Cox v Water Resources Commission

[1995] QLC 55

LAND COURT BRISBANE 17 July 1995

Re: Claim for Compensation -
Resumption for Burdekin River Irrigation Project - Acquisition of Land Act 1967 -
Water Resources Act 1989. (A91-50, A91-51, A91-52, A92-49)

Vivian Henry Cox v.

Water Resources Commission

Hearing at Townsville

J U D G M E N T

The claimant's land comprising four parcels with a combined area of 3705.274 hectares was resumed for the purpose of the Burdekin River Irrigation Project (the Burdekin Project). Each of the parcels of land was resumed on the following dates:

Lot 46 on Plan GS6, Parish of Jarvisfield, area 1092.854 ha, resumed 5 May 1990

Lot 47 on Plan GS36, Parish of Jarvisfield, area 2327.221ha, resumed 5 May 1990

Lot 4 on Plan GL12472, Parish of Northcote, area 78.91 ha, resumed 22 September 1990 Lot 87 on Plan GL12483, Parish of Jarvisfield,area 206.289ha, resumed 27 April 1991

3705.274ha

The proposal to construct a dam at the Burdekin Falls was presented to Parliament in March 1980, for the purpose of obtaining the approval of the Legislative Assembly to the proposal and to constitute the extended Burdekin River Irrigation Area. From the publication of an Order in Council on 12 April 1980, the claimant's land has been within an area constituted under the provisions of the Irrigation Act 1922 as the Burdekin River Irrigation Area (BRIA).
At the dates of resumption, the land was being used for the grazing of cattle, but approximately 72ha on Lot 47 had previously been used for growing fodder crops. In addition, an area of Lot 47 was being used as an effluent disposal area for a feedlot which was established on the adjoining land owned by the claimant's son, Geoffrey Alexander Cox.
It would appear that both parties agree that 5 May 1990 should be the effective date as at which compensation should be determined. Their respective valuers did not contend that there should be any difference in value because of the different resumption

dates.

The original claims for compensation for Lot 46, Lot 47 and Lot 4, dated 23

October 1991, and for Lot 87, dated 17 November 1992, totalled $6,303,950.

Land $ 9,930,000

Improvements $ 87,000

Disturbance $ 369,000

Legal Fees $ 2,000

Valuation Fees $ 10,000

The amended claim for compensation in respect of all of the above described land was lodged on 16 February 1994, as follows:

Total Claim $10,398,000

From the time of its inclusion in the BRIA, the claimant knew that the land was to be resumed as part of the Burdekin Project for the creation of new irrigation farms. The claimant contended that this scheme, the Burdekin Project, prevented the development of the subject land as irrigated cane land, in conjunction with other land to the south, as part of a private irrigation undertaking called the Davco Irrigation Project.
The difference between the amount of compensation claimed by the claimant ($10.4 million) and the amount assessed by the constructing authority ($1.9 million), is the result of the different approaches taken by their respective valuers.
It is well established that for the purpose of determining compensation, any effect which the Burdekin Project has had on the value of the land must be ignored, (the Pointe Gourde principle). That this principle operates in respect of both enhancing values and depreciating values was established by the Privy Council in Melwood Units Pty Ltd v. Commissioner of Main Roads [1979] A.C. 426, where their Lordships said at pp. 434-435:
"Under the Pointe Gourde principle (see Pointe Gourde Quarrying and Transport
Co. Ltd. v. Sub-Intendent of Crown Lands [1947] A.C. 565) the landowner cannot claim compensation to the extent to which the value of his land is enhanced by the very scheme of which the resumption forms an integral part: that principle in their Lordships' opinion operates also in reverse. A resuming authority cannot by its project of resumption destroy the potential of the whole thirty-seven acres for development as a drive-in shopping centre, and then resume and sever on the basis that that destroyed potential had never existed.
... the principle remains applicable in a case such as the present, notwithstanding that planning permission had not been given for the whole thirty- seven acres and would not have been given, when the lack of such permission was manifestly due to the expressway project, and it is established that, without the expressway project, such planning permission would have been given for the whole thirty-seven acres. To hold otherwise in this case would enable the acquiring authority to inflict by its project the same injustice at one remove.

... In their Lordships' opinion it is part of the common law deriving as a matter of principle from the nature of compensation for resumption or compulsory acquisition, that neither relevantly attributable appreciation nor depreciation in value is to be regarded in the assessment of land compensation. "

The claimant contended that the value of the resumed land has been depressed by the scheme, while the respondent argued that the implementation of the scheme has enhanced its value. Both agreed, however, that compensation must be assessed on the basis that the Burdekin Project had not been implemented.
Central to the claimant's case is the assumption that, in the absence of the Burdekin Project, at the date of resumption, the Davco Project would have been providing a reliable water supply sufficient to irrigate all the potentially arable land on the resumed area in quantities sufficient to grow cane. The respondent, on the other hand, argued that it was only because of the channel water from the Burdekin Project that the resumed land had potential as cane land and that, in the absence of the scheme, its highest and best use was dry land farming and grazing, with a small area of irrigable/arable land supplied from limited groundwater resources.
The pivotal question, therefore, is whether or not the Davco Project would have been technically and economically feasible if there had been no Burdekin Project. The majority of the 32-day hearing was concerned with the evidence of experts directed to this hypothetical question. The case was largely conducted as if the Davco Project was still possible. Distinguished experts were called by both parties to give evidence about whether or not various aspects of the Davco Project were feasible. To this extent the case was conducted in an atmosphere of unreality as many of the witnesses dealt not so much with the hypothetical question of whether or not this project could have been undertaken, but whether it could be undertaken. It is therefore necessary to explain the Davco Project and to consider in some detail the evidence as to its feasibility.

The Davco Irrigation Project

The Davco Irrigation Project was devised by David Cox, son of the claimant Vivian Henry Cox and brother of Geoffrey Alexander Cox. The purpose of the scheme was to provide water sufficient to grow sugar cane on the Cox family lands and on lands of neighbouring farmers, by means of conjunctive use of river water, ground water, natural drainage and tail water collection.
The Cox family has held land in the Burdekin Valley since 1887. A family redistribution of land in the mid-1970s, resulted in VH Cox holding the resumed land, which was the northern area of the family aggregation, Geoffrey Cox holding the land to the south of that land, while David Cox held the land on the south of the aggregation.

VH Cox also held Portion 690 with an area of 63.131 hectares, situated in the south- east corner of the aggregation, close to a bend in the Burdekin River. Figure 1 shows the family aggregation, part of which had been subdivided and sold to finance development.

