Doolan Properties Pty Ltd v Council of the Shire of Pine Rivers
[1998] QLC 76
•6 July 1998
|
BRISBANE
6 July 1998
Re: Claim for compensation - Acquisition of Land Act 1967
Council of the Shire of Pine Rivers
(A96-07)
Doolan Properties Pty Ltd
v.
Council of the Shire of Pine Rivers
DECISION ON DISTURBANCE ITEMS AND COSTS
Introduction
In August 1995 the respondent Council resumed from the claimant some 1,071 m² of land along Queens Road and South Pine Road, Everton Hills, for road purposes. The claim for compensation was referred to the Land Court for hearing and determination.
In a decision dated 24 December 1997, this Court determined that compensation in the sum of one hundred and forty-two thousand dollars ($142,000.00) is payable by the respondent Council to the claimant in relation to the value of the land taken by the Council, injurious affection and severance.
When delivering the decision, I indicated to the representatives of the parties that I would hear submissions in relation to:
(a) the rate of interest payable on the amount of compensation;
(b) what amount should be awarded in relation to items of disturbance;
(c)whether any of the disturbance costs have been paid by the claimant and, if so, when they were paid and the rate or rates of interest payable in relation to those costs; and
(d) any application for costs.
It was agreed that submissions be made in writing. Submissions were made up to 9 April 1998. The claimant’s submission also dealt with an apparent arithmetical error in the judgment on 24 December 1997. That matter is considered near the end of these reasons for decision.
Rate of interest payable
The Council submitted, and the claimant agreed, that interest should be awarded at the rate appropriate according to the schedule to a document headed “Interest Rates Compensation Awards - Land Acquisition 1986-1997”, a document prepared and maintained by the Land Court Registry.
The claimant noted, in relation to some disturbance items, that payment of fees to some consultants was deferred. The dates of payment, and the rates of interest payable in relation to the compensible amounts already paid, are considered later in these reasons for decision.
Disturbance items
The original claim for compensation identified town planning, architect, quantity surveyor, valuer, proprietor, engineer, barrister and solicitor costs totalling $234,026.80 (Exhibit 3). The amended claim identified town planning, architect, quantity surveyor, valuer, engineer, barrister and solicitor costs totalling $93,772.97 (Exhibit 19). Documents were tendered providing detailed accounts for the disturbance items (Exhibits 7 to 13, 21 and 23).
The claimant persisted with the claim for disturbance items identified at the hearing and particularised in Exhibit 19 but, in the written submission dated 3 April 1998, made a “corrected claim”, amending some of the figures incorrectly advanced at the hearing.
The claim as finally put is for the sum of $93,312.97, calculated as follows:
Town planning Victor Feros $ 3,167.50
Architect ETS Group $13,400.00
Quantity surveyor Andy Steele & Associates $ 7,140.00
Valuer Taylor Byrne $ 9,100.00
Engineer Cushway Blackford
& Associates Pty Ltd $ 3,000.00
Engineer Ove Arup & Partners $11,520.00
Barrister Tim Trotter $ 2,800.00
Solicitor Clarke and Kann $43,185.47.
The Council:
(a)accepted that the payment to Tim Trotter was proper and that the amount involved was reasonable;
(b)accepted that payments to Taylor Byrne and Clarke and Kann were proper, but disputed the appropriateness of amounts paid or payable; and
(c)disputed that payments to Vic Feros, the ETS Group, Andy Steele & Associates, Cushway Blackford & Associates, and Ove Arup & Partners were amounts that could be described as disturbance costs in these proceedings.
Given the amounts of money in issue, it is appropriate to rule on the submissions about each of the contested items. Those submissions must be considered in light of the applicable law, a preliminary discussion of which is found in the reasons for judgment in this matter dated 24 December 1997.
It is appropriate to survey briefly some recent decisions of the Land Court and Land Appeal Court to ascertain guidelines for what types of claims the courts have allowed, and have not allowed, in Queensland. A comprehensive review of the authorities is contained in the judgment of the current President of the Land Court in Thirty-Fourth Philgram Pty Ltd v The Crown (1992-93) 14 QLCR 13 at 42-52, and that need not be repeated here.
The overriding principle is that compensation for disturbance is payable provided that the loss sustained by the dispossessed owner “is not too remote” and that “it is a natural and reasonable consequence of the dispossession of the owner” (Harvey v Crawley Development Corporation [1957] 1 All ER 504 at 507 per Romer LJ). Professional costs are allowed in Queensland as items of disturbance where they meet those criteria in relation to the preparation and lodgment of a claim for compensation and are incurred within the relevant period. So, for example, the Land Appeal Court stated in Brisbane City Council v Lamont (1980-81) 7 QLCR 120 at 127:“This Court and the Land Court have held that valuation fees and legal fees incurred by a dispossessed owner up to the date of lodgment of the claim in the Court are properly allowable as items of disturbance.”
Subsequently, in Merivale Motel Investments Pty Ltd v Brisbane Exposition and South Bank Redevelopment Authority (1985) 10 QLCR 268 at 287-8, the Land Appeal Court stated:
“Our charge as judicially interpreted is to compensate for items which are the reasonable and not too remote consequence of the resumption (Harvey v Crawley Development Corporation (supra)). Dispossessed owners are entitled to seek professional advice and assistance in order to comply with the requirements of the Acquisition of Land Act insofar as lodging claims for compensation are concerned. Providing the valuation advice is not frivolous or lacking in bona fides, a fee based on a claimant’s valuation should be reimbursed. To refuse this would be lacking in fairness and generosity to the claimant and too restrictive of its personal right of choice irrespective of whether or not the claim is successful.”
In support of the claimant’s entitlement to recover various costs incurred in preparing the claim, Mr Gore QC referred to the “ordinary rule” that professional costs incurred in the preparation of the claim are recoverable notwithstanding that the valuation approach on which the claim was based is later held to be incorrect, provided only that that approach is not frivolous or lacking in bona fides. He cited the decision of the Land Appeal Court in Stanfield v Brisbane City Council (1990) 70 LGRA 392, 13 QLCR 32, where the Court (at LGRA pages 416-17) quoted with approval the passage set out above from the judgment of the Land Appeal Court in Merivale Motel Investments Pty Ltd v Brisbane Exposition and South Bank Redevelopment Authority.
