the fact that underground water may not become available for several years after rainfall, depending on the permeability of the aquifer and the water table gradient. It may undergo changes in chemistry as it permeates through the aquifer.
He advanced the following propositions:
Because of the extensive clay blanket of the Burdekin Plain, the downward
percolation of rainfall is impeded and the full response may not be observed for up to eight to twelve months. Most of the recharge is derived from rainfall and only a little more than 2.5% of average rainfall may reach the aquifer. Some recharge can occur as seepage from beds or banks of rivers, but because the Burdekin River is incised below the level of the plain, only limited recharge may reach the aquifer as seepage during periods of high river flow. Water levels east of the Barratta Creek show only minor water level response following rainfall; it has a thin bed of clayey sand overlying clay which would severely impede recharge and only limited recharge could occur. The long-term average recharge from rainfall is a little over 25 millimetres per year, equivalent to an extraction rate of 0.25 megalitres per hectare per year.
Mr Leach explained that departmental monitoring had shown that water quality had degraded in some areas due to over-use of ground water. There had been a problem in the Mona Park area in the late-1970s into the 1980s and in the Giru area in 1987, following which, as a temporary arrangement, farmers were allowed to grow cane in the Horseshoe Lagoon area, which also resulted in groundwater quality problems, and in the Red Lily area. Those problems will be resolved with the introduction of BRIA water. However, it seems to be accepted that water quality beneath the subject lands is generally satisfactory, except for the south-east corner of Lot 15, where it is marginal for irrigation. To the north of the subject lands the salt water wedge is located in the vicinity of the Bruce Highway, with the potential for salt water intrusion with any lowering of the water table.
Mr Leach’s conclusions regarding water availability were that:
• groundwater is of limited quantity due to limited recharge; •
the allocation policy of 0.25 megalitres per hectare per year attempts to balance licensed extraction with long-term recharge, to protect the rights of existing users and maintain groundwater levels and quality;
•
the natural groundwater resource was unable to sustain any further extraction without lowering water tables during dry years and causing further deterioration of water quality.
•
Water quality problems had occurred in the Mona Park, Giru, Horseshoe Lagoon and Red Lily areas as a result of overpumping and will be resolved only with BRIA water.
In 1983, the WRC had commissioned Australian Groundwater Consultants Pty Ltd (AGC) to study the groundwater resources in the Mona Park/Barratta Creek area. The WRC had received an application for extraction of groundwater for irrigated farming (perhaps by members of the Cox family) and was concerned that if it was granted, other applications would follow.
It seems that the officers of the WRC felt that the AGC report confirmed the Department’s groundwater allocation policy of 0.25 megalitres per hectare per annum. However, the AGC report was not an assessment of the safe yield of the aquifer, or of the rate at which pumping could safely be permitted.
AGC was given various options by the WRC for the extraction of groundwater
and asked to report on the probable consequences of adopting each of those options.
Its conclusions relevantly were:
• that extraction from areas “A” (where the Davco lands are situated) and “B” (where the subject lands are situated) together, according to the policy of 0.25 megalitres per hectare per year, would have only moderate effect on groundwater levels in then present irrigation areas (Mona Park) and at the coast; it was unlikely to have a detrimental effect on then current users; • that an extraction of 2 megalitres per hectare per year over areas “A” and “B”, although unlikely to cause an ingress of salt water intrusion, would have a detrimental effect upon the then present irrigation by decreasing water levels in those areas; • that full extraction (8 megalitres per hectare per year) from either or both areas “A” and “B” simultaneously, could not be sustained for more than twelve months without having a dramatic effect upon water levels in then present irrigation areas. Salt water intrusion problems would be caused by these pumping rates after five years.
According to Mr Leach, an earlier report by Coffey and Hollingsworth Pty Ltd on the possibility of additional availability, also concurred with an assessment made by the Department. However, the 1975 report by Coffey and Hollingsworth Pty Ltd did not address the question of a groundwater allocation policy of 0.25 megalitres per hectare, but was concerned with other matters. In Mr Leach’s opinion it would have been inappropriate to have granted more than 0.25 megalitres per hectare because there was poor quality groundwater to the south and east of the subject lands, while to the north and north-east, salt water intrusion would have occurred if additional allocations in excess of 0.25 megalitres per hectare had been granted.
