Fitzpatrick v The Crown

[1993] QLC 10

[1993] QLC 10

 

 

LAND COURT,

BRISBANE.

7th May, 1993.

Re:Claim for Compensation -

Resumption for National Park Purposes.
  Land Act 1962.
Acquisition of Land Act 1967
  (A92-44)

Peter Francis Fitzpatrick and Others
  v.
  The Crown

J U D G M E N T

By Proclamation published in the Government Gazette of 1st February, 1992 (amended by Proclamation published 6th November, 1992) the Governor in Council acting under the provisions contained in s.306 of the Land Act 1962 resumed on and from the date of the first Proclamation) 1) an area of about 366 square kilometres from Riversleigh Pastoral Development Holding (Riversleigh) and 2) an area of about 458 square kilometres being the whole of the land contained in Holt Pastoral Holding (Holt).  The resumed lands which vested in the Crown on resumption have been set aside for National Park purposes.  The land resumed from Riversleigh adjoins Holt on the eastern boundary.  The resumed land is separated from Riversleigh by a boundary running from south to north by the O'Shanassy River a small distance of unfenced boundary then by a fence to an area of unfenced land which forms a natural barrier to stock and further by a fence to the northern boundary.  The holdings are situated about 267 kms north-west of Mt Isa.  The Mt Isa-Burketown Road passes through the eastern section of the balance land of Riversleigh while the Mt Isa-Lawn Hill Road traverses the balance area from the south-east where it leaves the former road to the north-west and runs generally in parallel with the boundary of the National Park.  The Gregory River which has its source to the west flows through the centre of the holdings.  The O'Shanassy River enters from the south and joins the Gregory River about midway through Riversleigh.
           The claimants acquired the holdings in 1986.  The holdings are used for grazing beef cattle.  Commercial stock are generally sold as store steers.  The claimants have remained in possession of the resumed land since resumption.  By a claim dated 22 July, 1992 compensation was sought in the sum of $607,965 made up of -

Land and improvements -   341,445
           Reinstatement of water -   45,720
           Fencing   80,500
           Firebreaks  100,000
           Destocking costs   25,200
           Professional fees   15,100

Negotiations between the claimants and the respondent produced an agreement

with respect to -

Land and improvements -   330,000
           Reinstatement of water -   10,000
           Fencing (Part)   9,500
           Professional fees   15,100

The agreement under the heading of fencing provided for fencing the unfenced section of the eastern boundary of the resumed land (apart from the natural boundary in the northern section).  Leave of the Court was sought and obtained to amend the claim in respect of items remaining in dispute.  These comprise -

Fencing (Part)  81,500
           Firebreaks  36,000
           Destocking   25,200