The Land Appeal Court in Stanfield went on to note that it had been the practice of the Land Court and the Land Appeal Court to allow, as an item of disturbance, the costs incurred for legal and valuation fees during the period from receipt of the notice of intention to resume up to the date of lodgment of a claim in court. The Court considered that there may be cases where the variation of a claim for such fees may be required, but no such grounds applied in that case, even though the Court had determined that the valuation approach on behalf of the claimant was not the proper approach.
Mr Gore submitted that, in the present case, the claimant had adopted a conventional before-and-after valuation approach. It involved reference to a technique which the Council’s witnesses said could not be ruled out. Even if the approach is not accepted by this Court, it could not be found to be frivolous or lacking in bona fides or completely untenable from the beginning. Accordingly, he submitted, the claimant’s disturbance costs should be recovered in full.
Mr O’Regan used the first sentence of the passage just quoted to submit that costs are only recoverable if they are reasonable. The Court’s discretion is not limited to rejecting only those claims which are frivolous or lacking in bona fides. He agreed that one way of doing justice in this case might be to award a proportion of the amount for disturbance which the claimant sought.
As I read the relevant passage in Harvey v Crawley Development Corporation, the word “reasonable” is used to describe the link between the cost and the dispossession, that is, the disturbance cost for which compensation is sought must be a “reasonable consequence of the dispossession of the owner”. In that passage, “reasonable” does not qualify the quantum of the costs incurred. That said, however, the Court is unlikely to award an amount which is unreasonably large even though the cost may have been incurred as a consequence of the dispossession.
One issue in this case is whether there are any restrictions on the types of professional advice and assistance for which a claimant might be compensated. Although there was no dispute that some amounts were compensible, the Council seemed to be submitting that only reasonable legal and valuation fees should be allowed.
It is clear that the “costs and expenses” incurred in relation to a notice of intention to resume followed by a notice of discontinuance of resumption and which are compensible under s 16 of the Acquisition of Land Act are not confined to legal fees but extend to all out of pocket expenses reasonably incurred by the landowner providing they were the natural and reasonable consequences (directly or indirectly) of the service of the relevant notices. In Stanfield v Brisbane City Council, (unreported decision of Land Court, dated 26 July 1989) the then President of the Land Court allowed a claim for professional fees which included valuation, town planning and legal fees. On appeal, the Land Appeal Court confirmed this award without any adverse comment on the Land Court’s reasoning ((1990) 70 LGRA 392, 13 QLCR 32; see also Emanuel (No 14) Pty Ltd v Council of the Shire of Caboolture (1994) 15 QLCR 130 at 135-6). Although compensation for costs and expenses provided for in s 16 is not directly attributable to the heads of compensation under s 20, I agree with the current President of this Court that the costs and expenses provided for in s 16 are disturbance items to which the test propounded in Harvey v Crawley Development Corporation applies (see Emanuel (No 14) Pty Ltd v Council of the Shire of Caboolture (1994-95) 15 QLCR 130 at 139).
The Court of Appeal in England has allowed compensation for fees which a dispossessed owner has had to pay a surveyor, valuer or agent to prepare a claim for compensation (Minister of Transport v Lee [1965] 2 All ER 986), and accountancy fees reasonably and properly incurred by a claimant in preparing the claim for compensation (London County Council v Tobin [1959] 1 All ER 649).
There are instances where, in order to give advice about the quantum of compensation to be claimed, a valuer needs other professional advice, say that of an engineer or town planner. There seems to be no logical reason for rejecting a claim for professional advice other than legal or valuation advice, so long as the costs incurred satisfy the criteria in Harvey v Crawley Development Corporation and the cost of obtaining that advice relates to work done in the period between the notice of intention to resume the land and the lodgment of the claim for compensation (see Merivale Motel Investments Pty Ltd v Brisbane Exposition and South Bank Redevelopment Authority (1984-85) 10 QLCR 175 at 206-7). The claimant, however, must prove that the various items of claim come within the criteria (see, for example, Brisbane City Council v Lamont (1980-81) 7 QLCR 120 at 127).
Costs which have been allowed include costs of seeking counsel’s advice where the case is complex (Thirty-Fourth Philgram Pty Ltd v The Crown (1992-93) 14 QLCR 13 at 51). Costs which have not been allowed include claims for legal costs in relation to work done before receipt of a notice of intention to resume and other costs which occurred after the claim was lodged or for work not connected with the preparation of the claim (Thirty-Fourth Philgram Pty Ltd v The Crown at 51-2), and the claimant’s costs of attending meetings with professional advisers to prepare the claim for compensation (Thirty-Fourth Philgram Pty Ltd v The Crown at 52 and cases cited there).
Each of the amounts claimed in this case must be assessed bearing in mind the principles and findings just summarised and the dates on which relevant events occurred. The three notices of intention to resume the resumed land were dated 16 November 1994 and were sent to the landowner in letters dated 17 November 1994. By Proclamation dated 17 August 1995 and published in the Government Gazette on 18 August 1995, the Governor declared that the resumed land was taken. In January 1996, the claimant lodged with the Council a claim for compensation. The claim was amended on 12 February 1996 and on the next day it was referred to the Land Court for determination.
Various steps were taken by the claimant and its advisors during the period between the notice of intention to resume and the lodgment of the claim for compensation. Those actions must be considered in the context of other action taken, before and during that period, in relation to the proposed development of the subject land. In particular, it is necessary to bear in mind the steps that were taken for the rezoning of the subject land and the preparation of plans for the development of the remaining land. Those events were recorded in the reasons for decision delivered on 24 December 1997 and need only be summarised here.
The history of road widening proposals for South Pine Road dates back to at least March 1993, when the Council requested the Shire Engineer to report on the timing, needs and approximate cost for the road widening of part of South Pine Road, Everton Hills.
The subject land (and neighbouring land) was purchased late in 1993 by Mr William Edward Doolan for the purpose of developing a shopping centre. The parcels comprising the subject land were variously zoned Commercial (one lot with frontage to South Pine Road) and Home Industry (two lots with Queens Road frontage). Before entering into a contract to purchase the land, Mr Doolan held discussions with consultants and the Council to obtain preliminary views about the viability of the site for a shopping centre and the likelihood of an application for rezoning being looked upon favourably.
When he entered into the contract to purchase the land in November 1993, Mr Doolan was aware that part of the land had been resumed by the Council and he thought it unlikely that any further land would be resumed.