According to Mr Leach, further and ongoing studies by the DNR of the effect of irrigation from the Burdekin scheme on groundwater are continuing. They have shown that while there may be minor accessions of between 50 and 75 millimetres per year to the groundwater storage resulting from the deep percolation of irrigation waters from the scheme, there will also be additions of salts to the groundwater storage. He thought that some additional use of this enhanced groundwater may then be possible in areas of suitable and stable groundwater quality, such as adjacent to Barratta Creek. However, he warned that without prudent management of existing salinity levels during this period of transition, it would not eventuate.
In Mr Leach’s opinion, the WRC allocation policy was appropriate to control the effects on other licensees. Although the full entitlement of 0.25 megalitres per hectare per year had not been sought in respect of all of the subject lands, he thought that it was likely to have been granted, as it would have had little effect on existing licensees.
The Polletti Line - The Polletti Line takes its name from a line of bores drilled in the early 1970s from the Red Lily area in the east to the Haughton River in the west, which ran along the southern boundaries of Lots 42 and 44. It seems that the WRC considered that it was unsafe to grant groundwater pumping licences for irrigation purposes north of the Polletti Line. However, it seemed to be accepted that irrigation bores located close to the southern boundaries of Lots 42 and 44 could be used to supply irrigation water to those lots.
Quite contrary to that policy, however, in February 1980 a waterworks licence was issued to the Hoeys equivalent to 6 megalitres per hectare per annum, in respect of their land situated to the north of Lot 44 and therefore well north of the Polletti Line.
Much of the claimants’ case was directed at endeavouring to demonstrate that the respondent’s groundwater allocation policy was far too conservative and that, if there had been no Burdekin scheme, it would have been changed to allow groundwater extraction at the rate of 2 megalitres per hectare per annum.
However, before considering the evidence of the various experts in relation to the water resources available in the aquifer beneath the subject lands, it is necessary to deal with some other matters.
The North Burdekin Water Board (NBWB) of expansion of the NBWB area to include parts of Lots 44 and 5. Therefore, it is not likely that a prudent purchaser would pay more for that possibility. The best that can be said is that Lot 44 in particular, is well situated to benefit from recharge from percolated irrigation water from the NBWB area.
The subject lands are all outside the NBWB area, but it abuts the northern and
part of its eastern boundary of Lot 15, and the eastern boundary of Lot 44. Part of the
claimants’ case was that without the Burdekin Dam, there would have been an
expansion of the NBWB area to include at least part of those lands. It is therefore
necessary to consider the validity of that proposition.
The NBWB was established in 1965 as the result of pressure by farmers for
the establishment of water conservation measures and improvement to the availability
of groundwater in the area. The Board consisted of eight members, comprising two
cane growers’ representatives from each of the Kalamia and Pioneer Mill areas, a
representative from each of those mills, a representative of the Burdekin Shire
Council and a representative from the then Irrigation and Water Supply Commission
(the predecessor of the WRC). The Board’s operations were financed by levies on
farmers and mill owners and by way of Government grants and subsidies.
The original charter of the Board was to improve the replenishment of
underground water supplies in the Board’s area, so as to ensure the continued
availability of water to existing farms and to enable expansion of cane farming
operations. The Board’s area is in respect of a locality referred to as “the delta”, on
the north side of the Burdekin River, running north from near Mount Kelly. That area
comprised most of the cane growing lands north of the river prior to the Burdekin
scheme and it seems that the NBWB area was intended to include those lands with
cane assignments.
There is also a South Burdekin Water Board (SBWB), south of the Burdekin
River, but apart from the fact that some of the sales used by the valuer for the
claimants are in that area, the SBWB has no relevance to these cases.
In keeping with its charter, the NBWB developed and carried out many
separate schemes and was very successful in improving the availability of
underground water to allow for considerable expansion of cane growing within its
area. The Board pumped water from the Burdekin River directly into natural and
artificial recharge areas in order to recharge the aquifer. Although there is a variety of
soils in the delta area, the majority of the area comprises highly permeable alluvial
soils. Prior to the availability of BRIA water, irrigation in the NBWB area was
mainly by pumping from underground supplies.
The construction of the Burdekin Dam gave the Board a year round pumping
capacity. However, before the construction of the dam, supplies of water for recharge
purposes were obtained by pumping from the Burdekin River while it was running.
To extend the period during which water could be pumped from the river, the Board
constructed sand dams to retain water, allowing pumping to continue long after the
river had stopped flowing. Despite these measures, the amount of water available to
the Board for recharge purposes was limited and this in turn limited the amount of
expansion of irrigation in its area.