Briefly stated the claim for fencing covers the cost of providing a fenced paddock in Riversleigh in the north-eastern section of the area south of the Gregory River.  The proposed paddock has natural and artificial water, is near the Mt Isa-Burketown Road and would hold in an average season around 600 breeder cattle.  The claim for firebreaks is an estimate of the cost to provide a two-blade width firebreak on the boundary with the National Park.  The claim for destocking is an estimate of the cost to destock the resumed area of scrubber cattle - a sum over and above normal mustering costs.  The quantum of these three claims is agreed.  The question is whether they are compensable. 
           For the claimants evidence was given by Mr Graham Thomas Stabler a veterinary surgeon and part owner of the holdings and by Mr Christopher John Evans registered valuer.  For the respondent evidence was given by Mr W B Bowen registered valuer in the employ of the Department of Lands and by Mr T D Ellis Senior Acquisitions Officer within the Conservation Strategy Branch of the Department of the Environment and Heritage.
           In the evidence of Mr Bowen it is said that these holdings have been drought affected from 1988 to 1991.  The claimants acquired the holdings in 1986 and since then have been busy (among other things) in obtaining a TB free herd.  A provisional clearance was given by the Department of Primary Industries in 1989. The area was confirmed as clear of TB two years later.  All adjoining properties have such a clearance save for one adjoining Riversleigh in the north-eastern section.  When an area is found to be clear of TB it is desirable that clean cattle be kept free of possible contamination from both internal and external sources.  This is best achieved by containing cattle within fenced or natural boundaries and by testing cattle which are intended to be mixed with other cattle.  In this part of the State full boundary fencing of holdings is not common.  These holdings are no exception.  The resumed land which has been used as one paddock is unfenced except for the eastern boundary.  The area between the Gregory River and the O'Shanassy River is said to be so rough and unattractive to cattle that it is not grazed and that cattle are unlikely to cross the Gregory River from the north to this area.  The resumed paddock effectively comprised the area north of the Gregory River.  An artificial water point (the only one serving the area) is sited near the fenced boundary in the north-eastern section of the resumed area.  It is at this point that stock are trap mustered annually between March and November depending upon the season.  Mr Stabler estimates that 65 - 70% of the capacity of the area is picked up in the annual muster.  At the conclusion of the muster in late 1992, 825 cows and 36 bulls were returned to the paddock. On the estimate given by Mr Stabler a clean muster could produce around 1300 head.  In his opinion, the area with its natural boundaries is as secure as a fenced paddock.  Some 800 head of cattle were released into the paddock in 1990.  He said that over the years six head of Riversleigh cattle have been returned from Norfolk Holding which adjoins Holt on the west and that since 1990 no cattle have been returned nor have cattle from that holding been found on Riversleigh.  On the balance of Riversleigh there are some 20 artificial watering points including the homestead supply and a series of paddocks (fenced and natural boundaries) save for a large area south of the Gregory River.  This latter area is unstocked and adjoins Thorntonia and Seymour Junction Holdings.  The boundaries are unfenced and according to Mr Stabler it would not be prudent to fence them due to the nature of the terrain.  He is of the opinion that it would not be prudent to place cattle from the resumed land in this area without fencing for reasons 1) of possible contamination from stock moving from the south (although clean at present) and 2) the probability that the stock would try to find their way back to the area whence they came.  Hence the claim for fencing a paddock to hold at least 600 of the cattle said to be grazing the resumed land.  He said that works which have been carried out by the lessees since they acquired the holdings have included fencing and that where boundary fencing was involved firebreaks were provided.  He believes that when the National Park is destocked, grasses will build up and that there will exist a real possibility of fire.  The evidence of Mr Evans covered an estimate of the costs of the works claimed and he supported them in principle.  In his opinion, which has practical experience in this area of the State behind it, the land resumed would be regarded as a secure area with minimal stock movement outside it.  Mr Bowen was of the opinion that the claim for fencing was too remote - it not being a natural and reasonable consequence of the resumption.  He said that on building fence lines it was the practice in the district to clear a line which would accommodate the fence as well as providing an access maintenance track and firebreak.  He would regard the provision of a firebreak, separate from a fence line as an over-capitalisation of development works.  He would have no objection to payment for obtaining a clean muster of the resumed land if it was absolutely necessary that is, as I interpret his evidence, were the resuming authority to require a muster immediately following the issue of the proclamation.  Mr Ellis said that there was no intention of the Department to require the claimants to remove their cattle from the resumed land in the short term.  He said that an offer of a stock grazing permit which would allow a muster this year and two further annual musters would be appropriate and acceptable to the Department.  Having regard to the seasons of the past and the evidence of Mr Stabler on the lessees' desires to build up stock numbers now that the herd is TB free and seasons have changed it would be foolish in my opinion for the lessees not to take advantage of the opportunity to continue to graze the paddock to the end of the mustering season in 1995 (say 31st December, 1995).  The evidence of Mr Ellis which I accept as an offer is one which is proper to be taken into account in reducing compensation if that is the effect of the offer - see Thorpe v. Brisbane City Council (1965) 32 CLLR 1 (Full Court).  Further in the Gladstone-Moura railway cases (1967) 34 CLLR 140 at p 174 the Court said -  

"The owner is not to be expected to mitigate his loss by one cent, but, as a qualification of this, he must be reasonable.  He cannot use the resumption to inaugurate schemes which must put him in a substantially better position than before.  If there is any doubt it must be resolved in his favour but that is as far as the Court can go."

The sense in which I have placed weight on the offer comes about through the claim made for the fencing of a paddock to hold the stock.  If it is assumed that the respondent on publication of the proclamation required vacant possession of the resumed land (unstocked) on short notice the claimants would have the alternative of selling the cattle or placing them on the balance of the holding - the apparent area being the area to the south of the Gregory River.  This area is intended to be used but through financial constraints had not, at resumption, been divided by fencing into paddocks as has been done with the area north of the River.  In testing the reasonableness of the claim by other means the question of possible loss on a forced sale of stock was raised by the Court.  However the issue became confused between loss on a forced sale and loss through loss of potential profits.  The latter of course is not compensable, see Pastoral Finance Company v. The Minister (1914) AC 1083; whilst the former may be valid in circumstances explained in Shann v. The Commissioner of Water Resources (1986-87) 11 QLCR 194 at pp 203/205. At p 204 the Court said -

"In my understanding of this head of claim, it is valid only where, because of the taking of possession by the constructing authority, the claimant is forced to put stock on the market in whole of in pens, not recognised as marketable numbers.  That is, that he loses by reason of not being able to sell under normal marketing conditions."