At the time of the redistribution of the family property, it was used for cattle grazing, but the Coxes agree it was only second or third class grazing land. However, they recognised that the land had potential for growing sugar cane and subsequent events have proved this to be correct, as the Cox lands are now largely prime sugar- growing land. Its suitability stemmed from the fact that it was very level ground, well drained and with suitable soils. The level ground minimised the start-up costs of furrow irrigation, which is most effective in the Burdekin heavy clay soils. The land was also ideally situated between the Invicta and Pioneer Sugar Mills.
Irrigation is essential for the growing of cane in the Burdekin Valley and the Cox lands had no access to sufficient water for such purpose. However, David Cox believed that adequate water was available, as underground water was being used on the adjoining Mona Park properties and there was the option to draw water from surplus flows in the Burdekin River. David Cox had no interest in grazing, he wanted to be a cane farmer. His vision was the development of the family land for sugar cane farming. He decided to establish his own irrigation scheme and with the support and financial assistance of his family, he conceived and developed a plan for a scheme which he called the Davco Irrigation Project.

David Cox described the project thus:
"The Davco Irrigation Project was at its inception (and to some extent remains) 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 or 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. " (Exhibit 18, pages 4 - 5).

David Cox was confident that the sugar industry would continue to expand. His project started in 1977 when he devised a farm development plan and applied for a river licence with an allocation of 2,200 megalitres. He discussed with representatives of the Pioneer Mill the availability of his land for growing sugar cane and negotiated an

easement for a tramline across his land and land held by other family members.

Central to the scheme was the harvesting of water from the Burdekin River. This would be achieved by a series of pumps at a pump-site on the river bank, pumping under the Ayr-Dalbeg Road to the commencement of a channel system. The Davco main channel would traverse the southern boundary of Portion 690 and continue along the southern boundary of David Cox's land. Three other channels would distribute the water over the remainder of his land and eventually onto the land of other family members.
The scheme also involved a series of drains which exploited the natural drainage of the land in such a way as to utilise runoff water and the tail water from irrigation as part of the conjunctive water use process.
The scheme was modified and altered over the years as circumstances changed. David Cox realised that the storage of surface water would have been necessary and preliminary plans included provision for two above-ground storage cells with 5-metre high walls and 1km long sides. A later plan included the pumping of river water directly into one storage cell, situated towards the south-east corner of the aggregation, adjacent to the foothills of Kelly Mountain. David Cox reasoned that a second storage cell of roughly the same capacity may have been necessary in the future, if the Davco scheme was to be extended to the lands to the north of the subject land, owned by his uncle, Mr Cecil Cox, and the Hoeys. David Cox was confident that in time sufficient water would have been available to water the lands outside the family aggregation and possibly through to the highway to the north.
David Cox had carefully considered the funding of this project. He realised that it would be beyond his capacity and that of the family. Therefore, he proposed to develop, subdivide and sell areas of farmable size while retaining the balance lands. The purchasers of these farms were seen as potential participants in the Davco Irrigation Project and the subdivision was designed accordingly.
From various sources David Cox acquired sufficient capital to continue with his development project. Development of channels through lands held by other people was assisted by those landowners bearing the cost of channel construction in return for the spoil from the channels which was used in the levelling of their lands. This process was used to advantage by David Cox in the construction of the Davco main channel and where channel A and channel B were constructed through lands which had been sold in Stages 1 and 2 of his subdivision plan.
The right to underground water was a crucial part of the Davco Project. However, the Cox lands had very little right to underground water. Brown Road at the southern boundary of the family aggregation separated David Cox's land from the Mona Park area. The farms to the south of the road had the right to irrigate from one pump

for every 65 acres (26 hectares) to a maximum of 204 megalitres. The Cox land to the north of the road had the right to only one bore and 204 megalitres of water for each 2,000 acres (800 hectares) held, sufficient to grow 65 acres (26 hectares) of sugar cane. David Cox used most of the water entitlement from his own holdings and from other land which he acquired as part of the project (the Parker land) to provide a water allocation for five of the nine subdivided lots. The Parker lands were to form part of the Davco Irrigation Project, but David Cox's interest in those lands was subsequently acquired by the Water Resources Commission by agreement as a trade-off to allow David Cox to hold more of his original landholding.

So that ground water could be used as part of the conjunctive use process, David and Geoffrey Cox evolved a scheme of recharging the underground aquifer, so that the water would be stored in the aquifer and available to be extracted for use in the Davco Project.
The recharge process involved the construction of nine recharge trenches by means of which water was to be pumped into the aquifer through a sand filter. These trenches were not constructed, but a recharge trial had been conducted and during the course of the hearing another recharge trial was undertaken. Extensive evidence was given about the recharge process and will be discussed later in this judgment.
During 1978 and 1979, David Cox continued with his development program, including the preliminary work for the pump stations on the Burdekin River bank and the pipe system. Consents were obtained from the relevant authorities to pump from the river through a process of collection chambers and pipelines to the beginning of the channel system and across Portion 690. Work on the Davco main channel proceeded and in January 1979, David Cox was granted a licence to pump 1200 megalitres per annum from the river. He realised that this was not sufficient to supply the whole of the project, but he envisaged that each of the participants in the project would apply to the Water Resources Commission for a water allocation. Then, subject to the payment of Davco headworks charges, they would have the right to use the Davco channels once they had approval from the Water Resources Commission to draw river water.
The Burdekin Dam Scheme was announced in April 1980 and David Cox was faced with the prospect of resumption, not only of his land but that of the potential users of the Davco irrigation system. However, he was not convinced that the Burdekin Project would proceed and he continued with the development of the Davco Irrigation Project. He spent a considerable amount of time meeting with politicians and officials, discussing the impact that the Burdekin Scheme would have upon the Davco Irrigation Project. He realised that as well as affecting the supply of water to potential users of his project, the Burdekin Dam would affect the flow of the river itself, which was crucial to the Davco project.

