Erola Pty Ltd v Council of the Shire of Redland - [1998] QLC 64

[1998] QLC 64

LAND COURT

BRISBANE

2 June 1998

Re: Claim for compensation - Acquisition of Land Act 1967

(A97-46)

Erola Pty Ltd
v.
Council of the Shire of Redland

JUDGMENT

Introduction

Russell Island is situated in Moreton Bay, between the mainland and the southern end of North Stradbroke Island. Wahine Drive runs near the eastern edge of part of the island. Parcels of land lie between Wahine Drive and Canaipa Passage. One parcel is the subject land in these proceedings, Lot 14 on RP130452 in the County of Stanley, Parish of Russell.
In September 1985 Erola Pty Ltd (the “claimant”) purchased the subject land for $25,500.00. Mr James Nixon Thomson is the managing director of the claimant. His wife, Patricia Evelyn Thomson, is the only other director. The claimant is the trustee of the Thomson family trust, and Mr and Mrs Thomson are the beneficiaries. Mr Thomson wanted to live on the subject land with his wife in his retirement. He planned to build a house there, but his hopes were dashed. On 8 September 1995 the Council of the Shire of Redland (the “constructing authority”), acting under the Acquisition of Land Act 1967, took the subject land for Boat Ramp purposes. The land now vests in the constructing authority for an estate in fee simple.
The claimant is entitled to be compensated for the taking of the subject land. In January 1997 it made a claim for compensation to the constructing authority, but the parties could not agree on the amount to be paid. The claim was referred to the Land Court pursuant to section 24 of the Acquisition of Land Act. The total amount claimed was $78,000.00, plus interest. The items for which compensation was claimed and the amounts sought were:

Land  $55,000.00
           Injurious effect  $10,000.00
           Severance  $ 5,000.00
           Disturbance (being legal,
           engineering and valuation fees) $ 8,000.00.

At the hearing, the claimant, with the leave of the Court, amended the amount claimed to $63,499.50, comprising:

Land $55,000.00
Disturbance $ 8,499.50

plus interest.
At the end of the hearing, the claim was further amended, with the leave of the Court, to a claim for $51,750.00 plus interest. The amount was calculated as follows:

Land $47,130.00
being the value of land $55,000.00

less:     cost of retaining wall                $4,800.00
  cost of stripping surface           $   750.00
  cost of fill  $2,320.00

$7,870.00
           Disturbance costs agreed at   $ 4,620.00
           The constructing authority submitted, however, that the amount of compensation payable was $6,620.00, together with interest, comprising:
           Land  $2,000.00
           Disturbance  $4,620.00.
The issues
           The first issue in this case is the highest and best use of the subject land at the date of resumption. The claimant submits that the highest and best use was for residential purposes with the construction of a dwelling house. The constructing authority disagrees, contending that the land could not be used in that way. To resolve that dispute, it is necessary to consider the physical features of the land and the constraints on its development which applied at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Erola Pty Ltd v Council of the Shire of Redland

Details

AGLC: Erola Pty Ltd v Council of the Shire of Redland [1998] QLC 64
Case: [1998] QLC 64
Decision Date: 2 June 1998

CaseChat Overview and Summary

Erola Pty Ltd (the "claimant") brought an action against the Council of the Shire of Redland (the "constructing authority") for compensation for the acquisition of the claimant's land pursuant to the Acquisition of Land Act 1967. The claimant purchased the subject land for $25,500.00 in September 1985 with the intention of building a house there. However, the constructing authority acquired the land on 8 September 1995 for boat ramp purposes under the Acquisition of Land Act. The claimant sought compensation for the taking of the subject land, including the value of the land, injurious affection, severance, and disturbance costs. The primary issues in the case were the highest and best use of the subject land at the date of resumption and the value of the land taken. The court found that the highest and best use of the subject land was not for residential purposes, as the necessary fill to build a house would not have constituted filling "of a minor nature." The court determined the value of the subject land at the date of resumption to be $7,500.00. The court also found that the parties had agreed on disturbance costs of $4,620.00. Therefore, the total compensation payable by the constructing authority to the claimant is $12,120.00, with interest on certain components of the compensation amount.

Orders