These circumstances are not present in the subject case.   Indeed Mr Bowen considered that a substantial number of one brand cattle on the market at the one time was an advantage.  The stock have remained on the property (free of rent balanced with no claim for interest) and may remain at the option of the lessees until the end of the mustering season in 1995.  Thus the claimants are afforded the opportunity to sell, if they wish to sell, under marketing conditions of their choice and/or to progressively adjust the management of Riversleigh (by the provision of further paddocks which it would appear on the evidence of Mr Stabler would be done irrespective of the resumption) so as to retain the foundation of the herd for future use.  In the circumstances I find that the claim is not compensable.  The claim for destocking is irregular in that it is a cost additional to a normal muster and is designed to recover scrubber cattle.  Reference is made to Loeskow v. The Crown (1990-91) 13 QLCR 273 in which mustering costs were allowed by the learned Member, Mr Wenck. However I cannot read his judgment as supporting the claim in so far as it relates to the mustering of scrubber cattle. The finding of the learned Member supports a claim for normal mustering costs whether done following the resumption or subsequently on the expiration of a grazing permit, if any, given over the resumed land. This is evident at page 281 when he says -

"However, as I will be finding that no interest will be payable on compensation, due to the continued rent free use of the land, I will also find that the mustering which would have been necessary had vacant possession been sought within a reasonable time of the date of the resumption, is a compensable disturbance item."

In dealing with the claim for cost of mustering scrubber cattle the learned Member at pp 280-281 said -

"It seems on the evidence, that while small numbers may be retrieved under normal management practices, the nature of the country would ensure a permanent head of scrubbers unless the owner decided to take the specific action of clean mustering at his own cost.  I do not see that as a cost which is one emanating from the resumption - brought forward no doubt, but also with an earlier realisation of the asset.

......

For the reasons given, any costs to the owner in mustering scrubber cattle are not considered compensable, but a normal outlay if the asset is to be realised."

It appears in the evidence of Mr Evans (on my workings) that a normal muster would cost about $5,000 - $6,000 - helicopter 10-15 hours and 5 stockmen for six days.  By following the reasoning of the Court in Loeskow I find that the claim has support to the extent stated and I will allow compensation in sum of $6,000. 
           The management of the subject holding since being taken over by the claimants has included the provision of firebreaks on boundary fencing.  Such a practice is found on downs country in the district (eg Gregory Downs) but not generally.  The work has a two fold benefit in providing for maintenance and in protecting the land.  The relevant boundary will adjoin an area of about 824 square kilometres of National Park.  There is no dispute that grasses will build up following the destocking of the area.  On the evidence of Mr Bowen the area will be managed with fire control in mind but with such a vast area to oversee (presently managed from Lawn Hill National Park) an adjoining owner could be excused for thinking that the risk of fire generated from natural sources is greater than were the land under cattle grazing.  In The Commissioner of Highways v. Tynan and Another 1982-84) 53 LGRA compensation was allowed under this heading following a resumption for road purposes which took away a belt of green timber running beside pasture.  Although there was no statistical evidence to support the claim Wells J held that the claim possessed some intrinsic common sense.  In this case it is the practice of these lessees to firebreak boundary fences as they are constructed.  With the more intensive grazing which is planned on the balance of Riversleigh and having regard to works of development done in protecting the area from both fire and straying stock it seems to me that the claim is not one of an eccentric manager.  There would also appear to be inherent in the exercise a benefit to both parties.  Accordingly I have decided to allow the sum claimed.

In the result compensation for the resumption is determined in the amount of Four hundred and six thousand, six hundred dollars ($406,600) being the sum of the following items of claim -

Land and improvements -   330,000
           Reinstatement of water -   10,000
           Fencing   9,500
           Firebreaks   36,000
           Destocking   6,000
           Professional fees   15,100

As the claimants have remained in possession and have continued to graze the resumed land interest is not payable on compensation. 

Member of the Land Court.