By early 1981 construction of the Davco main channel was proceeding and David Cox intensified his efforts to obtain the right to grow sugar cane. In June 1981 he applied for a free flow licence. Development continued from 1984 to 1986, with David Cox doing all that he could to limit the impact of the Burdekin Scheme on his farm and his project. In February 1987 he applied for an increase in his Waterworks Licence, but at the date of hearing this remained unresolved.
In June 1987, David Cox devised a scheme of leasing assignment from landlocked farmers who were then able to use their "roaming" entitlement to grow cane on the Davco farm. Although at significant cost, he used this to great advantage, achieving economies of scale utilising broadacre farming techniques and cost efficiencies. In 1994, the Davco farm grew over 100,000 tonnes of cane with the same machinery as a farm that grows 10,000 - 12,000 tonnes of cane. In 1993 the Davco partnership was the largest private producer of sugar, producing over 103,000 tonnes from 2,566 hectares.
David Cox stated that it was envisaged that the Davco Irrigation Project would not have been just a private profit-making venture, although he conceded that the fact that it was going to serve his land, as well as others, was a prime motivation. When the scheme was in place, a water board, similar to those already operating in the Burdekin, would have been established to operate it.
The Davco Irrigation Project concept plan was continually modified from the time it was first envisaged, in accordance with prevailing circumstances. Because of the Burdekin Dam Project, it had to be modified substantially and was not able to provide water to the subject land as was the original intention. With the announcement of the project, all the family land was threatened with resumption as were all large landholdings, including prospective participants in the Davco project.
Mr Geoffrey Cox also gave evidence about the Davco Project. He affirmed the family's support for and contributions to its development. He explained the strategy of constructing Pelican Road and subdividing and selling some farms to finance the development of their lands. He said that David's idea was to use the excess free flow out of the river, while his idea was to establish a recharge scheme similar to those in the North Burdekin Water Board area, where he had previously owned a cane farm. The scheme became a combination of these aspects.
The Davco Project was to be worked up by David and himself, Geoffrey Cox said, while Kalamia Plains Pastoral Co. was used to clear and prepare the family lands, including the subject land. He said that his father (the claimant), David and himself agreed that the project was to be a joint effort and that they would split the costs on a proportional land basis.
He explained that one of the major benefits in undertaking the development

themselves was the use of gravel from a quarry on his own land for roadbuilding in the project area.

Geoffrey Cox and his father conducted all the business on their lands under the business name Kalamia Plains Pastoral Co., with interests one-third and two-thirds respectively. This included the feedlot, the grazing and the farming on Geoffrey's land. Contributions were made by the claimant and Geoffrey Cox from time to time through Kalamia Plains Pastoral Co. to the Davco Project. Geoffrey Cox said that David went ahead with development on their behalf and they reimbursed him, whenever they were able.
Geoffrey Cox had prepared a schedule of payments made up to the date of resumption, both direct payments and work done by the bulldozers offset as work for the Davco Project. Direct payments between 1986 and 1988 amounted to

$204,631.34, work done by the Kalamia Plains bulldozer in 1980 and 1982 amounted to

$33,105, and work done by Geoffrey Cox's bulldozer between 1982 and 1991 amounted to $58,985. He explained that there were also many previous payments made to David that could not be identified.

Therefore, identifiable contributions to the Davco Project by the claimant (excluding the last item of contribution made by Geoffrey Cox) is two-thirds of

$237,736.34 or $158,490.89. [This differs from Mr Eales' figure in his hypothetical exercises.]

Geoffrey Cox said that he applied in the early 1980s for a licence to pump water from the Burdekin River for the development of his land as part of the Davco Project, but no reply was ever received from the Water Resources Commission. He continued to develop his land through the 1980s, planting an area of 40 hectares to mangoes and in 1990 commenced planting cane until he had, at the date of hearing, some 500 hectares under sugar cane.
If it had not been for the Burdekin Project, Geoffrey Cox thought that by the date of resumption the subject land would have been developed for cane growing. By 1979/1980, the development of the family lands was well underway using machinery owned by the various family members.
The Davco Irrigation Project, as finally envisaged that it would be in 1989-1990, is shown on the plan which is Exhibit 21, reproduced here as Figure 2. This plan shows the lands owned by David, Geoffrey and Vivian Henry Cox, plus the lands sold in subdivision, divided into a series of farm management areas, with these blocks generally comprising areas of 100 to 150 hectares, with approximately 30 kms of channels, approximately 15 kms of drains and 9 recharge trenches. A large storage cell is shown situated towards the south-eastern boundary of the Davco land, with the possibility of a second storage cell to be constructed later to service lands further to the

north, if the project was to be so extended and such extra water storage was needed.

The Claimant's Argument
The claimant contended that if the Davco project had proceeded as originally intended, in the absence of the Burdekin Project, Davco water would have been available to the subject land by 1990. While the Coxes were confident of the ultimate success of their project, a great deal of evidence was given by experts in various fields for the purpose of demonstrating that, in the absence of the Burdekin Project, the Davco Irrigation Project would have been technically feasible and economically viable.
The Evidence of Professor Raymond Edward Volker
At the time he gave evidence, Professor Volker was Professor of Civil Engineering and Head, Department of Civil and Systems Engineering at James Cook University. During the hearing he took up an appointment as Professor of Civil Engineering and Head, Department of Civil Engineering, at the University of Queensland. Professor Volker's main areas of research were in the field of water resources engineering, including flow through porous media and groundwater modelling, and numerical modelling of an aquifer under the Burdekin Delta with intermittent recharge.
Professor Volker's Overview of the Davco Irrigation Project
Professor Volker described the project as an integrated system of water storage and distribution designed to irrigate approximately 7,200 to 8,000 hectares of sugar cane without using water from the Burdekin Dam. He explained that an irrigation project required sources of water, a means of withdrawal and its application as irrigation. It may rely on groundwater, surface water or a combination of both. Groundwater based projects rely on natural recharge of the aquifer, in some cases augmented by artificial recharge, as in the Davco Irrigation Project. Artificial recharge means providing water, other than by natural recharge, to the aquifer which then acts as a reservoir from which water can be drawn. Introducing water by artificial means improves the rate of natural recharge and increases the quantities of water available.
Professor Volker described the Davco Irrigation Project as a conjunctive use project, relying on water pumped from the Burdekin River to supplement natural recharge. It incorporated surface water storage, plus pumps and channels to deliver the captured part of the high river flow to the crop, to the groundwater storage and to surface storage.
There are several aspects which Professor Volker described as advantageous to the viability of the project. The Burdekin River, adjacent to the project land, often had large surplus flows when there was insufficient rain for crops on the Davco land. Thus, he reasoned, a significant proportion of the irrigation requirement could be drawn from the river in most years, without depriving other potential users of access to reasonable

quantities. He said that a good quality aquifer underlies the project area at depths shallow enough to make artificial recharge feasible. The underground storage of water eliminates evaporation and does not require construction. The slow movement of water in the aquifer makes it possible to retrieve recharge water. It provides a distribution system as it is continuous under the project area. Bores and pumps may be located where required for crop irrigation.

Professor Volker went on to describe the major components of the proposed Davco Irrigation Project, as the concept plan finally evolved, as comprising:
.          the aquifer to provide and store water;
.          pumps to divert water from the Burdekin River;
.          pipes and channels to transport it;
.a surface storage to supplement the aquifer and assist removal of sediment;

. artificial recharge pits.

In the Professor's opinion, such a system would allow the irrigation of sugar cane to supplement rainfall and optimise crop growth.

