Grummitt v State of Queensland
[2002] QLC 13
•28 February 2002
LAND COURT
BRISBANE
28 FEBRUARY 2002
Re: A2001/0445
Determination of Compensation –
Acquisition of Land Act 1967
Resumption for National Park Purposes –
Land Act 1994
William George Grummitt
v.
State of Queensland
J U D G M E N T
By Taking of Land Order as published in the Government Gazette dated 25 June 1999, amended by Taking of Land (Amendment) Order published in the Government Gazette dated 25 February 2000, land described as Lot 6 on SP123933, containing an area of 15.14 ha and being part of Grazing Homestead Perpetual Lease 4646 Gayndah District, was resumed by the State for National Park purposes, on and from 25 June 1999.
Compensation is to be determined as at the date of taking, 25 June 1999.
After having been served with an Order to Enter an Appearance, Mr Grummitt filed, on 25 September 2001, a claim for compensation under the provisions of the Acquisition of Land Act 1967 in the amount of $22,650, plus interest.
Details of the claim will be set out later.
The State's valuation was in the amount of $1,500. As will also be discussed later, the valuation finally put in evidence by the respondent was in the amount of $2,200.
The matter was heard in Bundaberg on 13 December 2001 and, with the consent of the parties a view of the land was taken by the Court, in the absence of the parties.
Background and Details of Resumption
The resumed land is located about 40 km by road south-west of Mundubbera within the local government of Mundubbera Shire. It is vacant land zoned "Rural".
The shape of the resumed land is irregular being near triangular. The western part is intersected by the surveyed and formed Auburn Falls Road. The resumed land provides a northerly extension to the existing Auburn River National Park which, prior to the resumption, contained an area of 389 ha. The Auburn River flows through the extreme northern end of the National Park "over a jumbled mass of pink granatic boulders. Over time, water erosion has sculptured and is continuing to shape the scenic rock pools and cataracts of this river." (See Auburn River National Park Visitor Information Brochure (part Exhibit 5)). Steep banks rise from the riverbed to a relatively narrow strip of land immediately adjacent to the original northern boundary of the National Park. On that narrow strip "a basic camping area is provided … Facilities include pit toilets, tables and barbecues. Water is not available." (Visitor Information Brochure). The camping area is accessed by the formed gravel Auburn Falls Road, referred to earlier, which is surveyed in an irregular route southerly for about 7 km from the bitumen sealed Hawkwood Road through the large Grazing Homestead Perpetual Lease parent property (of about 3,945 ha) held by Mr Grummitt. He also owns freehold land both to the east and west of the leasehold and the aggregation of grazing land comprises an area of about 7,000 ha. This property known as "Auburn Falls" lies to the south of Hawkwood Road and the majority of its southern boundary, with the exception of the relatively small section of National Park frontage, is formed by the Auburn River.
The original northern boundary of the National Park adjacent to the camping area was unfenced.
The resumed area has a frontage of about 920 metres to the original National Park boundary easterly of the termination of the surveyed road and about 265 metres to the west. The western boundary is then surveyed at a near right-angle to the original National Park boundary for a depth of about 167 metres where it intersects the angular surveyed road, then the boundary turns to the north-east for about 245 metres before again turning to the south-east for about 792 metres at which point it intersects the original park boundary, forming the apex of the triangular shape. At its widest point, in the vicinity of the surveyed road, the resumed area is about 300 metres wide with the width reducing sharply to the east.
The resumed land comprises moderate to gently sloping open to fairly heavily timbered granite soil forest country with rocky outcrops.
The land was used for cattle grazing as part of the lessee's beef production business. Within the parent leasehold land there had been an internal subdivisional fence which intersected the surveyed road at about the point where the resumed area now also intersects that road. The evidence was that many years ago, when the road access to the National Park had been first constructed, the grid and gate which now exist, had been installed, apparently by the Mundubbera Shire Council, at the point where the road intersected the internal subdivision fence.
The evidence was that the National Park "purposes" of the resumption scheme include extension of the existing camping and car-parking area. The boundary of the resumed area had not been fenced at the date of the hearing although the Court was informed that it was intended that a boundary fence be erected, with an associated firebreak.
Appearances and Witnesses
Mr Grummitt appeared on his own behalf and gave oral evidence in support of his claim.
Mr D Grealy, barrister with Crown Law, appeared on behalf of the State. Mr Donald Neil Meiers, a registered valuer employed by the Chief Executive, Department of Natural Resources and Mines, was responsible for the State's valuation and gave evidence accordingly.
