Edgarange Pty Ltd v Redland Shire Council
[2007] QLC 56
•7 August 2007
LAND COURT OF QUEENSLAND
CITATION: Edgarange Pty Ltd v Redland Shire Council [2007] QLC 0056 PARTIES: Edgarange Pty Ltd
(claimant/applicant)v. Redland Shire Council
(respondent)FILE NO.: A2006/0102, A2006/0103 DIVISION: Land Court of Queensland PROCEEDING: Application for costs. DELIVERED ON: 7 August 2007 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER Mr RS Jones ORDER: 1. The respondent is to pay the applicant's costs of and incidental to the determination of its claim for compensation save for and excepting its costs of the resumed hearing on 11 and 12 July 2007.
2. Such costs (if not agreed) are to be decided by the appropriate assessing officer of the Supreme Court, under the scale of costs provided by law for proceedings in the Supreme Court.
CATCHWORDS: Application for costs – s.27 Acquisition of Land Act 1967 – whether or not appropriate to make a partial award of costs. COUNSEL: Mr C Hughes SC for the applicant.
Mr S Ure for the respondent.SOLICITORS McCarthy Durie Ryan Neil solicitors, for the applicant.
King & Co solicitors, for the respondent.
Edgarange Pty Ltd (the applicant), seeks orders that the Redland Shire Council (the respondent) pay its costs of the proceedings concerning the determination of compensation for its land resumed by the respondent in 2004.
Background
By proclamation published in the Queensland Government Gazette on 8 October 2004 the respondent resumed some of the applicant's land at Capalaba. On 12 May 2006 an originating application was filed by the applicant seeking compensation in the amount of $9,141,000. On 21 November 2006, without objection by the respondent, the claimant amended its claim to $8,040,760.56 made up of $8,000,000 for land and severance and $40,760.56 under the heading of "disturbance".
The final position of the respondent concerning compensation involved a number of alternate scenarios.[1]. However, in my opinion it would be fair to say that the primary position of the respondent was that compensation should involve only a relatively small payment to the claimant. According to the respondent that would be so for two reasons. First, that in the circumstances of the case, the applicant was effectively denied the right to claim substantial compensation under the Acquisition of Land Act 1967 (ALA) because prior rights to claim compensation were activated and should have been pursued under the relevant local government legislation.[2] The second reason was that in any event; "the highest and best use of the resumed and severed land before the date of resumption was as Public Open Space/Special Protection Area, with the consequence that industrial subdivision would not have been permitted on that land."[3]
[1] See respondent's written submissions (RS) para 95.
[2] Ibid at para 95(a).
[3] Ibid at para 95(b).
In the substantive hearing[4] these scenarios were referred to as the "Prior Right to Compensation" case and the "Town Planning" Case. The first was largely a question of law whereas the second, to a large extent, was dependent upon the evidence of the various experts called by the parties. Also of relevance is the fact that the respondent argued that a third scenario was also possible, namely that the final design of the industrial subdivision layout proposed by the applicant would have to be materially changed at the expense of a number of industrial lots. This scenario, like the second scenario already referred to, was largely dependent upon the evidence of expert witnesses. An advance of $500,000 was paid by the respondent to the applicant on or about 1 November 2005.
[4] [2007] QLC 0012.
The Conduct of the Proceeding
For the reasons set out in the substantive decision the issue of the quantum of compensation was deferred pending my decision about the highest and best use of the severed and resumed land. ("the land")
The respondent failed in its primary arguments but had some success in respect of its other fallback position and, following the publication of my reasons concerning the highest and best use of the land, compensation was agreed between the parties in the amount of $5,992,098 made up of land and severance in the amount of $5,957,500 and $34,598 under the heading of "disturbance".
The Merits of the Application
The respondent correctly points out that it is only the applicant who is entitled to an order for costs under s.27 of the ALA and does not contend that the applicant is not entitled to any beneficial orders concerning costs. The respondent does however argue that any such orders should be limited. In paragraph 13 of its submissions on costs it is said on behalf of the respondent that:
"The Court would be satisfied that an appropriate exercise of the Court's discretion would be to order that the Respondent pay the Applicant's costs of the determination of compensation including the costs attributable to the hearing before the Court on the 21st November 2006 and the 29th November 2006 but not including the costs of the hearing before the Court on the 23rd, 24th, 27th and 28th November 2006."
It is argued on behalf of the respondent that the "majority" of the time occupied by the Court on 23, 24, 27 and 28 November 2006 was concerned with the issues determined largely in its favour. The fundamental issue the Court was concerned with on those dates was the highest and best use of the land and, in particular, the location of stormwater works and how many (if any) industrial lots might have been able to be developed on that land. The nature of the evidence dealt with on those dates is, I think, fairly set out in paragraph 7 of the respondent's submissions on costs which provide:
Date Event
21.1106 Opening.23.11.06Mr Challenor, Town Planner for the Claimant Examination in Chief, cross-examination and re-examination.