In order to show that the Davco Irrigation Project would have been viable, Professor Volker explained that a conceptual design and feasibility study had been undertaken. However, he said that detailed design would have been required immediately prior to full implementation. This conceptual design and feasibility study accepted that the aquifer described by hydrogeologist, Mr Woolley, was capable of storing artificial recharge in quantities required to supplement natural recharge. Professor Volker went on to say that the aquifer had sufficiently high transmissivities and storativities to ensure the efficient withdrawal of the amounts of water required for irrigation. He stated that the similarity of the aquifer to that of the adjacent Burdekin Delta made it unnecessary to compare it with systems elsewhere.
A preliminary design of a pump station for capturing river flow was performed by McIntyre and Associates Pty Ltd. Open channels to transport river water to the farm had been size-costed and preliminary design of a dam to store water was undertaken by Beckhaus Civil Pty Ltd. Artificial recharge was investigated by calculation using the results of a recharge trial and, in Professor Volker's opinion, shown to be viable.
As part of the preliminary process, a computer model to represent the functioning of the Davco Irrigation Project was developed to assist in assessing the ability of the project to provide the necessary quantities of water daily. This model did not attempt to simulate in detail all the processes affecting water movement at different locations in the aquifer or channels at all possible times. Rather, it relied on reasonable estimates of water movement and available storage on a daily basis and simulated overall response of the system for a given set of recorded climatic conditions. This modelling was undertaken by Mr Crees.

Professor Volker said that the Davco Irrigation Project as it was designed had an inherent robustness, reinforced through the opportunity to control many of the key components such as:
.          the total length of the recharge pits and size of the pits;
.          the frequency and method of pit cleaning;
.          the size of pumps;
.          the size of surface store;
.the incorporation of surface storage in the supply line to the recharge pits; and

. the opportunities for the use of tail water.
Professor Volker stated that the management options were also enhanced because of the large number of interrelated components and the opportunity to control their operation. Consequently, he thought that the project offered a great deal of flexibility to optimise its performance through both design and operational aspects. For example, he said that the pits would not be constructed to the full length in the first place, but would be extended if needed. The frequency of cleaning schedules would be established by experience. Also, the type and size of pumps and the size of the surface store would be left until the detailed design stage.
Detailed design would have been undertaken prior to implementation, Professor Volker said, when the appropriate combination of infrastructure installations to optimise the operation of the project would have been investigated. The object of the present exercise was, he said, to show that the Davco Irrigation Project would have been a feasible method of irrigating the Davco lands.
Professor Volker concluded that based on 21 years of recorded hydrologic data and on the analysis of the project operation and its various components which were reported upon by the various experts, the project had been shown to represent a feasible means of irrigating the subject land to grow sugar cane.

The Aquifer

Crucial to the success of the proposed Davco Irrigation Project would have been the capacity of the aquifer under the Davco lands to receive, store and transmit water. If the aquifer did not have these properties, an essential component of the project would have been removed.
The Volume of the Aquifer
Evidence in this regard was given by two hydrogeologists, Mr Donald Russell Woolley, a consultant hydrogeologist with extensive experience, called by the claimant, and Mr John Robert Hillier, Manager, Groundwater Assessment, Department of Primary Industries Water Resources, called by the respondent. Both witnesses prepared their reports on the basis that the Burdekin Dam was not in existence. They used essentially

the same sources of information, consisting mainly of published material and investigations carried out by others in the area of the Davco lands.

Both hydrogeologists generally agreed that the aquifer consists of sand and gravel deposits underlaid by bedrock and overlaid by a substantial clay layer of varying thickness, ranging from less than 6 metres to about 20 metres.
They seemed to agree that water enters the alluvial material in the aquifer by natural recharge through infiltration of rainwater, irrigation water, river, creek and runoff water from periodic major floods, and from leakage from the underlying bedrock. Infiltration from rainwater is as low as 2.5% of annual rainfall, for approximately 25mm for an average year. This natural recharge rate became the basis for the Water Resources Commission's allocation policy of allowing .25 megalitres per hectare for irrigation bores in the area.
The evidence indicates that, after reaching the water table, water moves through the aquifer system at a rate controlled by the hydraulic gradient and by the aquifer permeability. In the Burdekin Valley (in which the Davco lands are situated) under natural conditions, groundwater will flow from south to north towards the sea.
Before development of the area there was an equilibrium with recharge of aquifers equal to discharge. As the water table rose, discharge to the sea increased and vice-versa, with the salt water/fresh water interface virtually stable. Development has upset that equilibrium, with clearing and irrigation increasing recharge and causing water levels to rise. Use of groundwater can lower water levels, but if they are lowered too far they could result in movement of salt water into the aquifer. It is important that the gradient to the north be maintained so a significant flow continues in that direction, or movement of salt water would occur. Mr Woolley and Mr Hillier agreed that the Davco Irrigation Project would not have caused that to occur if the water levels were kept above the 1971 minimum.
Both hydrogeologists agreed that the capacity of the aquifer to receive artificial recharge depended upon the volume of unsaturated aquifer material between the lowest water level recorded in 1971 and the base of the variable clay layer. The depth of this unsaturated material was also variable and depended to a large extent on the depth of the clay layer.
The Water Resources Commission had drilled approximately 60 bores in the vicinity of the Davco lands for groundwater investigation purposes. Mr Woolley and Mr Hillier used the bore log data from these bores to calculate the size of the aquifer above the 1971 water level as the area available to store artificial recharge water for the Davco Irrigation Project.
In addition to water leaving the aquifer to the north, both hydrogeologists assumed that there was an inflow of water from the south (the Mona Park area) of 18 megalitres per day entering the aquifer beneath the Davco lands. This also had to be