The Claimant's Case
Mr Grummitt described the Auburn River Falls within the National Park as unique, with "no other tourist attraction around within 100 ks that's similar". He had owned the grazing property before the National Park had first been gazetted many years ago. It was his opinion that, with the relatively good access now constructed to the National Park, real potential existed for some form of tourist venture to be developed on his immediately adjoining land. He had not given specific consideration to the type of tourist development which might have represented the highest and best use of this adjoining land, of which the resumed land formed part.
He was very critical of the apparent lack of consideration which had been given to the physical nature of the local topography, including the rock outcrops, when the survey lines for the resumed land had been drawn. He described the survey as having "all the hallmarks of somebody, a dreamer in an air-conditioned office wherever, drawing it up on a map going A to B to C and not getting out on the site to see what effects it has … so to me it's absolute stupidity where they've put this survey."
Mr Grummitt was of the opinion that apart from losses associated with any tourist venture proposal, the operation of his grazing business was affected by a number of issues associated with the resumption.
The Components of the Claim
A. "Land adjoining the park along the Auburn River bank. - $7,500"
As he explained it, in an endeavour to place the area of land into an understandable perspective, Mr Grummitt described the resumed land as being the equivalent of 150 "home-sized blocks" of one-quarter of an acre (1,000 m²). He considered that quarter acre parcels would have to be worth at least $50 net each for use in perpetuity, otherwise it shouldn't have been resumed from his property in the first place.
Mr Grummitt could not accept that the highest and best use potential of the resumed land might be limited to grazing. His notional quarter acre block approach and the value attributed to hypothetical blocks of that size was, as I understood his explanation, intended to find some premium value over and above grazing use. In effect, the claim for land value equates a rounded $500 per ha. He had quite strong views about matters of valuation as indicated by the following comment – "I'd say if I were the valuer and came into Court with valuing land up against a tourist attraction comparing it with other grazing land I'd be laughed out of Court."
However if such a risk existed, Mr Meiers had accepted the challenge. He saw the resumed land as having no market potential for other than grazing use as part of a large holding. To establish its value for grazing purposes he had analysed the December 1998 sale of a 2,802 ha property 15 km distant with no potential other than grazing, to show a land value – treated, fenced and watered – of $107 per ha. That property was considered by him to have carrying capacity potential of about 465 head of breeding cattle or one beast to 6 ha. In comparison the subject parent leasehold parcel of 3,945 ha had an adopted historical carrying capacity of one beast to 12 ha. While the sale property, despite its name "Hungry Hills", was considered by him to be considerably superior in country type to the subject parent leasehold block, Mr Meiers decided to adopt a piecemeal rate of $100 per ha for the resumed land "under all headings".
Mr Grummitt had not been on "Hungry Hills" but knew its location and something of its country type. Although reluctant to become involved in a comparison with other land used for grazing purposes, he offered the opinion that the subject property, in comparison with "Hungry Hills", had superior location and access. Furthermore, apart from any tourist development potential, it was his opinion that the river frontage gave the subject aggregation some potential for development of an arable nature, including the development of citrus orchards.
Mr Meiers did not agree with such a comparison nor did he see the somewhat primitive development associated with the Auburn River National Park and its lack of services as at the resumption date, as being a catalyst in the foreseeable future for any commercially orientated tourist development.
The Court's visit to the site was helpful in understanding the evidence relative to the physical nature of the site, its location and access, the existing infrastructure and the features of the river and the National Park.
In the absence of any expert evidence as to the economic viability of any type of tourist orientated development and despite Mr Grummitt's enthusiasm for the potential of his land adjoining the scenic attraction of the river and falls, I am not persuaded that Mr Meiers has taken a harsh valuation approach in valuing the resumed land as having potential for no higher use than grazing, in the foreseeable future.
Mr Meiers' professional opinion as to the value of the land for grazing purposes is based on established valuation principles and I accept his opinion as being reasonable.
I will therefore adopt his assessment of $1,500 as representing the market value of the resumed land at the date of resumption.
B. "Loss of access road past the park to work the property. - $3,500"
Mr Grummitt explained that the public road ran through the resumed land to the unfenced original northern boundary of the National Park and there was then ease of access along that boundary. He was of the opinion that he will now need to detour around the resumption with a constructed access to an equivalent location within his property, but external to the park, as had previously existed. He envisaged that the necessary work would require the use of a bulldozer for 30 hours at a cost of $100 per hour then a final trim with a grader. The total estimate of cost in providing that access was therefore $3,500.
Mr Meiers did not accept that the change in the boundary of the National Park had any deleterious effect on the practical access requirements for the balance area of grazing land.
I am not persuaded that the balance area of the grazing property needs to have the provision of constructed access to any specific point on the new northern boundary.
I make no allowance under this specific heading of claim.