In July 1974, during a period of expansion in the sugar industry, the Board
extended its area to include Portion 40V, Portion 27, Portion 564 and other lands
which were immediately to the north of Lot 15 and to the east of Lot 44. However,
there is evidence that those lands were included, not as part of a general expansion of
the NBWB area, but because they were assigned lands which were inadvertently
omitted from the Board’s area in the first place.
Evidence relating to the NBWB was given by Mr FG Kelly, who was called
by the claimants. Mr Kelly had been farming in the Burdekin District for more than
50 years and had been a member of the NBWB for about 12 years, between 1977 and
1989. He explained that during his time on the Board, there were several schemes
which would have the effect of improving the availability of underground water in the
general vicinity of the eastern boundary of Lot 44. In particular, he referred to the
“Waterview Scheme”, where a number of alternatives were considered, the basic
intention of which was to introduce water into the aquifer to improve the availability
of water to farmers who were running short of underground water. Eventually, the
only scheme that proceeded was the pumping of water into “The Sandpit” located on
Portion 55. However, that scheme was implemented only three or four years ago,
after the construction of the Burdekin Dam, when the Board’s water availability
difficulties had been solved.
There was also the “Red Lily Scheme”, which involved the pumping or
diverting of water from Sheep Station Creek into Red Lily Lagoon and then by means
of an open channel, thereby allowing approximately six growers in Portion 40V to
augment their underground supplies by use of surface water from the channel. That
scheme was implemented in late 1988, again after construction of the Burdekin Dam.
However, prior to the implementation of the Red Lily scheme, there was a
temporary arrangement for water to be pumped from Sheep Station Creek into Red
Lily Lagoon. That scheme was further extended by the construction of an open
channel from Red Lily Lagoon to Corica Road, where it joined an agricultural drain
which had been constructed by the Burdekin Shire Council. That allowed, as Mr
Kelly put it, “a considerable additional number of farmers to access the water...” Mr
Kelly stated that while he was a member of the Board, there was an emphasis on
pushing water into the northern areas to recharge the aquifer in that location.
Mr Kelly explained that farmers in the NBWB paid for water on the basis of
the crop produced, rather than the quantity of water used, which was the basis of
payment for water in the BRIA. It was an offence for water from the NBWB area to
be used on land outside that area.
In Mr Kelly’s opinion, if there had been no Burdekin Dam, with the expansion
of the sugar industry, the NBWB would have actively promoted the extension of its
area to include land that was suitable for cane growing outside its designated area.
That had happened in 1974 with the inclusion of Portion 40V and other lands. He
acknowledged that initially expansion would have taken place on suitable lands
within the NBWB area, but the expansion in the late-1980s and early-1990s would
have required development of lands outside the Board’s area. He believed that the
sugar industry, both millers and growers, would have taken steps to ensure the
expansion of the industry in the Burdekin was not hindered or halted by the lack of
water. Since the NBWB could not expand its area to the north towards the sea, the
only way it could expand was to the west, to include Lots 44 and 15.
The thrust of Mr Kelly’s evidence was that if there had been no Burdekin
Dam, additional water would have been obtained from somewhere; for example, if the
Board’s pumps had been increased in size, they could have pumped more water from
the Burdekin while the river was running. It was apparent that Mr Kelly had great
faith in the “Waterview Scheme”, which he described as a “marvellous replenishment
scheme”, to have significantly improved the availability of water in the northern part
of the Board’s area and to other lands, such as Lots 44 and 15, located immediately
adjacent.