takeninto account in estimating the volume of the aquifer available for recharge water.
From the available bore log data, Mr Woolley prepared a representation showing the water beds penetrated by the test bores and extrapolated these to indicate a possible distribution of the main aquifers. He noted the increasing thickness and depth of the aquifer towards the north, as the maximum potential for groundwater pumpage occurs where the aquifer is thickest and deepest. In calculating the volume of water that could be stored within the aquifer between the base of the surface clay layer and the lowest recorded water level in 1971, Mr Woolley estimated that the average width of the valley is 8 kilometres, the length 7 kilometres and has adopted an average thickness of 6 metres for the available aquifer. To that he applied a storativity value of 0.16, which had been previously adopted by Australia Groundwater Consultants in their 1983 report, which Mr Woolley considered to be reasonable. Storativity is the proportion of the volume of the aquifer occupied by water.
From these data, Mr Woolley calculated the volume of water that could be stored at 54,000 megalitres.
Mr Woolley admitted that the average thickness of the available aquifer is an arbitrary figure as he did not have sufficient data to be more accurate. He said that the volume of 54,000 megalitres is small compared with the total volume of the groundwater stores in the aquifer within the Davco area, which he estimated at 216,000 megalitres. He concluded that the aquifer is therefore amenable to conjunctive use with river water by providing short-term storage for artificially recharged water. He stated that the available evidence on the aquifer seemed to indicate that it would be well adapted to underground water storage.
On the other hand, Mr Hillier's conclusions varied greatly from those of Mr Woolley. From investigation drilling, Mr Hillier drew the following conclusions:-
.at the northern boundary of the subject land the depth of clay overlying the aquifer is 3.6 to 14.6 metres below the ground, with unsaturated aquifer material above the 1971 water level varying from 0 to 5.9 metres, the average being 1.5 metres.
.at the southern boundary of the subject land (slightly to the north of the centre of the Davco lands) the depth of clay varies from 2.7 to 9.75 metres, saturated aquifer material above the 1971 level varying from 1.25 metres to 8.3 metres, the average being 3.0 metres.
.at the southern boundary of the Davco lands (Brown Road) the clay varies from 4.2 metres to 13.6 metres, with saturated aquifer material above the 1971 level varying from 0 to 6.8 metres, the average being 4.9 metres.

From these data, Mr Hillier arrived at an average thickness for the unsaturated zone above the 1971 water level of 3.13 metres. Using an area of 8 kilometres x 7

kilometres, he calculated the volume of this layer at 175,280,000 cubic metres.

Mr Hillier went on to say that the maximum value of storativity for clean aquifer material is 0.16. If this storativity value is used, the volume of water that could be stored is 28,000 megalitres. However, the presence of clay and silt in the Davco aquifer would reduce this value significantly. Therefore, Mr Hillier concluded that the storativity value of 0.16 is too high for this aquifer and that a value of 0.1 would be more reasonable.
Under cross examination, Mr Hillier was taken through the bore log data for the various bores on his cross-sections and as a result of amended dimensions of the Davco area, Mr Hillier agreed that the calculation of the volume of available aquifer material could be close to 351 million cubic metres. If Mr Woolley's estimate of the storativity of 0.16 was applied, the result is 56,000 megalitres of stored water, which approximates closely Mr Woolley's estimate of 54,000 megalitres.
However, Mr Hillier adhered to his opinion that the storativity is 0.1 so that the volume of water equals 35,000 megalitres. He also commented that only 80% of the artificially recharged water could be recovered.
There is substantial difference between these two experts as to the volume of aquifer material available for artificial recharge. Whichever method is adopted, the result is hypothetical, as only very extensive test drilling could indicate the amount of aquifer available. However, the calculations put to Mr Hillier in cross-examination do indicate that on the most optimistic estimates a value of 351 million cubic metres is available.
There is considerable disagreement about the storativity of the aquifer material. Because of the amount of clay and silt in the sand and gravel, Mr Hillier thought that the storativity was only 0.1. However, he seems to be alone in this estimate. Among the published material presented in evidence, Australia Groundwater Consultants, with whom the Water Resources Commission seemed to agree for other purposes, estimated storativity at 0.16. This same value was adopted by a Mr O'Shea of Water Resources Commission in his report which was tendered in evidence, as well as by Mr Woolley. A report by Coffey and Hollingsworth indicates that their estimate of storativity of the aquifer under Portion 31 (to the north-west of the subject land) might be as high as 0.2, while a report by a Mr Cox of the Water Resources Commission, using a soil moisture meter, indicates that storativity might be 0.21.
The state of the evidence is such that it is difficult to make a finding with any confidence of the size of the available aquifer. However, the weight of the evidence would, in my opinion, tend to favour the larger rather than the smaller estimate. Therefore, the volume of the aquifer available for artificial recharge may be in the vicinity of 50,000 megalitres.
The Ability of the Aquifer to receive, store and transmit water. Natural recharge.

There was general agreement on the sources of natural recharge of the aquifer, although Mr Woolley commented upon the apparent uncertainty of the relative importance of the various recharge processes and the lack of precision in estimation of volumes attributable to them, in the numerous studies of the aquifer system in the Burdekin Valley.
The movement of water through the aquifer system is controlled by the hydraulic gradient, that is the difference in water elevation, and by the aquifer permeability. Water table contours show water entering the alluvial system and confirm the northerly movement of ground water towards the controlling sea level to the north.
Permeability of an aquifer is commonly expressed as its "transmissivity". From data obtained during continuous pumping of a bore over one month in 1991, Mr Woolley concluded that the transmissivity is 5000 square metres per day. For the whole of the aquifer he estimated an average transmissivity of approximately 3000 square metres per day. On the other hand, Mr Hillier regarded the permeability of the aquifer as a limiting factor and, although he has used a transmissivity of 3000 square metres per day (from models developed by Seccombe and Arunakumaren), he thinks 2400 square metres per day is more realistic.

Using an equation involving the length of the southern boundary of the Davco lands, the hydraulic gradient and the transmissivity, Mr Woolley estimated that there was a down valley groundwater flow of 18 megalitres at a velocity of one-tenth of a metre per day. As the aquifer system is continuous to the north from the Mona Park area and the thickness of the alluvial deposits improves in that direction, from data obtained from the Mona Park irrigation area, Mr Woolley concluded that groundwater withdrawal at a rate of 4 megalitres per hectare was reasonable. He expressed the opinion that the Water Resources Commission could have no reasonable grounds for refusing a licence for bores to pump at a rate of 2.5 megalitres per hectare.
However, the officers of the Water Resources Commission see the matter very differently. Mr Leon Malcolm Leach, Senior Hydrologist, Northern Region, gave evidence that the Davco land was in an area that had been proclaimed as a sub- artesian bore district because of the lack of available groundwater due to poor reliable natural recharge and the need to manage groundwater use. He said that saltwater could invade the fresh groundwater rendering it useless for irrigation. The lack of natural groundwater led to the creation of the Burdekin Project.
The Water Resources Commission's allocation policy for the area including the Davco lands, was one bore for each 800 hectares (or part thereof) and an allocation of

0.25 megalitres per hectare. Mr Leach admitted that it was based generally on the amount of infiltration of rainfall, the long-term average of which is 0.25 megalitres per year. The Commission had used this as the basis for its policy of safe yield at 0.25 megalitres per hectare per year, since the late 1970s. This policy was reassessed by

Australia Groundwater Consultants in 1982 and 1983, and in 1990 by Seccombe and Arunakumaren. These reports generally agreed that the Commission policy was proper and, while an extraction rate of 2 megalitres per hectare per year was unlikely to cause saltwater intrusion, it would have a detrimental effect on irrigation by decreasing water levels in present irrigation areas.