In March 1994, Mr Doolan lodged with the Council a combined rezoning and 3B application. The first component of the application was to have the land excluded from the Commercial and Home Industry zones and included in the Special Facilities (Shop, Late Night Shop, Craft Shop, and Column 3A and 3B Uses in the Commercial Zone) zone. The application (including a Concept Plan) was prepared by Rhonan O’Brien Architects & Designers Pty Ltd. Mr Doolan was advised in March 1994, soon after it was lodged, that the combined application was unlikely to succeed in the form lodged because the Council was proceeding with deliberations on road widening which would probably involve a resumption of land to a depth of three metres. The combined application was amended to take into account a possible resumption. The Council informed the claimant or the claimant’s consultants about developments in relation to the road widening proposals in April, August, September, November and December 1994 and January 1995 (see documents in Exhibit 15).
In September 1994, Mr Doolan was advised that the Council was likely to resume land required for road widening and that, although the Council had not determined the extent of road widening, it was clear that the road widening would affect the rezoning application. He was invited to amend the application so that the design would not compromise the Council’s road widening proposals.
Following discussions with the Council and amendment of the application, the Council advised Mr Doolan in November 1994 that the rezoning and 3B components were approved subject to certain conditions. The rezoning conditions included a condition that development would not be permitted to comprise the area designated for Future Road Widening on a plan adopted by the Council on 31 October 1994. Other conditions related to the completion of interim frontage roadworks, site access, and frontage roadworks and intersection contribution.
The rezoning approval described the layout as depicted on the Concept Plan (Drawing No SK.CO1 prepared by Rhonan O’Brien) received in September 1994 as “generally acceptable” but “not approved”. The Council required the applicant to prepare a concept plan to the satisfaction of the Council for inclusion in the Rezoning Deed. The concept plan, when approved by the Council, would be the Plan of Development, and development of the site would be in accordance with that plan.
The ETS Group of architects was retained by the claimant in January 1995 to prepare a design for the development of the subject land. The brief included evaluating alternatives, advising on the “optimum solution” and developing drawings sufficient for submission for building approval. After initial discussions and preparation of several design alternatives, a concept was selected for development in January 1995. Mr Russell Lister, an architect with the ETS Group, said that, when they first became involved with the project, the ETS Group was told by the Council about the resumption and so prepared designs on the basis that the resumption had taken place.
The ETS Group submitted amended concept plans (SPO2E, SPO3E, SPO4A, SPO5B) to the Council in March 1995. In April 1995, the Council sought “further clarification and/or amendments” to the plans in relation to specified issues. In October 1995 the Council advised Mr Doolan that the ETS Group’s Plan No 96645 SPO1 Issue ‘B’ had been approved by the Council as the Plan of Development. The claimant’s case in support of the claim for compensation was put on the basis that designs prepared by the ETS Group provided the best indication of the potential of the remaining land.
It is clear from the events just summarised that, from an early stage, the claimant was required by the Council to take the proposed resumption into account in the design of the proposed development. The extent of the road widening, however, varied from time to time. It should also be noted that, although the land was subsequently rezoned, it was, at the date of resumption, still partly zoned Commercial and partly Home Industry. There was no dispute, however, that at the date of resumption the subject land and the remaining land had potential for retail and commercial development, specifically a neighbourhood shopping centre that would meet the conditions on which rezoning was approved.
I agree with the Council that the costs incurred in finalising the rezoning process or in testing the commercial viability of the shopping centre on the remaining land should not be allowed. I do not agree, however, that professional costs should be disallowed where they were incurred in preparing a before resumption valuation of the subject land which allowed for some possible use of the resumed land. Those costs related to the preparation of the claim for compensation and, although much of the claim was unsuccessful, the costs were not incurred unreasonably and the valuation advice was not frivolous or lacking in bona fides.
I turn now to consider each of the amounts claimed.
Victor Feros - $3,167.50: The amount claimed is the total of various items (mostly charges for the time taken by Mr Feros and Mr Mulcahy) which were described in the memorandum of fees dated 26 April 1996 and headed “RE: DOOLAN PROPERTIES PTY LTD - RESUMPTION OF LAND AT SOUTH PINE ROAD AND QUEENS ROAD, EVERTON HILLS” (Exhibit 10) as “taking instructions contained in the Brief of 13 September 1995, to review of briefed materials, to site inspection, to conference with client, solicitor, valuer, architect on 5 October 1995, to researches and preparation of Town Planning Report and for services and advices generally to 31 December 1995”.
The account noted that a deposit of $2,500.00 had been paid on 18 October 1995. The outstanding balance of $667.50 was apparently paid during or by July 1996. I am satisfied that the costs were incurred within the relevant period.
The Council submitted, first, that the Town Planning Report was prepared in August 1996 for the hearing of the matter and not for the lodgment of the claim. Although there was a Town Planning Report dated August 1996 in evidence in the proceedings (Exhibit 4), the memorandum of fees dated 26 April 1996 stated that the amount sought was for work done (including the preparation of Town Planning Report) before 31 December 1995, that is, before the claim for compensation was lodged.
The Council also submitted that, in any event, the fees charged for it are not legal or valuation costs. For the reasons given earlier, the fact that the professional advice was town planning advice rather than legal or valuation advice is no bar to the payment of the costs incurred, so long as the cost is not too remote and is a natural and reasonable consequence of the dispossession of the owner and the advice was given in relation to the making of the claim for compensation.
Having rejected the Council’s submissions challenging the basis of the claim, and in the absence of any attack on the amount claimed, I am satisfied that the claimant is entitled to compensation in the sum of $3,167.50 for costs incurred in obtaining advice from Mr Feros.
ETS Group - $13,400.00: The amount claimed in respect of the costs of work undertaken by the ETS Group is the sum of amounts itemised on three invoices (Exhibit 23).
The first invoice, headed “PROPOSED COMMERCIAL DEVELOPMENT AT EVERTON HILLS”, was dated 31 July 1995 and was for $2,110.00 being “professional fees in connection with the above project. Analysis of design options relevant to the development potential of the site, with and without road resumptions.” It included the cost of client discussions, meetings with solicitors, liaison with CAD Operator in preparation of alternate design solutions, and the preparation of design options.
The second invoice, headed “EXTRA WORK (LEGAL CLAIM PINE RIVERS SHIRE COUNCIL) TO PROPOSED COMMERCIAL DEVELOPMENT AT EVERTON HILLS”, was dated 31 October 1995 and was for $10,750.00. It included the costs of attending meetings, and the design and preparation of drawings.