Mr Kelly was the only witness called by the claimants who gave evidence
directly related to the possible expansion of the NBWB area, if there had been no
Burdekin scheme. However, despite his optimism, his evidence showed that there
was not an over-abundance of water in the area and there had been water quality
problems. The Board was continually seeking ways to improve its water supply. If
| The agricultural drain referred to previously had been constructed by the | The Agricultural Drain the NBWB saw the benefit of using the agricultural drain as a channel. He believed that it would have done so even if there had been no Burdekin Dam, because expansion was coming. | |
| Before proceeding further, it is necessary to consider briefly the recent history of cane growing in the area to the north of the Burdekin River. | ||
| Prior to the construction of the Burdekin Dam, the growing of sugar cane in | ||
| Cane Growing in the Burdekin pumping, were used by witnesses for the respondent to demonstrate that the groundwater allocation policy of 0.25 megalitres per hectare was appropriate, as it was a pumping rate which was considered to be safe. That policy was in effect at the date of resumption of the subject lands and remained in effect at the date of hearing of these matters. The claimants, as mentioned previously, considered that the policy was far too conservative and contended that a safe extraction rate from the aquifer would have been 2 megalitres per hectare per annum, if there had been no Burdekin scheme. That issue will be considered in detail later in this judgment. | ||
| ||
| The Water Evidence | ||
| Evidence of the safe extraction rate from the aquifer beneath the subject lands was given by both Mr Woolley and Mr Merrick. |
Value fully economically developed (TFW) $ 636,900
Development required for full economic development (TFW):
At the date of resumption approximately 256 hectares had been cleared, stick raked and burnt, with light regrowth. To bring 22 hectares to laser levelled cultivation would cost $800 per hectare.
| 22 hectares @ $800/ha = | $ 17,600 |
| That leaves 234 hectares of the 256 hectares of cleared land to be developed to cultivation, which would cost $500/ha. | |
| 234 hectares @ $500/ha | $ 117,000 |
| The remaining 55 hectares (of the 311 hectares with | |
| irrigation potential) would cost $700 per hectare to | |
| bring to dry arable standard. 55hectares @ $700/ha = | $ 38,500 |
| The total development required to bring Lot 15 | |
| to full economical development (TFW) | $ 173,100 |
| Therefore, compensation payable for Lot 15 is assessed at | $ 463,800 |
| Lot 42 - 1,328.178 hectares. | |
| Value fully economically developed (treated, fenced and watered): | |
| 42 hectares irrigable arable lands (in accordance with WRC | |
| water allocation policy) @ $6,000/ha | $ 252,000 |
| 42 hectares irrigable arable land (because of the finding of an increase in water allocation of a further 0.25 megalitres | |
| per hectare by date of resumption) @ $6,000/ha | $ 252,000 |
| 83 hectares dry arable land (with potential for increase in | |
| the future of a further 0.5 megalitres per ha) @ $1700/ha | $ 141,100 |
| 442 hectares dry arable land, without potential for irrigation (balance of the 525 hectares of dry arable land less land with | |
| irrigation potential 83 hectares) @ $1,550/ha | $ 685,000 |
| 719 hectares grazing land (superior to Davco lands | |
| and Lot 44) @ $500 /ha | $ 359,500 |
| Value fully economically developed (TFW) | $1,563,600 |
Development required for full economical development (TFW):
At the date of resumption about 41 hectares had been
pulled, with moderate to heavy regrowth and a further 15
hectares had been cleared to grass. To bring the pulled area
to laser levelled cultivation would cost $800 per hectare.
| 42 hectares (say) at $800 per hectare | $33,600 |
| To bring the remaining 15 hectares of cleared land to laser levelled cultivation would cost $500/ha. | |
| 15 hectares @ $500 per hectare | $ 7,500 |
To bring another 27 hectares of uncleared
| land to laser levelled cultivation would cost $1000 per hectare. 27 hectares @ $1000/ha | $ 27,000 |
To bring 525 hectares of uncleared
dry arable land to cultivation would cost $700 per
| hectare. 525 hectares @ $700/ha | $367,500 |
| In addition, a bore must be sunk, power provided and | |
| a haul-out road constructed at a cost of at least $50,000. | $ 50,000 |
| Therefore, the total development cost required to bring Lot 42 to full economical development (TFW) | $485,600 |
| Therefore, compensation payable for Lot 42 is assessed at | $1,078,000 |
| Lot 43 - 1,328.178 hectares. | |
| Value fully economically developed (treated, fenced and watered): | |
| 42 hectares irrigable arable land (in accordance with WRC | |
| water allocation policy) @ $6,000 per hectare | $ 252,000 |
| 42 hectares irrigable arable land (because of the finding of an increase in water allocation of a further 0.25 megalitres per hectare by date of resumption) @ $6,000 per hectare | $ 252,000 |
| 83 hectares dry arable land (with potential for increase in the future of a further 0.5 megalitres per hectare) | |
| @ $1,700 per hectare | $ 141,100 |
| 589 hectares dry arable land, without potential for irrigation (balance of the total area of dry arable land of 672 hectares less 83 hectares with irrigation potential) @ $1550 per | |
| hectare | $ 912,950 |
| 572 hectares grazing (superior to Davco lands and Lot 44, | |
| but similar to Lot 42) @ $500 per hectare | $ 286,000 |
Value fully economically developed (TFW) $1,718,050
Development required to bring Lot 43 to full economical development (TFW):
At the date of resumption approximately 159
hectares had been pulled, with moderate to heavy regrowth, and 6 hectares cleared to grass. To bring 84 hectares of the pulled area to laser levelled cultivation would cost $800
per hectare.