The evidence was to the effect that the safe yield in Mona Park was established at 1667 megalitres when it was opened up as an irrigation area in 1963/64. As a result of later investigations, by 1978 the safe yield was set at 6690 megalitres. However, there was no change in the safe yield assessed by the Commission for the area to the north, which included the Cox lands, because of its concern about the possible deterioration of water quality.
Artificial recharge.
The various groundwater experts have considered the possibility of introducing water to the aquifer by means of artificial recharge for short-term subsurface storage. Artificial recharge has been used by the North Burdekin Water Board and by the South Burdekin Water Board in the Burdekin Delta for over 20 years. Continued canefarming in the area is now heavily dependant on these recharge schemes. Some 200,000 megalitres annually is recharged by pumping from the river into a complex system of natural and artificial channels, trenches and seepage areas from which it percolates to the aquifer.
It was generally agreed that the main requirements for artificial recharge are:
. sufficient flat land for the construction of recharge pits;

.a ready supply of clean algae-free water to prevent the sand filter and the aquifer from clogging;

.an aquifer shallow enough to be reached by conventional excavating equipment;

.an unconfined aquifer with properties of transmissivity and storativity sufficiently high to enable water to be introduced at required rates.

While estimates of the depth of the aquifer below the surface clay layer varied, it was agreed that there were areas where depths were less than 10 metres, which would allow the trenches to be excavated using conventional machinery. The Burdekin River itself would provide the appropriate sand for backfilling.
The Artificial Recharge Trial No.1
To demonstrate the feasibility of recharging water artificially, a recharge pit similar to those used in the South Burdekin Water Board area was established on the Davco land. A trench into the aquifer sand, 9.6 metres long x 1 metre wide x 5.5 metres deep was excavated from the base of a pit 11.6 metres long x 4 metres wide x 1.5

metres deep (tapering sides made the floor of the trench 9.6 metres x 3 metres). The trench was backfilled with unscreened river sand and the base and sides of the pit were also covered with sand to ensure that clay from the sides would not contaminate the sand filter. Professor Volker reported on the results of the recharge trial, observing that the test pit was substantially smaller than the proposed operational trenches and that in practice screened sand would be used with the probability of increased recharge rates.

For approximately the first 20 days of the trial, bore water was used. Professor Volker explained that the object was to demonstrate that it was feasible to get water into the aquifer at sufficient rates, not to simulate a pit in operation. The results show that where there is a source of clean water available, water could be introduced into the aquifer at rates of 30 to 40 litres per second (0.30 to 0.35 megalitres per day per metre of trench).
After that initial period, channel water was introduced to ascertain whether there would be any appreciable effect from sediment or algae in that water. Recharge continued for a further 14 days, a total duration of approximately 33-34 days, with the infiltration rate gradually reducing to about 10 litres per second (0.09 megalitres per day per metre of trench).
Professor Volker said that the test showed that large quantities of clean water can be recharged, but if there is sediment or algae in the water and it is not properly controlled, the recharge rate will decline. Suspended material is trapped on the sand surface and reduces the infiltration rate. However, he noted that the Davco Irrigation Project provided for river water to be passed through a storage cell before it entered the recharge pits. This would act as a large sedimentation basin to remove a high proportion of the suspended material. Professor Volker went on to state that the storage cell would not have been vital for the volume of water necessary for irrigation, but would have been required to control the quality of the water for recharge purposes.
Although all particles larger than 2 micrometres should have been removed, the Professor said it would have been necessary to clean the pit surface periodically to remove fine particles which clog it, thereby reducing the recharge rate. He contended that high infiltration rates could be maintained longer when grain size larger than 2 micrometres was removed and would ensure that regular pit cleaning could be undertaken at a frequency low enough to ensure a viable recharge operation. He explained that the South Burdekin Water Board pits operate for periods of 4-5 weeks without the need for cleaning and then often drying out and raking the surface is all that is necessary to restore the infiltration rate. At longer intervals, skimming the top 25-75 millimetres of sand could be necessary.
Professor Volker went on to say that in order to minimise the need for pit surface cleaning, it would be advantageous if recharge operations were restricted to times when river water had low total suspended solids. The South Burdekin Water Board restricts

pumping from the river to times when water turbidity is less than 150 units. Professor Volker described that as a somewhat arbitrary policy, not appropriate for the Davco Irrigation Project, as it would unduly restrict times when water could have been pumped or recharged. He was also critical of turbidity as a measure of the quality of water. He said a more precise measure is the total of suspended solids, that is, the mass of suspended solids per volume of water.

Professor Volker went on to explain that during the recharge trial, the response of the aquifer was monitored by water levels in observation bores, which responded fairly rapidly to the introduction of water through the trial pit. He said this indicated a very good hydraulic connection between the pit and the aquifer sands, suggesting that artificial recharge should be successful.
The Professor concluded that on the basis of the results of the trial and the experience of recharge operations by the two Water Boards in the Delta, it would be feasible to control the sediment load in recharge water and clean the pits sufficiently to maintain an effective recharge operation.
According to Professor Volker, the artificial recharge trial had demonstrated that flow rates in the range of 40 litres per second to 10 litres per second, depending largely upon the quality of the water, could be sustained through a trench 10 metres long. This was equivalent to 0.35 to 0.09 megalitres per day per metre of the trench, with an average of approximately 0.25 megalitres per day per metre. The Professor concluded that it would "almost certainly" be feasible to recharge water at rates necessary for the operation of the Davco Irrigation Project.
However, Professor Volker emphasised that while the scheme was technically feasible, he had not made any investigation of costs. He said it would be appropriate to proceed to a design stage, where there would be further detailed investigations, calculations and analyses, which would weigh the costs and benefits to determine if the scheme was economically feasible.
The respondent was critical of Professor Volker's report, describing it as nothing more than a basic preliminary assessment to identify that the artificial recharge system may be theoretically possible and worthy of further investigation. The results of the recharge trial showed that its efficiency dropped dramatically. It was suggested that they were of no probative weight, because the test was conducted for too short a period and clean bore water was used for most of the time. In reality, highly turbid river water would be used.
The respondent submitted that Professor Volker's analysis of the recharge trial provided no evidence upon which a prudent purchaser could make a firm decision as to the viability of the Davco Project.
Mr Hillier's recharge model.
To test the dispersion of water from an artificial recharge scheme, Mr Hillier

constructed a small groundwater flow model, using what he considered to be a high transmissivity of 3000 square metres per day and a high storativity of 0.16. The results of this simulation showed that after six months of continuous recharge at 270 megalitres per day over the nine proposed recharge sites, the water tables would have risen up to

6.5 metres above the starting level. After six months with no input, the water mounds created by the recharge would have evened out. However, his flow equation showed that 48 megalitres per day were lost due to flow over the northern boundary.