The third invoice, also headed “EXTRA WORK (LEGAL CLAIM PINE RIVERS SHIRE COUNCIL) TO PROPOSED COMMERCIAL DEVELOPMENT AT EVERTON HILLS” was dated 30 November 1995 and was for $540.00. The costs were described as fees for research building line valuer, liaison with solicitors and town planners, and supplying additional document.
The Council suggested that the claimant had added a further claim of $13,310.00 to the $13,400.00 originally claimed. It is true that the ETS Group’s report dated 6 August 1996, which recites the nature and extent of the Group’s work for the claimant, concluded:“Our costs to prepare the plans depicting the development as if no land had to be resumed and works associated with the preparation of the claim for compensation are:
Invoiced to date is $13,405.00
Completed but yet to be invoiced $13,310.00 $26,715.00”.
The claim finally put, however, did not include the second amount. Thus the Council’s suggestion is without foundation.
More relevant is whether the three invoices totalling $13,400.00 included work which would have been done in any case for the development of the remaining land. The Council contended that the ETS Group was retained by the claimant as early as January 1995 - a year before any claim for compensation was made - to prepare a design for a shopping centre. The ETS Group was working on the basis that the resumption would take place, and the focus of its work was on assessing the commercial viability of the design taking into account the resumption. It was submitted that the focus of the work was not on making a claim. Rather, the costs were too remote from the claim and would have been incurred by the claimant in any event. The Council also argued that the costs incurred are not reasonable legal and valuation costs associated with making the claim for compensation.
The evidence shows that, in December 1994, the ETS Group prepared a fee proposal for a range of services including schematic design and design development. A contract for those works was signed in January 1995. After initial discussions and the preparation of several design alternatives, a concept was selected for the development in January 1995. As noted earlier, the ETS Group prepared plans in relation to the rezoning application, including a plan which became the Plan of Development. The cost of that work is not compensible in these proceedings.
On 22 June 1995, however, the ETS Group was retained by the claimant to prepare plans showing the scope of the development as if the resumption of the land had not taken place (Plans RO1(c), RO2(b) and RO3(d)). Those plans were relevant to the approach taken when making the claim for compensation. Mr Steele relied on them in preparing his estimates.
The difficulty is separating the costs of work undertaken by the ETS Group in connection with the rezoning application and the development of the remaining land (which would have been incurred irrespective of the resumption) from those costs which are the reasonable and not too remote consequence of the resumption, being linked to the lodgment of the claim for compensation.
Reading the three invoices in light of the history of the ETS Group’s involvement in the development project, I am satisfied that some of the work done related to the rezoning application and the development of the remaining land. Although aspects of that work assisted the valuer in determining the amount of compensation claimed, it was also work which would have been done for the development of the land irrespective of the claim for compensation. The most appropriate way to deal with this item is to apply a broad brush approach and allow half of the sum claimed, leading to compensation in the sum of $6,700.00.
Andy Steele and Associates - $7,140.00: Mr Steele described his costs as being “professional fees in respect of the analysis of the ‘with resumption’ and ‘no resumption’ scenarios” (Exhibit 8). The work was “carried out on the instruction of Doolan Properties Pty Ltd for the purpose of preparing a claim for compensation” and the fees relate to time spent with solicitors, valuers and town planners “for the purpose of the lodging of the compensation claim”.
Mr Steele stated that, in October and November 1995, he completed estimates for the development based on a “no resumption” scenario and a “with resumption” scenario. He was instructed to prepare the costings for the valuer retained by the developer, Mr Walsh of Taylor Byrne. In preparing the estimates, Mr Steele had reference to plans prepared by the ETS Group and drawings prepared by Ove Arup. His estimates were dated 10 November 1995 (Exhibit 8).
The Council submitted that there was no justification for preparing “before” and “after” assessments solely for the purposes of valuation, particularly as the ETS Group knew that any design had to take into account the setback.
I accept, however, that the approach taken was reasonable in determining what claim for compensation should be made. In the absence of any challenge to the amount claimed, and any information which suggests that the amount charged was unreasonable, I will allow compensation in the sum of $7,140.00.
Taylor Byrne - $9,100.00: The claim in relation to the valuation fees of Taylor Byrne was quite explicit and precise.
“Our fees compensable as an item of disturbance should be in the sum of $9100 in accordance with Item 12(b) of the Scale of Fees & Charges recommended by the Australian Institute of Valuers and Land Economists.
This fee relates to the recommended valuation fee for resumption purposes and does not include any additional costs incurred in further preparation for litigation of the claim.” (Exhibit 7)
Item 12(b) of the Scale of Fees and Charges issued by the Australian Institute of Valuers and Land Economists, effective 1 January 1992, states:
“12. Acquisitions, Resumption and Litigation
This Scale shall apply to valuations for all matters relative to litigation ...
(b) Partial Acquisition of Property
In the case of partial acquisition of freehold property where a Valuer is required to assess the value of the portion and injurious affection or betterment of the remainder, fee could be twice the appropriate standard fee based on the value of the property prior to acquisition.”
The Council, quite properly, noted that item 12 applies to costs associated with litigation and not to fees for a valuation prepared for the purpose of making a compensation claim. It is appropriate to recognise that while some claims for compensation may be litigated others will settle. A claim for compensation is made to the constructing authority, not to the Land Court. If negotiations in relation to that claim are unsuccessful, the claim may then be referred to the Court for determination. If a matter is referred to the Land Court, the costs associated with the litigation are dealt with separately. They are not to be confused with, or disguised as, costs which can be claimed as compensation connected with the lodgment of the claim.
The Council conceded that any costs incurred before 13 February 1996 in preparation of the claim would be allowable if they are reasonable and in accordance with the Scale of Fees and Charges.
The Council submitted that it is more appropriate to calculate the fee in this case by reference to the Ready Reckoner in the Institute’s Scale of Fees and Charges. The suggested fee, based on the capital value of the property of $1.17 million, is between $2,550.00 and $4,050.00. In the Council’s submission, that would seem to be reasonable given the complexity of the matter. I am satisfied that the approach suggested by the Council is appropriate.