84 hectares @ $800 per hectare $ 67,200 To bring the balance 81 hectares of cleared
country to dry arable cultivation would cost $500 per hectare.
| 81 hectares @ $500 per hectare | $ 40,500 |
To bring 591 hectares of uncleared land to
dry arable land cultivation would cost $700 per hectare.
| 591 hectares @ $700 per hectare | $ 413,700 |
In addition a bore must be sunk, power
provided and a haul-out road constructed at a cost
| of at least | $ 50,000 |
Cost of total development required in Lot 43 to
| full economical development (TFW) | $ 571,400 |
| Therefore, compensation payable for Lot 43 is assessed at | $1,146,650 |
| Lot 5 - 1781.831 hectares. | |
| Value fully economically developed (treated, fenced and watered): |
56 hectares irrigable arable land (in accordance
| with WRC water allocation policy) @ $6,000 per hectare | $ 336,000 |
56 hectares irrigable arable land (because of the finding of an
increase in water allocation of a further 0.25 megalitres
| per hectare by date of resumption) @ $6,000 per hectare | $ 336,000 |
111 hectares dry arable land (with potential for
increase in the future of a further 0.5 megalitres per hectare)
| @ $1700 per hectare | $ 188,700 |
| 656 hectares dry arable land without potential for irrigation (balance of the total dry arable land of 767 hectares less 111 hectares with irrigation potential) @ $1550 per hectare | $1,016,800 |
| 903 hectares grazing (superior to Lots 42 and 43) @ $600 per ha | $ 541,800 |
Value fully economically developed (TFW) $2,419,300
Less development required to bring Lot 5 to full economical development (TFW):
At the date of resumption about 78 hectares
had been pulled, part stick-raked and burnt, but with
some regrowth. It would cost $800 per hectare to bring
that land to laser levelled cultivation.
| 78 hectares @ $800 per hectare | $ 62,400 |
| To bring the remaining 34ha of irrigable arable uncleared land to laser levelled cultivation would cost $1000 per hectare. 34 hectares @ $1000 per hectare | $ 34,000 |
To bring the 767 hectares of dry arable
| land to cultivation would cost $700 per hectare | $ 536,900 |
In addition a bore must be sunk, power
provided and a haul-out road constructed at a cost of
| at least $50,000. | $ 50,000 |
The total development required to bring Lot 5
However, the claims for valuation fees were not resolved. These claims were
There was some confusion about the basis for those fees. When cross-
examined about them, Mr Eales said the valuation fee for Lot 15 was in accordance
with the standard fee recommended by the AIVLE, while the fees for the valuations
of Lots 42, 43 and 44 were “twice the standard fee”. When re-examined, he explained
that he made a single valuation report for Lots 42, 43 and 44, with fees split one-third
to each. He then went on to say, “They are generally in line with the recommended
scale of fees”.
From that I infer that Mr Eales based his fee of $13,542 on the total of the
valuations of those three lots then, for the purposes of these claims, apportioned one-
third to each regardless of quantum. Since he valued Lot 42 and Lot 43 together, the
apportionment for them was two-thirds.
While the AIVLE recommended Scale of Fees makes provision for charging
twice the standard fees for valuations for compulsory acquisition, a perusal of the
Scale of Fees as at 1 January 1992 indicates that the fees charged by Mr Eales do not
exceed the recommended standard fees.
| to full economical development (TFW) | $ 683,300 |
Therefore, compensation payable for Lot 5
is assessed at $1,736,000
Disturbance
Valuation and Legal Fees
During the hearing the parties agreed to the claims for legal fees as set out in the respective amended claims. These may be summarised as follows:
Lot 44 - $1500, paid 19 January 1998. Lot 15 - $1000, not paid. Lots 42 & 43 - $1500, paid 19 January 1998. Lot 5 - $1000, paid 19 January 1998.
