Haber v Department of Main Roads - [2003] QLC 83

LAND COURT OF QUEENSLAND

CITATION: Haber v Department of Main Roads [2003] QLC 0083

PARTIES: John Kevin Peter Haber
(claimant)

v.

Chief Executive, Department of Main Roads
(respondent)

FILE NO: A2001/0709

DIVISION: Land Court of Queensland

PROCEEDING: Claim for compensation consequent upon the resumption by the Chief Executive, Department of Main Roads as constructing authority for the State of Queensland, of areas totalling 7010 square metres in the Parish of Bassett, being part of Lot 2 on CPM 9125 and parts of Lots 1 to 4 on RP 714637, for future road requirement purposes under the Acquisition of Land Act 1967 and the Transport Planning and Coordination Act 1994

DELIVERED ON: 28 November 2003

DELIVERED AT: Brisbane

HEARD AT: Mackay

MEMBER: Mr JJ Trickett, President

ORDERS:
1. Compensation is assessed at Two Hundred and Seventy-three Thousand Dollars ($273,000).

2. The respondent pay to the claimant interest at the rate of 6 per cent per annum on the sum of Two Hundred and Sixty-two Thousand Dollars ($262,000) from the date of resumption up to the day immediately preceding the date upon which payment of compensation is made.

CATCHWORDS:
Resumption - Valuation - Land resumed for future road purposes - Principles of valuation - Highest and best use of resumed land - Undeveloped mangrove land at rear of caravan park - Acquisition of Land Act 1967.

Valuation - Method of valuation of caravan park - Before and after assessment - Capitalisation of net returns - Comparison with sales of caravan parks - Potential for development of resumed land.

Valuation - Commercial viability of development - Status of development approval - Special value - Disturbance - Solatium.

APPEARANCES: Mr JJ Haydon for the claimant
Mr RS Jones for the respondent

SOLICITORS: Grasso Searles Romano, for the claimant
Crown Solicitor, Crown Law, for the respondent

This is a claim for compensation by Mr JKP Haber (the claimant) consequent upon the resumption of 7,010 m² of land by the Chief Executive, Department of Main Roads (the respondent), for future road requirement purposes on 19 February 1999.

The Resumption

Notices of intention to resume dated 21 April 1998 were served on Mr Haber giving notice that the respondent intended to take an area of approximately 7,040 m² from five parcels of land described as Lot 2 on CPM9125 and Lots 1 to 4 on RP 714637, Parish of Bassett, County of Carlisle, which had a total area of 3.495 ha. Then on 19 February 1999, the land was formally taken for future road requirement purposes by proclamation published in the Government Gazette of that date, the area being later amended to 7,010 m² as surveyed.

The Claim for Compensation

A claim for compensation for $2,684,000 under s.19 of the Acquisition of Land Act 1967 dated 14 November 2001 was served by the claimant on the respondent.
That claim was referred by the claimant's solicitors to the Land Court by way of originating application filed in the Land Court Registry on 4 December 2001. Then on the last day of hearing, the claimant was granted leave to amend the claim to $2,500,000 without objection. Details of the amended claim are summarised as follows:
(a)Value of the 200 site caravan park
before resumption  $2,500,000
Value of the 200 site caravan park
after resumption  $1,800,000
Loss in Value  $700,000
(b)Value of resumed land with ability to develop a
further 50 sites  $500,000
(c)Loss in value of facilities constructed for a
250 site park  $185,000

(d)Loss in amenity of the park by the construction
of the road $400,000

(e)Cost of demolition of improvements and facilities
in the old caravan park thrown away $520,000

(f)Special value to owner and solatium $195,000
Total$2,500,000

However, during the addresses, counsel for the claimant, Mr J Haydon abandoned the claim (d) for $400,000 and the claim (e) for $520,000, reducing the overall claim to $1,580,000. Therefore the final position of the claimant was $1,591,000, with the inclusion of the agreed disturbance items (including interest) of $11,000.
Counsel for the respondent, Mr R Jones, advised me that the final position of the respondent with regard to the assessment of compensation was $111,000, comprising the valuation assessment by the respondent's valuer of $100,000, plus the agreed disturbance items of $11,000, which comprised legal and professional fees incurred in the preparation of the claim for compensation.