It is important to recognise that valuation work of this nature initially and principally provides the basis of a claim which may be resolved by negotiation. It may also be the basis of a claim referred to the Land Court. If a claim is referred, the claimant is not bound irrevocably to seek the sum first calculated. That amount may be amended at the hearing if more detailed information has been made available to the claimant’s valuer in the course of negotiations or in the course of preparing evidence to be presented to the Court. The Acquisition of Land Act expressly contemplates and allows for the amendment of a claim. A substantial amendment by either party at the start of or during the hearing may become significant when the Court determines what compensation (if any) is payable and has to decide whether to make an award of costs (see Chief Executive, Department of Transport v Nadco Pty Ltd, A96-05, unreported decision of Land Appeal Court dated 23 February 1998; Commissioner for Railways v Buckler [1996] QdR 18, at 23-4 per McPherson JA).
It is thus appropriate for a well informed and defensible valuation to be prepared for the purpose of making a claim for compensation. It is not, however, appropriate to compensate for disturbance costs at the rate which would apply to a valuation prepared for the purpose of litigation.
Given the range of factors which, it seems, were taken into account by Taylor Byrne in preparing the valuation for the purpose of making the claim for compensation, an appropriate sum is at the upper end of the range in the scale of fees for properties valued between $1 million and $2 million.
The claimant is entitled to compensation for valuation fees in the sum of $4,000.00.
Cushway Blackford & Associates Pty Ltd - $3,000.00: A written statement in August 1996 by David Blackford, a consulting engineer with Cushway Blackford & Associates Pty Ltd, included the following:“Cushway Blackford & Associates Pty Ltd was retained by the claimant Doolan Properties Pty Ltd to provide professional engineering advice in respect of a comparison of two building proposals for a shopping centre development ... at Everton Hills. The two building proposals are those prepared by the ETS Group, Architects, showing the development with the land resumed and the development as if no resumption had taken place. The advice was given for the purposes of preparing a claim for compensation against the Pine Rivers Shire Council. ... The fee for this work was $3,000.00” (Exhibit 11).
The Council noted that the statement did not detail the time or nature of the assessment work for the preparation of the claim. It submitted that the work was done on a “before” and “after” resumption scenario and in all probability was done in preparation for the hearing rather than for the purpose of making a claim for compensation. The Council further submitted that there was no justification for preparing “before” and “after” assessments solely for the purposes of valuation. As indicated earlier, I do not agree with those submissions. Various factors were taken into account in determining the amount of compensation claimed and, while these engineering costs may be unusual, I do not consider them to be too remote. The claim of $3,000.00 is allowed.
Ove Arup & Partners - $11,520.00: The written statement of Roger Caswell, an engineer with Ove Arup & Partners, described the firm as the engineers appointed to advise the claimant “in respect of a proposed shopping centre at Everton Hills” (Exhibit 13). In the course of so advising, the firm undertook investigations of structural and civil engineering designs in respect of the development. Professional fees related to the investigation of two parallel schemes - one based on land being resumed and one based on land not being resumed. The work involved investigation of bulk earthworks and structural design in respect of each scheme. Itemised accounts in evidence show how each component of the total sum was calculated.
Because Ove Arup undertook a “before” and “after” resumption analysis similar to that undertaken by Andy Steele & Associates and Cushway Blackford & Associates, the Council reiterated the submissions made in relation to those other costs. More specifically, the Council pointed to the statement by Mr Caswell that the work involved:(a)investigation of bulk earthworks design and documentation for the no resumption option;
(b)structural design and documentation for the no resumption option; and
(c)advice and discussions with client for comparison of the land resumption option and no land resumption option.
The accounts tendered in evidence show that the amount claimed in these proceedings is, as Mr Caswell stated, confined to professional fees in respect of “the work carried out for the no land resumption option and advice/discussions with our client and his representatives”.
In the period from 28 February 1995 to 29 February 1996, Ove Arup and Partners rendered ten accounts to the claimant totalling $66,000.00. The invoices were variously headed:
Structural design to Schematic Design Stage - No land resumed
Structural design to Schematic Design stage - No Land Resumption Option
Civil Engineering Services - Land Resumption Option (3 invoices)
Structural Engineering Services - Land Resumption Option (3 invoices)
Structural design to Developed Design Stage - Land resumption Option
Structural design to Schematic Design Stage.
Taking into account the dates when the costs were incurred, the way in which the items were identified from the accounts rendered for other aspects of the development, and the references by Mr Steele to the Ove Arup calculations, I am satisfied that the costs totalling $11,520.00 were for work which was relevant to the assessment of the value of the subject land before resumption, and which was taken into account in the preparation of the claim for compensation, and which would not have been done had the resumption not taken place. Accordingly I will allow the claim of compensation for $11,520.00.
Clarke and Kann - $43,185.17: The Council submitted that, although reasonable costs incurred in preparation of the claim until 13 February 1996 are payable, it is “unlikely” that legal work warranting fees of more than $43,000.00 was done in the preparation of a claim for compensation. Further, the Council surmised that part of the work for which fees were claimed relates to general advice concerning the preparation of rezoning documentation (particularly the plan of development which becomes part of the rezoning deed) and work related to preparation for the hearing rather than the claim for compensation.
A written statement dated 7 August 1996 by Mr Terence John McBride, then a member of the firm Clarke and Kann, stated that Clarke and Kann were “retained to act in this matter” on 10 May 1995. Between that date and 12 February 1996 the firm’s professional fees comprised $42,408.00 to which were added $777.47 in outlays (Exhibit 10). The statement concluded that the professional fees “are calculated on a time cost basis and encompass all work carried out on behalf of Doolan Properties Pty Ltd in preparing the compensation claim”. There was no other information in that statement about the way in which the total amounts were reached. Annexed to a subsequent statement signed by Mr McBride (Exhibit 21) was “a detailed breakdown” of the firm’s costs “in respect of this matter”.