Mr Delaney, Environmental Scientist for the Applicant. Examination in Chief, cross-examination.
24.11.06Mr Delaney continuing cross-examination and re-examination.
Mr Ormerod, odour expert for the Claimant. Examination in Chief, cross-examination and re-examination.
27.11.06Dr Johnson, Hydraulic Engineer for the Claimant. Examination in Chief, cross-examination and re-examination.
Mr McNeilage, Environmental Scientist called on behalf of the Respondent. Examination in Chief, cross-examination and re-examination.
Mr Perkins, Town Planner called on behalf of the Respondent. Examination in Chief.
28.11.06Mr Perkins continuing Examination in Chief, cross-examination and re-examination.
29.11.06Submissions.
In the presence of senior counsel for the parties I also viewed the subject land and its environs on 22 November 2006.
The position of the experts called on behalf of the applicant was that the stormwater works and a significant number of industrial lots could have been situated on the land. As mentioned above, it was one of the respondent's primary arguments that for sound town planning and/or environmental reasons effectively none or very little of the land would have been available for industrial lot subdivision. To that end it called Messrs McNeilage and Perkins to give evidence on its behalf.
Following my reasons concerning the highest and best use question, the parties were also able to agree on a suitable subdivision layout in the before resumption case[5] which, as I understand it, resulted in a similar number of notional lots on the land although some were now smaller and/or of different shape to those originally proposed.
[5] See exhibit 55.
I accept that, in respect of the third of the respondent's scenarios identified in paragraph 4 above, the respondent did achieve a degree of success from the proceedings on 23, 24, 27 and 28 November 2006. However, when compared to what was the respondent's primary position, it would be fair to say that it was the applicant who was predominantly successful on the evidence.
Putting it perhaps at its crudest, the level of success of the applicant can be identified by reference to the dollars involved. The final position of the respondent in dollar terms was not, I think, articulated. However, it would not be unreasonable to expect that, based on the respondent's primary arguments, the best case for the applicant would not have been likely to exceed by much, if at all, the advance already paid.
In my opinion this was clearly a case where the applicant really had no other choice than to come to this court to achieve appropriate compensation. And, while the respondent is able to point to some success arising from the proceedings on the relevant dates, when its primary case is kept in mind, it was the applicant who was clearly the successful party.
The respondent directed my attention to the decision of the Land Appeal Court in Yalgan Investments Pty Ltd v Council of the Shire of Albert (1997) 17 QLCR 401 at 417 to 418 in support of its contention that in the circumstances of this case, a partial award of costs is appropriate. In Yalgan the Land Appeal Court at 417 endorsed the general principle that, in circumstances where the discretion provided for in s.27 of the ALA is exercisable only in favour of the claimant, then the claimant, absent "special circumstances", should obtain the costs of achieving fair compensation. In that case though the Land Appeal Court found that special circumstances did exist comprising primarily of the complexity of the case and the fact that the claimant was not successful either in gaining the amount claimed or in convincing the court to adopt its methodology for calculating compensation.
In my opinion no such special circumstances apply here. It is true that the applicant did not receive all that it claimed however, it did receive substantially more than that which the respondent was prepared to pay and the statutory "half way" point prescribed by s.27 of the ALA. Further, it could not be said that the claim was exorbitant in the sense that it was the unreasonable approach or position of the applicant that made litigation unavoidable. The valuation methodology adopted by the claimant was appropriate and, in my opinion, it could not be reasonably said that a considerable part of the proceedings which occurred on 23, 24, 27, and 28 November 2006 was taken up in determining issues upon which the applicant failed.
On balance, I do not consider that there are sufficient reasons for me to deny the applicant the benefit of the usual orders as to costs concerning the hearing of its claim for compensation from 21 November 2006 to 29 November 2006. It is however my opinion that such orders ought not include the proceedings on 11 and 12 July 2007. It seems tolerably clear to me that following the publication of my reasons concerning the highest and best use of the land both parties, no doubt ably assisted by their lawyers and other experts, acted sensibly and reasonably to resolve all of the issues (save for costs) still outstanding between them. The appearances on 11 and 12 July 2007 were also very brief and largely non adversarial in character.
For the above reasons my orders concerning costs are:
1. The respondent is to pay the applicant's costs of and incidental to the determination of its claim for compensation save for and excepting its costs of the resumed hearing on 11 and 12 July 2007.
2. Such costs (if not agreed) are to be decided by the appropriate assessing officer of the Supreme Court, under the scale of costs provided by law for proceedings in the Supreme Court.
R S JONES
MEMBER
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