C. "Loss of walking distance for tourist enterprise
adjoining the park. - $2,500"
Mr Grummitt's explanation of this segment of the claim was that any undefined private tourist enterprise could not be developed as close to the river attraction as was previously possible and patrons of any such enterprise would have further to walk to access the river feature. He saw this disability as having a deleterious effect on the potential turnover and net profit of any such enterprise and considered that loss would equate $2,500 per annum. He claimed one year's loss of potential net profit.
It has not been accepted that potential for any private tourist enterprise was proved. There is no good purpose served by further analysing the manner in which Mr Grummitt calculated the amount claimed. No compensation is awarded under this heading.
D. "Loss of gate and grid use to pass the park to go to work. - $2,200"
This segment refers to the grid and gate which was installed in the subdivisional fence at the entry now to the extended National Park. Mr Grummitt held the opinion that as these facilities serve no good purpose for his benefit after the resumption, he should be entitled to replacement facilities of a similar nature in some other location. As I understood it, that location would be where his proposed replacement access road might have intersected the internal subdivisional fence, northerly of the resumed area.
The proposal for a new access road has been rejected as is that part of this segment of the claim for the grid ($2,000). The question of the need for a gate in the internal subdivisional fence will be discussed later.
E. "Harm by bushfires due to sections with no place for firebreaks. - $2,000" Mr Grummitt was concerned that even in drought conditions with fire restrictions there was no signage to warn visitors to the park of the dangers which could emanate from camp fires. With the proposal to fence the new park boundary and the exclusion of grazing stock there would be a build-up of combustible vegetation and an increased risk of fire spreading to his grazing lands through visitor carelessness. The claim was calculated on the basis that loss of pasture in just one fire event alone could cause the need to feed 100 cattle at a cost of $20 per head.
The question of a firebreak will be discussed later, but this claim is too speculative for it to be allowed on the basis it has been calculated.
F. "Loss of land value due to access cut off past the park. - $2,000"
Mr Grummitt's evidence was that there was an area of potentially arable river frontage country to which vehicular and machinery access was available before the resumption but not after, in the absence of significant expenditure. He equated this disability to a loss of $4 per acre for the 500 acres allegedly deleteriously affected.
Mr Meiers was unaware of any potentially arable river frontage country on the balance area but even if it did exist, he saw the internal access potentialities as being equivalent, before and after the resumption.
I am not persuaded on the evidence that loss exists under this heading.
G. "Loss of beef production due to new park shape stressing cattle. - $1,200"
Mr Grummitt expressed concern that not only was the previous access to the river for stock water interfered with and made more difficult for cattle, but the shape of the resumed area and the location of the proposed new fence over difficult terrain would cause a downhill funnel effect on the movement of stock. This had the potential to separate calves from their mothers and other protective cows, making them easier prey for the prevalent National Park dingoes.
Mr Grummitt calculated the potential loss as being eight calves per annum at $150 per head. He limited his claim to one year's potential loss of calves.
It seems the major difference in the before and after resumption situation is caused by the proposal to exclude stock from the extended National Park by fencing, when the previous boundary was unfenced. Mr Grummitt had apparently been concerned that part of his original subdivisional fence was within the new resumption. He has removed a small section of that fence.
During the hearing, Mr Meiers suggested that if a "funnel effect" was to be caused by a new National Park boundary fence and the location of the subdivisional fence, then some realignment of a small section of the subdivisional fence together with the installation of a gate in a selected position, would be a practical solution to some of Mr Grummitt's concerns. Mr Meiers estimated that a length of 100 metres of new fencing would be sufficient to overcome the perceived problem at an estimated cost of $500 together with $200 for the supply and installation of a steel gate. Mr Meiers believed that to install a grid in a subdivisional paddock fence was not consistent with district practice.
I agree that there is a significant difference between the necessity for a grid in a fence crossing a public road compared with a private access through a paddock fence.
I would categorise Mr Meiers' proposal as a severance factor consequent upon the resumption. His estimate of the cost involved in his proposal is accepted as being reasonable.
H "Loss for fence patrol. Extra half hour per week at $29 per hour - $750"
Mr Grummitt claimed that with a new park boundary fence erected there would be no vehicular access available along its full length, for maintenance purposes. Some sections would have to be either walked or "serviced by accident prone motor cycles." His claim was based on labour and incidental costs for either an extra hour of patrolling the specific fence per fortnight or one half hour per week.
Mr Meiers suggested that maintenance of the proposed new boundary fence would be the responsibility of the State but he envisaged that reasonable access together with a firebreak would be provided at the time the fence was constructed.