Although Exhibit 21 appears to be an itemised account of the work undertaken by Clarke and Kann for the claimant between 10 May 1995 and 12 February 1996, and may be accurately described, to use the words of Mr McBride, as “a detailed breakdown of Clarke and Kann’s professional attendances in this matter”, it does not seem to be confined to items directly related to the preparation and lodgment of the claim for compensation. I have not been able to determine from the list whether all or only some of the various phone calls, conferences and research items relate only to the making of the claim for compensation. There are some items which raise doubts. For example, at least 50 items are identified as “Several Actions” and nominate Doolan, Surveyor, Architect, ETS Group, Andy Steele, Ove Arup, Rhonan O’Brien and others in relation to those actions. It is not clear whether “Actions” refers to work undertaken or indicates that the work related to several actions, including the preparation and lodgment of the claim for compensation. Furthermore, not all the persons listed as being involved in the “Several Actions” may have been connected with the claim for compensation. I do not understand Rhonan O’Brien, for example, to have been involved in the preparation of the claim for compensation. Other items (including “Perusal/Analysis Rezoning Approval”, “Perusal Analysis Rezoning and 3B”, “Court App Rezoning”, “Court App 3B”, “Other - new subfile”, “Court App - searches”, “Court App - Brief”, “Court App - Building Line”, “Court Application - Plan”, and “Court Application - Conditions”) seem not to be related to the preparation and lodgment of the claim for compensation. In mentioning items which raise doubts about whether the total amount is properly claimed, I am not suggesting that the solicitors did not do the work or that it was not work properly undertaken on behalf of the claimant. I am only querying whether the work so itemised is too remote from the claim for compensation. Even if it was clear which items were compensible and which were not, the absence of individual costings makes it impossible to calculate what amount can be ascribed to the preparation of the claim.
Two decisions of the Land Court concerning contested legal bills in compensation cases provide guidance about the options for determining the amount of legal costs for which compensation should be paid in this case. In Guiseppe Nominees Pty Ltd v Brisbane City Council (A92-66, decision dated 16 July 1993, particularly at pages 31-32), there was a claim for $7,610.82 for legal fees involved in the preparation of the claim. Included in the total cost were fees for discussions with a second valuer (who was not called to give evidence), attendances on the mortgagee (which wanted to know the valuation figures) and attendances on other parties (including the owner of adjoining land, and an engineer). The claim was resisted by the respondent council mainly on the basis that it was not necessary to engage a second valuer, nor was it necessary to confer with the mortgagee or the neighbour. The Court concluded that, given the monetary value of the claim for compensation (approximately $3.5 million), the claimants’ solicitors had acted reasonably, particularly in discussing the compilation of the claim with a second valuer. The Court allowed in full the claim for the solicitor’s fee.
Evidence was given by the solicitor with carriage of the matter as to how the fees were determined. As well as the Memorandum of Fees, the Court had evidence of the firm’s hourly charge-out rates and the number of hours which were involved in handling the matter by various officers of the firm.
In the Thirty-Fourth Philgram case, the Land Court dealt with a claim for $5,657.00 in legal fees. The original claim for compensation was lodged by solicitors who were no longer representing the claimant at the hearing. It was apparent that the legal costs claimed in an account for $4,737.30 included costs arising before and after the preparation of the claim for compensation. A partner in the firm representing the claimant at the hearing studied the itemised account and concluded that at least 75 per cent. of the solicitor’s costs were incurred prior to the claim for compensation, with the remaining 25 per cent. relating to services performed after the claim had been filed with the Court. As the Court observed, the dates when the costs were incurred were not the only relevant factor. Compensation is payable only in respect of costs which were incurred between the date of receipt of the notice of intention to resume and the date of lodgment of the claim and which were reasonably and necessarily incurred in preparing and lodging the claim ((1992-1993) 14 QLCR 13 at 50-1). The Court concluded that, apart from items in the account which related to work performed outside the relevant period, there were many items which were not connected with the preparation of the claim. The Court then used a “broad-brush approach” to make an award equal to 50 per cent. of the account (at 52, citing Shann v The Commissioner of Water Resources (1987) 11 QLCR 194 at 228). The Court also made a full award in respect of counsel’s fees given the complexity of the claim which, as originally formulated, was for $2.4 million.
In each of the cases just cited, a substantial total amount of compensation was claimed and there was detailed evidence concerning the items of legal costs. The total amount of legal costs claimed, let alone awarded, in each case was substantially lower than the amount sought in this matter.
The evidence in this case does not provide a sufficient basis for making a determination about the amount which should be paid in compensation for legal expenses incurred by the claimant in preparing the claim for compensation. I am satisfied that the claimant is entitled to some compensation. Whether it is all or only some of the amount sought remains to be demonstrated. Although the amount sought is much larger than the amounts usually claimed and awarded, it may be justified in this case.
There are at least three ways in which the matter can be handled so that a determination can be made. The parties could consider these reasons for decision and:(a)the matter could be relisted for hearing on this issue, and the solicitor with carriage of the matter for the claimant could give oral evidence to the Court about the items which are compensible and the costs incurred in respect of each item; or
(b)the solicitor with carriage of the matter for the claimant could swear an affidavit about the items which are compensible and the costs incurred in respect of each item, and be available for questioning on the affidavit if required by the Council or the Court; or
(c)the parties could negotiate about the matter and provide the Court with evidence of their agreement about the sum payable.
I will hear submissions from the parties about which course of action they consider to be most appropriate.
Payment of disturbance costs
The claimant has informed the Court of the payment or deferred payment of various costs said to be disturbance costs:
(a) Victor Feros $ 3,167.50 paid July 1996
(b) ETS Group $13,400.00 paid January 1996
(c) Andy Steele & Associates $ 7,140.00 $2,136.00 paid in June 1996
(d) Taylor Byrne $ 9,100.00 payment deferred pending outcome of proceedings
(e) Cushway Blackford $ 3,000.00 payment deferred pending
& Associates outcome of proceedings
(f) Ove Arup & Partners $11,520.00 paid January 1996
(g) Tim Trotter $ 2,800.00 paid September 1995
(h) Clarke and Kann $43,185.47 payment deferred pending
outcome of proceedings.
I note that each of the deferred payments was deferred by agreement.
Interest on the costs of obtaining professional advice in the preparation of the claim is payable only from the date of actual payment of those fees by the dispossessed owner (Varitimos v Queensland Electricity Commission (1990-91) 13 QLCR 1; Council of the City of Townsville v MVO Investments Pty Ltd (1992-93) 14 QLCR 191).
The amounts payable (other than the amount for legal fees owed to Clarke and Kann) and the interest payable on the amounts already paid are as follows:(a)$2,500.00 and interest on that sum at the rate of 7.75 per cent. per annum from 18 October 1995 until the date upon which the final payment of compensation is made; and $667.50 and interest on that sum at the rate of 7.0 per cent. per annum from July 1996 until the date upon which the final payment of compensation is made;
(b)$6,700.00 and interest on that sum at the rate of 7.0 per cent. per annum from January 1996 until the date upon which the final payment of compensation is made;
(c)$7,140.00 and interest on the sum of $2,136.00 at the rate of 7.0 per cent. per annum from June 1996 until the date upon which the final payment of compensation is made;
(d) $4,000.00;
(e) $3,000.00;
(f)$11,520.00 and interest on that sum at the rate of 7.0 per cent. per annum from January 1996 until the date upon which the final payment of compensation is made; and
(g)$2,800.00 and interest on that sum at the rate of 7.75 per cent. per annum from September 1995 until the date upon which the final payment of compensation is made.