However, when Mr Hillier used what he considered to be the more appropriate parameters of storativity of 0.059 and a transmissivity of 2400 square metres per day, the simulation showed water levels rose over 11 metres at the pits, with the head building up into the clay layer. With an average rise of 8 metres, the outflow over the northern boundary would be 56 megalitres per day, so that a significant proportion of the recharge would be lost from the property and would not have been available for irrigation.
Turbidity.
Mr Hillier saw major difficulties in getting water into the aquifer. He said that the experience of the Water Boards and of the Commission in other areas showed that highly turbid water reduced infiltration rates. From this he concluded that artificial recharge is possible only when clean water is used.
Mr Hillier prepared an analysis of flows in the Burdekin River greater than 1500 megalitres per day, between 1972 and 1986. This showed that flood harvesting would have been feasible for about 57% of the days, but up to seven months could occur without opportunities to pump. However, turbidity of the water, which increases with high flows, remained a limiting factor.
An analysis of turbidity readings for the same period when the flow exceeded 1500 megalitres showed that generally when water was available for flood harvesting, turbidity levels were very high. Although an average of 204 days per year had sufficient flows for flood harvesting, only 139 days per year had turbidity readings of less than 2000 units, while only 34 days had turbidity readings of less than the preferred value of 100 units.
Mr Hillier contended that turbidity would have to be reduced to a suitable level before water could be used for recharge. He agreed that this could be achieved by settling out suspended matter by holding the water in ponds. However, he was of the opinion that fine suspended particles would not readily settle out and regular cleaning of the filter would be required, while the smaller particles would penetrate to a greater depth where cleaning could not be undertaken so easily.
Professor Volker agreed with this analysis, but stated that the periodic cleaning regime should take care of the problem. On the other hand, Mr Hillier conceded that turbidity readings could not give an accurate reading of total suspended solids and that

the extent of such solids could not be computed from turbidity readings.

Recharge trials conducted in the South Burdekin Water Board area on Shands and Iyah trenches led Mr Hillier to the conclusion that only 0.032 megalitres per day per metre could have been input into the aquifer of the Davco lands. He contended that to achieve the required input of 270 megalitres per day, more than 8.44 kilometres of trenches would be required, which would involve excavation of about 300,000 cubic metres of clay and require about 200,000 cubic metres of clean sand for backfilling the filter. He estimated that cleaning would be required every two to three weeks and many bores would be needed to extract the water stored in the aquifer.
Mr Hillier concluded that constructions of this magnitude would not appear to be justified for the small quantity of groundwater that could have been recovered. Therefore, in his opinion, artificial recharge would not have been a plausible option.
The evidence clearly shows that both Shands trench and Iyah trench are so different to those proposed for the Davco Irrigation Project, that the average results of those trials are not relevant. In any case, a report by Jones and Henry tendered in evidence, stated that the data was not sufficiently detailed or comprehensive to enable conclusions to be reached about artificial recharge.

Computer modelling of the operation of the Davco Irrigation Project. The Crees Model
Mr Mark Randell Crees, a research engineer particularly experienced in experimental and computer modelling investigation of groundwater recharge, gave evidence for the claimant. Mr Crees had developed a computer model to simulate the water storage and distribution system of the Davco Irrigation Project, designed to irrigate about 8,000 hectares of sugarcane. The model was developed and run to simulate the performance of the system over a 21 year period from 1967, prior to the completion of the Burdekin Falls Dam, using the recorded daily rainfalls, river discharges and pan evaporations for that period.
In Mr Crees' computer model, water entered the system by means of rainfall, as groundwater flow, or was pumped from the river, under constraints of a required minimum remaining river flow and the capacity of the pumps. The model was designed so that water pumped from the river would first go to satisfy any crop requirements, then to recharge the groundwater store, then to the surface storage. When crop requirements could not be met using water from the river, water was extracted first from the surface store, then from the groundwater store. If the crop requirement could not be met, a shortfall was recorded.
The parameters of the model were derived from published sources or from the work of others. These parameters included:
. minimum river flow that must go downstream after Davco pumping to

allow for downstream users, 1350 megalitres per day;

.capacity of river pumps, 530 megalitres per day (from McIntyre and Associates' report);

. net area covered by crops, 7,800 hectares;

.storage capacity of surface store, 5,976 megalitres (from Mr Beckhaus' report);

.groundwater storage capacity, 53,760 megalitres (from Mr Woolley's report);

. length of artificial recharge pits, 2,700 metres (9 pits each 300 metres);

.rate per metre of recharge trench at which water can be introduced, 0.1 megalitres (from Professor Volker's report);

.amount of groundwater flow available for use, 6 megalitres per day (from Mr Woolley's report).

The model was set so that water could not be extracted from the groundwater storage below the 1971 lowest recorded water level. It was assumed that one-third of the 18 megalitres per day of natural groundwater flow that was estimated by Mr Woolley would be available, with an outflow of 12 megalitres per day across the northern boundary of the Davco land.
The results of the simulations showed that the system supplied 100% of optimum water requirements in all but three years, and greater than 99% of optimum in two of those. In 1969 the system was able to supply 55%. The average irrigation water supplied over the 21 years was 9.3 megalitres per hectare per year, with up to 13.6 megalitres per hectare per year supplied when required.
The simulation also showed that if only 8 megalitres per hectare was available, there would be a number of years when less than 100% of optimum crop requirement was supplied.
The model required 1.39 megalitres per hectare per year from the aquifer, compared with Mr Woolley's estimate of sustainable yield of 2.5 megalitres per hectare per year.
In Professor Volker's opinion, the results of the model showed that the Davco Irrigation Project would have been a feasible project, capable of supplying irrigation quantities to meet crop requirements in all but one of the 21 years of the simulation period. A sensitivity analysis showed that the project remained viable for a large number of combinations of parameters and capacities.
Dr Harding's comparative model.