Even in the absence of vehicular access along the full length of the proposed boundary fence, it seems to me that, on his own evidence, Mr Grummitt regularly visits this locality in "passing the park to go to work" (Items B and D) in his normal management activities. I am not persuaded on the evidence that future management will entail any specific patrol of the new fence line which will result in identifiable loss of labour or incidental costs.
No allowance is made under this heading.
"Loss of land fenced out for deviation to reduce rocky areas. - $500" In not accepting that, in reality, it was practical to fence through rocky outcrops on the new boundary Mr Grummitt would object to the fence being deviated and constructed within the National Park to exclude any part of the resumed area. He saw in such circumstances the potential for a liability claim being directed towards him as the adjoining owner if a visitor was injured as the result of the boundary fence being located offline. He held the opinion that he would not be liable for a damages claim if a fence to exclude rock outcrops was erected off the boundary but instead, on his land. He apparently would accept such a proposal but estimated that he would then lose the use of a further area of land equivalent to 10 house blocks of one-quarter acre which he valued again at $50 net each. Hence the claim for $500.
Mr Meiers was of the opinion that even if heavy machinery had to be used, the new boundary could be fenced on line. If that was impossible then a further resumption would overcome the problem. Of course, if that was the case then a further claim for compensation would be available to Mr Grummitt.
No allowance is made for this segment of the claim.
J. "Loss of waterpipe route through the park. Needing longer route. - $500"
There was no water pipeline reticulating stock water to the parent block prior to the resumption. The claim was based on the proposition that if, however, the need should arise to provide stock water from the river at this general location, then a longer pipeline route would require an additional two rolls of 1½" polythene piping at a cost of $250 per roll.
The need for additional, if any, expenditure on the reticulation of water from the river, as a direct consequence of the resumption, was not proved to my satisfaction. The claim under this heading is accordingly rejected.
Summary of Claim and Conclusions
It is not accepted on the evidence before the Court that potential existed at the date of resumption, or in the foreseeable future for the land subject of the resumption to be used for a purpose higher and better than grazing of cattle.
Even if that conclusion was wrong and it could be shown that potential existed for development of an economically viable tourist orientated facility adjacent to the National Park, then that potential has not been destroyed merely because patrons of such a development would need to walk a short distance further, from another adjacent location, to access the features of the National Park.
Mr Meiers rejected a "before and after resumption" valuation approach in favour of a piecemeal assessment of compensation. That reasoning was entirely appropriate in the circumstances. It could have been argued that the loss of a relatively small area of inferior quality grazing land from a large grazing holding had negligible effect on the market value of that holding before resumption. The piecemeal approach allowed the opportunity to consider the individual components of the claim.
Most of those individual items were rejected by Mr Meiers, in my opinion for practical reasons, yet he was prepared to resolve the one doubt he had, with regard to the "funnel effect" of the fencing layout, in favour of the claimant. Therefore while the quantum of his final valuation is relatively small, it is not seen as being niggardly.
This determination is made on the evidence that the resumed land will be fenced out of the parent holding and that a firebreak will be provided in association with that fencing.
It is observed, on the evidence, that the cost of this fencing may be abnormal due to the terrain in some sections, and as has been noted in these reasons for judgment, the original National Park boundary had remained unfenced for many years. It may be that the relevant decision-maker will give further consideration to the cost factor when the benefits of a fence to the National Park uses are being weighed. From a public relations aspect, it can be seen that many of the disabilities which Mr Grummitt perceives to flow from the resumption, whether reasonable perceptions or not, relate specifically to the location of the boundary and the boundary fence proposal. These comments should not be interpreted as having any further bearing on this "once-only" compensation determination.
Determination of Compensation
Compensation is determined as follows:Loss of land $1,500
Severance – relocation of section of subdivisional fencing
and the provision of an internal paddock gate $700
Total $2,200
Interest
The Court was advised that no advance payment of compensation has been made.
Although the claimant's cattle had not been denied access to the resumed land as at the date of the hearing, the assessed loss of land value occurred at the date of resumption. It is seen as reasonable that interest be paid on compensation determined under that heading. The allowance for severance envisages some future expenditure which will not be necessary until the new boundary is fenced by the State. The claimant will have the use of this component of compensation until the internal fencing becomes necessary. It is not seen as appropriate for interest to be paid on the severance component.
As a consequence it is ordered that, pursuant to s.28(1)(1A) and (1B) of the Acquisition of Land Act 1967, the State pay the claimant simple interest at the rate of 6 per cent per annum on the amount of One Thousand Five Hundred Dollars ($1,500) for the period commencing on and including 25 June 1999 ending on and including the day immediately preceding the date on which payment of compensation is made.
RE WENCK
MEMBER OF THE LAND COURT
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