Costs
Section 27 (1) and (2) of the Acquisition of Land Act 1967 states:
“27.(1) Subject to this section, the costs of and incidental to the hearing and determination by the Land Court of a claim for compensation under this Act shall be in the discretion of that court.
(2) If the amount of compensation as determined is the amount finally claimed by the claimant in the proceedings or is nearer to that amount than to the amount of the valuation finally put in evidence by the constructing authority, costs (if any) shall be awarded to the claimant, otherwise costs (if any) shall be awarded to the constructing authority.”
The Council submitted that this is an appropriate case for the Court to award costs and that costs should be awarded to the Council.
The claim for compensation which was referred to the Land Court was for a total amount of $1,790,026.80, comprising $1,556,000.00 for land and injurious affection and $234,026.80 for disturbance (being reasonable legal and valuation costs). At the hearing, the claimant amended its claim and sought $1,171,472.97, comprising $1,077,700.00 in compensation for land and injurious affection together with $93,772.97 for disturbance and interest. The Council submitted that the value of the retained land was enhanced by the road works on adjoining land including the resumed land and that no compensation was payable.
It is clear from the decision of the Court of Appeal in Commissioner of Railways v Buckler ([1996] 1 QdR 18, (1994-1995) 15 QLCR 262) that, where the constructing authority contends that the value of the remaining land is enhanced following the resumption of land, “the amount of the valuation” finally put in evidence by the constructing authority is nil.
In this case, the mid-point between the amount finally claimed and nil was $585,736.48. The amount of compensation determined for the land taken, injurious affection and severance was $142,000.00. Even if the claimant had been awarded all of the amount which it claimed for disturbance, the total amount of compensation determined would have been nearer to the amount of the valuation finally put in evidence by the constructing authority. Consequently, if an award of costs is to be made, the award can only be to the constructing authority.
The arguments which the parties made for and against an award of costs can be summarised briefly. For the Council it was submitted that the amount of compensation claimed was exorbitant, being about five times the amount awarded. The Council was forced unnecessarily into litigation, and succeeded on most issues. Where the Council failed, the issue was relatively minor.
In reply it was submitted that there should be no order as to costs. According to the claimant’s submission, it was arguable that the Council’s case (that no compensation was payable) had failed entirely and that the claimant’s case had succeeded, albeit not to the full extent of the amount claimed. Because the litigation was precipitated by the Council’s decision to resume the property and the Council contended that no compensation was payable, the claimant had to have the Court rule on the matter. The claimant should be allowed access to the Court to present its case without being deterred by the prospect of being ordered to pay the Council’s costs. The matter was one of some complexity. The approach taken by the claimant, through its professional witnesses, was both conventional and responsible. There were findings in favour of and against each party in relation to the different issues in the matter.
In a recent review of the authorities on the award of costs, the Land Appeal Court stated:Where the Land Court is considering whether it should award costs to a constructing authority, it could be wrong to have regard merely to the amounts of the claim and of the award and of the value put in evidence by the authority. Usually it would be more relevant to enquire whether the conduct of the claimant (such as, for example, making an exorbitant claim) has been such as to force the authority, unreasonably and unnecessarily, into litigation ... or whether the claimant has pursued a vexatious, dishonest or grossly exaggerated claim or presented his case in such a way as to impose unnecessary burdens on the constructing authority or the Court” (Yalgan Investments Pty Ltd v Council of the Shire of Albert, A94-94, decision dated 11 December 1997, not yet reported).
In my view, the claimant’s conduct fell into none of those categories. The Council is not entitled to an award of all of its costs just because the claimant succeeded only to a limited extent.
Cases such as this illustrate what Courts have long recognised, that compulsory acquisitions differ from ordinary claims in the significant respect that a claimant, unlike the ordinary plaintiff, has no choice whether to make a claim or not. The mere acquisition by compulsory process gave the claimant a claim to compensation which the claimant could hardly be expected to renounce.
Given the complexity of the case and the difference between the amount claimed and the amount awarded, it is appropriate to consider whether to make a partial award of costs. The Land Appeal Court has considered the circumstances in which partial awards might be made in three recent decisions, J and L Barns v Director General, Department of Transport, A93-55, A93-56, decision dated 2 September 1997, not yet reported. Kabale Holdings Pty Ltd v Director General, Department of Transport, A94-34, decision dated 15 October 1997, not yet reported, and Yalgan Investments Pty Ltd v Council of the Shire of Albert, supra. The two most recent decisions provide guidance in the present case.
In the Kabale Holdings case, the Land Appeal Court dismissed an appeal against an order of the then President of the Land Court that the claimant pay 80 per cent. of the costs of the respondent constructing authority of and incidental to the hearing and determination of the claim. The claim as finally formulated was for $10,193,367.44, comprising $2,615,250.00 for the land, injurious affection and disturbance, and $7,578,117.44 for various other disturbance items. The President had determined compensation in the sum of $1,539,878.00 (comprising $1,465,000.00 for land, severance and injurious affection, and $74,878.00 for those disturbance being the costs of preparing the compensation claim) together with interest. The amount of the valuation finally put in evidence by the constructing authority was $1,185,000.00, excluding any allowance for disturbance. Clearly the amount of compensation determined by the President was nearer to that finally put in evidence by the constructing authority than the amount finally sought by the claimant. In making his decision on costs, the President had noted that there was little difference between the parties’ valuers on the question of the value of the land taken, including severance. The bulk of the claim, including injurious affection, turned on principles which the President held were applicable to an assessment of compensation for disturbance and injurious affection under s 20 of the Acquisition of Land Act 1967. The claimant had elected to argue issues which the constructing authority said were not supported by law and on which the claimant was unsuccessful. The President concluded that the respondent should receive costs for taking a firm stand on issues about which it was successful. He stated that, had the case been confined to the matters of the value of the land taken and severance, it was doubtful if the respondent would have obtained an order for costs.