Dr Paul Elias Harding, a hydrologist with Chaseling McGiffin Pty Ltd, gave evidence for the respondent and presented a comparison between the Crees computer model and a water harvesting model developed by the Department of Primary Industries. The DPI model also simulated the diversion of water from the river into a combined surface and groundwater store. It ignored, among other things, the effect of rainfall, deep drainage from irrigation, groundwater through-flow and assumed no evaporation.
Dr Harding said that the DPI model was set with the same starting flows and pump capacities as the Crees model. It had a constant annual demand from the combined storage set at 74,847 megalitres per annum (about 9.6 megalitres per hectare), which was the mean irrigation demand calculated by Mr Crees. In addition, the DPI model started with on-farm storage as empty, while the Crees model assumed that the initial groundwater store contained about 20,000 megalitres.
The DPI model was used to simulate the same period as the Crees model (1967 to 1987) using equivalent parameters, the capacity of the combined storage, 59,735 megalitres, being equivalent to groundwater store of 53,760 megalitres and surface store of 5975 megalitres. The starting flow at the Clare gauge was set at 1350 megalitres per day and the pumping rate at 530 megalitres per day.
Allowing for the differences between the two models, the results were reasonably consistent. Both models predicted a major deficit in the water required by the crop in 1969, although they disagreed as to the amount of it. The DPI model also predicted a deficit in 1967 of 6,397 megalitres, but because it did not take account of the inflow to groundwater store from through flow or the infiltration of irrigation water, an adjustment of 11,000 megalitres must be made before there was a deficit on the Crees model.

The Court then referred to decisions of the High Court in The Commonwealth v. Milledge (1953-1954) 90 C.L.R. 157 at p.164 and Crisp and Gunn Co-Operative Ltd v. Hobart Corporation (1963) 110 C.L.R. 538 at p.546.

The Acquisition of Land Act 1967 makes no provision for a head of claim for disturbance. However, as the Land Appeal Court recognised in Murray's case, it is part of the special value to the owner and often separately assessed. This Court has recognised that in appropriate cases disturbance can be awarded in accordance with the test in Harvey v. Crawley Development Corporation (1957) 1 All E.R. 504 at p.507. That is, that any loss sustained by the dispossessed owner which flows from a compulsory acquisition may properly be regarded as the subject of compensation for disturbance, provided that it is not too remote and that it is the natural and reasonable consequence of the dispossession of the owner. However, the claimant must prove that his claim comes within these criteria.
It is well established that where compensation is assessed on the basis of a more profitable use, there can be no award of disturbance on the basis of its actual use. In the present case, I am not convinced that the assessment of compensation for the effluent area of the subject land on the basis of its value as irrigable/arable land is a higher and better use than its present use. Mr Eales thought that it was at least as valuable. However, it is clear that its use for effluent purposes was essential to the operation of the feedlot and it might well be much more valuable.
In my opinion, it has been established that at the date of resumption it was not possible to relocate the effluent disposal area from Lot 47. The alternative locations were, apart from the additional cost, just not available. Lot 1 on RP 36390 was too small and Lot 8 on RP 36390 was being resumed. Therefore, with the resumption of Lot 47, the feedlot could no longer operate. Furthermore, even if it had been possible to relocate the effluent area, it is most unlikely that the feedlot would have obtained the necessary approvals because of the respondent's proposed development of the resumed area for cane farms. It would have been quite incompatible to have a feedlot with an 8000 head capacity in such a closely settled area.
I am satisfied that the losses sustained by the claimant are not too remote and are the natural and reasonable consequences of the resumption of the effluent discharge area of the feedlot. Therefore, they fulfil the test propounded in Harvey v.

Crawley and the claimant has a valid claim for disturbance. Since it was not possible to relocate the effluent disposal area either to Lot 1 or Lot 8, the respondent's contention that compensation for disturbance be limited to the difference in cost of relocation, must fail.

In the circumstances, the approach adopted by Mr Eales is the only evidence I have of the assessment of disturbance and I propose to adopt it, with one qualification. I am not convinced of the validity of the claim for loss of business income until the feedlot was relocated.
For various reasons explained by Mr Geoffrey Cox, the feedlot had not achieved its profit-making potential. There was no evidence that the Kalamia Plains partners ever considered relocating the feedlot elsewhere, where they would have been required to comply with the feedlot licensing requirements introduced in 1989. Indeed the evidence is that the application to increase the capacity to 20,000 head was made, not to continue the feedlot operation, but as a preliminary to seeking equity funding for the establishment of an abattoir.
It would seem from the evidence that the claimant was not deprived of his interest in a feedlot that was producing a profit of $100,000 per annum. The partnership accounts show that apart from 1988/89, the feedlot did not achieve a profit approaching that figure. In my opinion, he has been deprived of the opportunity to operate the feedlot in a more profitable manner.
Therefore, I am of the opinion that disturbance to the feedlot because of the resumption of Lot 47 should be confined to the loss of the improvements as assessed by Mr Eales. His figures in this regard were not challenged. Therefore, disturbance to the feedlot is assessed at $435,850. The claimant's two-thirds interest is $290,500.

Valuation and Legal Fees
During the course of the hearing the parties agreed to the claim for legal fees for

$2000. However, the claim for valuation fees of $10,000 remains unresolved.

Mr Eales said that he was instructed on 4 October 1991 to prepare a valuation and had commenced his research. However, the claim was required to be lodged quickly and when it was lodged on 23 October 1991, Mr Eales had not finalised his valuation. The amount claimed for valuation fees of $10,000 was for the work he had undertaken up to that time at the normal charge out rate over three weeks. He had not, at the time of giving his evidence, submitted an account to the claimant.
Mr Eales explained that he could not complete a valuation prior to the lodgment of the claim as various experts' reports were required and he wanted to be certain that the elements of the Davco Irrigation Project were possible. He did not advise that the claim should be $6.3 million.
In my opinion, the claim for $10,000 in respect of the valuation work undertaken by Mr Eales up to the date of preparation of the claim must fail. It is well established that the only professional fees recoverable as disturbance are those which were

incurred in the preparation of the claim for compensation itself and not for the work done to the time of lodgment of the claim.

Mr Eales' evidence was that he was able to provide little assistance to Mr Geoffrey Cox in the preparation of the claim. He said that at the time he "... would not have a clue". He could provide him only with a very wide range of values and details of some sales. Mr Cox drafted the claim virtually without valuation assistance. In these circumstances, no amount should be awarded for Mr Eales' contribution to the preparation of the claim.
As the parties have agreed to the amount of $2000 for the legal fees incurred in connection with the preparation of the claim, that amount will be awarded.

Interest
At the request of Counsel for the claimant and with the agreement of Counsel for the respondent, I will leave the matter of any interest to be awarded under s.28 of the Acquisition of Land Act 1967, for further argument after the delivery of this judgment.

Determination
I determine compensation payable by the respondent to the claimant under all heads of claim at Four million, nine hundred and sixty thousand, four hundred dollars ($4,960,400), being made up as follows:
Value of the land taken  $ 4,542,600
Structures:     Shed              $ 90,900
Yards             $ 34,400  $ 125,300

Disturbance:

Feedlot $ 290,500

Legal Fees $ 2,000 $ 292,500

$4,960,400

(JJ Trickett)

Member of the Land Court

[1995] QLC 55

17 July 1995