| as follows: argued the matter. It may be because the claims for compensation were substantially amended on the first day of hearing. However, it has been the practice of this Court to award reasonable valuation fees necessarily incurred in the lodgment of compensation claims. Mr Eales gave evidence that the valuations were made for the purpose of assisting the claimants in lodging their claims for compensation, except of course for Lot 5, in respect of which, for some reason not explained, no valuation was made. Mr Eales’ evidence was not challenged, nor any alternative fees suggested. The fact that the valuations were substantially amended and that the fees have not been paid in full, are matters for the claimants and Mr Eales, and not for this Court. | Lot 44 - | $4514, paid as to $2257 on 19 August 1993. |
| Lot 15 - | $2500, not paid. | |
| Lots 42 & 43 - | $9028, paid as to $2257 on 19 August 1993. | |
| Lot 5 - | Nil, no valuation made. | |
| The claimants are entitled to the award of reasonable valuation fees as claimed. Interest Under the provisions of section 28 of the Acquisition of Land Act 1967, the | Lot 44 | $ 4,514 |
| Lot 15 | $ 2,500 | |
| Lot 42 | $ 4,514 | |
| Lot 43 | $ 4,514 |
Court has a discretion to award interest on compensation determined. In these cases there was no argument or submissions concerning interest. Therefore, I propose to follow the usual practice of this Court and award interest on compensation determined in each case.
Orders
Lot 44
In this case I determine compensation payable by the respondent to the claimant under all heads of claim at One million, nine hundred and two thousand, six hundred and fourteen dollars ($1,902,614) (made up of loss of land, $1,896,600, legal fees $1500 and valuation fees $4514).
The respondent is also ordered to pay to the claimants interest at the rate of 8.75 percent per annum on $1,896,600 from the date of resumption, 22 December 1990, up to and including the day immediately preceding the date upon which payment of compensation is made.
The respondent is further ordered to pay to the claimants interest at the rate of 7.75 percent per annum on $2,257 from 19 August 1993 up to and including the day immediately preceding the date upon which payment of compensation is made.
Lot 15
In this case I determine compensation payable by the respondent to the
claimant under all heads of claim at Four hundred and sixty-seven thousand, three
hundred dollars ($467,300)(made up of loss of land $463,800, plus legal fees $1000
plus valuation fees $2500).
The respondent is also ordered to pay interest at the rate of 8.25 percent per
annum on $463,800 from the date of resumption (7 September 1991) up to and
including the day immediately preceding the date upon which payment of
compensation is made.
Lot 42
In this case I determine compensation payable by the respondent to the
claimant under all heads of claim at One million, eighty-three thousand, two
hundred and sixty-four dollars ($1,083,264) (made up of loss of land $1,078,000,
legal fees $750 and valuation fees $4,514).
The respondent is also ordered to pay the claimants interest at the rate of 8
percent per annum on $1,078,000 from the date of resumption (18 December 1992)
up to and including the day immediately preceding the date upon which payment of
compensation is made.
The respondent is further ordered to pay to the claimants interest at the rate of
7.75 percent per annum on the amount of $1,128.50 from 19 August 1993, up to and
including the day immediately preceding the date upon which payment of
compensation is made.
Lot 43
In this case I determine compensation payable by the respondent to the
claimant under all heads of claim at One million, one hundred and fifty-one
thousand, nine hundred and fourteen dollars ($1,151,914) (made up of loss of land
$1,146,650, legal fees $750 and valuation fees $4,514).
The respondent is also ordered to pay to the claimants interest at the rate of 8
percent per annum on $1,146,650, from the date of resumption (18 December 1992)
up to and including the day immediately preceding the date upon which payment of
compensation is made.
The respondent is further ordered to pay to the claimants interest at the rate of
7.75 percent per annum on the amount of $1,128.50 from 19 August 1993, up to and
including the day immediately preceding the date upon which payment of
compensation is made.
Lot 5
In this case I determine compensation payable by the respondent to the
claimants under all heads of claim at One million, seven hundred and thirty-seven
thousand dollars ($1,737,000)(made up of loss of land $1,736,000, and legal fees
$1,000).
The respondent is also ordered to pay to the claimant interest at the rate of
7.75 percent per annum on $1,736,000, from the date of resumption (5 November
1993) up to and including the day immediately preceding the date upon which
payment of compensation is made.
I give the parties liberty to apply on five days’ notice to the other in respect of any of the compensation and interest calculations.
(JJ Trickett)
President of the Land Court
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