The claimant appealed against the order for costs and sought either no order for costs or an order for “some amount considerably less than 80 per cent.” The constructing authority had sought all its costs. The Land Appeal Court reviewed the authorities on the partial award of costs. They include statements that it may be reasonable for a litigant who was only partially successful to bear the expense (and even bear the other party’s costs) of litigating that portion on which it failed, but that justice may not be served if parties are dissuaded by the risk of costs from canvassing all material issues. Furthermore, the discretion to apportion costs is exercised only in exceptional circumstances, such as where a considerable part of a trial is taken up in determining issues upon which a party fails. The Land Appeal Court dismissed the appeal against the President’s order.
In the Yalgan Investments case the Land Appeal Court considered appeals against a decision by the Land Court not to award costs in favour of the claimant, and against the Land Court’s order that each party bear its own costs. The amount of compensation as determined by the Member was nearer to the amount finally claimed by the claimant than the amount finally put in evidence by the respondent.
The Land Appeal Court summarised previous decisions on the scope of the Land Court’s discretionary power to award costs. It is clear from the authorities that, subject to s 27 of the Acquisition of Land Act 1967, the discretionary power of the Land Court is full or complete. As a general rule, a party who is wholly successful in litigation can expect an order for costs in that party’s favour. In cases like the present, however, the way in which the discretionary power should be exercised is less clear. Section 27(2) should not be regarded as a legislative suggestion that, where the claim is substantially more than the amount awarded, and the amount put in evidence by the constructing authority is not substantially less than the amount awarded, the Court should not merely refrain from awarding any costs to the claimant but should award costs to the constructing authority. The Land Appeal Court reiterated that, where the Land Court is considering whether it should award costs to a constructing authority, it could be wrong to have regard merely to the amounts of the claim and of the award and of the value put in evidence by the authority. Usually, it would be more relevant to enquire into the conduct of the claimant in pursuing the claim.
In the present case, the claimant was only partially successful in the result. The amount awarded exceeded the nil sum for which the Council contended and exceeded, to a greater extent, the amount by which the Council contended the value of the remaining land was enhanced. Although there was a substantial difference between the amount claimed and the amount awarded, the claimant’s conduct was not unreasonable in the sense described earlier.
In the Yalgan Investments case, the Land Appeal Court reiterated the principles set out in the Kabale Holdings case. The Court again noted judicial recognition that the discretion to apportion costs is to be exercised in the most exceptional circumstances. Where a considerable part of a trial is taken up in determining issues upon which a party fails, it is a proper exercise of the discretion to reduce the costs allowed to that party. Such a result is a qualification of the presumption in conventional litigation that a successful party is entitled to all its costs.
The situation here is different. The claimant having achieved a determination in its favour is statute-barred from an award of costs in its favour. So the question in this case is not whether an award of costs in favour of the successful claimant should be reduced. The facts in the present case are also quite different from those in Kabale Holdings.
An analysis of the reasons for decision delivered on 24 December 1997 shows that each party succeeded, in part or in whole, in relation to some of the matters in dispute and failed in relation to others. For example, I accepted the claimant’s submission concerning the scale and type of development which constituted the highest and best use of the remaining land, but did not accept fully its submission concerning the potential of the subject land before resumption. I did not accept the claimant’s submission on the Point Gourde principle in reverse. I accepted the Council’s submission that the preferrable method of valuing the land in the before and after situations was on a rate per square metre, but the rates which I adopted were in the range suggested by the claimant rather than the Council. I accepted the Council’s submissions concerning the extent and cost of roadworks, but did not accept its submission that those roadworks enhanced the value of the remaining land. I accepted some of the sales evidence advanced for each party and rejected other sales evidence for each party.
The conduct of the claimant in bringing and arguing its claim does not compel a partial award of costs to the Council. There will be no order as to costs.
Arithmetical error
The claimant’s submission drew attention to an arithmetical error in the decision dated 24 December 1997. The difference between the assessed before value ($795,670.00) and the after value as appearing on page 70 of the judgment ($645,000.00) is $150,670.00, not $142,000.00. The after value, however, was incorrectly stated as $645,000.00 instead of $654,550.00.
To avoid any confusion arising from numerical errors in the previous judgment, the amount of compensation was calculated by reference to the following components:
subject land 6,106m² x $145.00 = $885,370.00
cost of roadworks $89,700.00
remaining land 5,035 m² x $130.00 = $654,550.00.
Compensation is $885,370.00 - ($89,700.00 + $654,550.00) = $141,120.00
Adopt $142,000.00.
Order
For the reasons given in the judgment delivered on 24 December 1997 and in these reasons for decision I make the following orders:
The respondent Council shall pay the claimant the sum of one hundred and forty-two thousand dollars ($142,000.00) in relation to the value of the land taken, injurious affection and severance.
The respondent Council shall pay the claimant the sum of thirty eight thousand, three hundred and twenty seven dollars and fifty cents ($38,327.50) for disturbance costs comprising:
Victor Feros $ 3,167.50
ETS Group $ 6,700.00
Andy Steele & Associates $ 7,140.00
Taylor Byrne $ 4,000.00
Cushway Blackford & Associates $ 3,000.00
Ove Arup & Partners $11,520.00
Tim Trotter $ 2,800.00.
The respondent Council shall pay to the claimant interest on the amounts of compensation at the following rates:
(a)interest on the sum of $142,000.00 at the rate of 7.75 per cent. per annum from 20 August 1995 until the date on which the final payment of compensation is made;
(b)interest on the sum of $2,800.00 at the rate of 7.75 per cent. per annum from September 1995 until the date upon which the final payment of compensation is made;
(c)interest on the sum of $2,500.00 at the rate of 7.75 per cent. per annum from 18 October 1995 until the date upon which the final payment of compensation is made;
(d)interest on the sum of $18,220.00 at the rate of 7.0 per cent. per annum from January 1996 until the date upon which the final payment of compensation is made;
(e)interest on the sum of $2,136.00 at the rate of 7.0 per cent. per annum from June 1996 until the date upon which the final payment of compensation is made; and
(f)interest on the sum of $667.50 at the rate of 7.0 per cent. per annum from July 1996 until the date upon which the final payment of compensation is made.
There is no order for costs.
No order is made at this stage in relation to the cost to the claimant of obtaining legal advice in relation to the lodgment of the claim for compensation. The claimant shall provide the Court with further evidence of such costs or a statement of a sum agreed to by the parties. I will hear submissions from the parties about which course of action they consider to be most appropriate.
GJ NEATE
MEMBER
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