Purpose of the Resumption

The land was taken as part of the proposed Mackay City East-West Connector Road, which was for a short link road of about 1.3 km to provide a more direct connection between the Bruce Highway and Mackay Harbour and to relieve traffic congestion on Malcomson Street and Evans Avenue. The proposed road was to be located at the rear of the properties fronting Malcomson Street and Evans Avenue and was to traverse mainly tidal lands associated with the Barnes Creek/Pioneer River system. In addition to improving the traffic system, the proposed road would be a flood levee between the Pioneer River and North Mackay, providing a high level of flood immunity.
Although the land had been resumed on 19 February 1999, the road had not been constructed at the time of hearing, over 4 years later. Evidence was provided that on 2 September 1999 the Department of Main Roads had been granted a marine plant permit under s.51 of the Fisheries Act 1994, for the removal of mangroves and other marine plants from the area resumed for the road, to allow for reclamation of tidal land for the construction of the road/levee system. However, an appeal had been lodged against the granting of that permit, which remained unresolved by the Fisheries Tribunal at the date of hearing.
It seems that on 14 April 2000, the Minister for Transport and Main Roads made a public statement that the East-West Connector scheme would not proceed. There is no evidence to this effect, except for some internal correspondence within the Department of Main Roads. Although there is doubt about the future of the road, the parties agreed that compensation should be determined on the basis that the road will be constructed as planned. In my view, that is the only way in which to proceed.

The Resumed Land

The resumed land is all low-lying tidal land, heavily vegetated with mangroves. It is the undeveloped rear or southern part of the 3.495 ha Central Tourist Park, the balance of which has been extensively filled and developed as a caravan/tourist park. The resumption line appears to coincide with the edge of the filled area.
The Central Tourist Park is a 200 site caravan park with associated amenities building, laundry building, swimming-pool and office/manager's residence. At the date of resumption, the park comprised 138 caravan sites, 120 with concrete annexe pads, 44 self-contained villas and 18 motel-style cabins in three buildings. The whole of the developed land has been extensively filled to road level to the resumption boundary, with bitumen sealed internal roadways, with drive-over kerbing and channelling. Numerous palm trees have been planted throughout the park.
The Central Tourist Park has a frontage to Malcomson Street of about 150.375 metres, and is situated approximately 2 km from the Mackay city centre. Malcomson Street is a four-lane, full-width bitumen road and is the major connector road between the Bruce Highway at Mount Pleasant and the harbour and the city centre.
Prior to 1980, when the Ron Camm Bridge was opened further to the west, Malcomson Street was part of the Bruce Highway, with all traffic travelling through the city centre and across the Forgan Smith Bridge. The opening of the Ron Camm Bridge provided a highway bypass of the city, but Malcomson Street remained a major feeder route for east-west traffic, with traffic numbers increasing to about 20,000 vehicles per day by the date of resumption, including all heavy traffic between the Bruce Highway and the Mackay Harbour. Right-in/right-out access to and from the park from Malcomson Street is permitted, but across oncoming traffic.
At the date of resumption, the transitional planning scheme for the amalgamated Mackay City/Pioneer Shire Council area was not gazetted so that the land was controlled by the former Pioneer Shire Planning Scheme, under which the land was zoned "Residential B". The use of the land is regarded as an existing lawful non-conforming use, as the caravan park had been established prior to the commencement of any town planning controls. The new Strategic Plan designated the developed land as "high density residential" with the undeveloped land at the rear designated "open space and recreation".

The Development of the Central Tourist Park

The claimant, Mr Haber, gave evidence tracing the history of the development of the caravan park. Mr Haber is a successful businessman with extensive interests in property, both rural and urban. However, he stated that the basis of his success was the caravan park.
In 1965, Mr Haber purchased a near rectangular parcel of land with an area of 1.472 ha (Lot 2 on CMP9125), with the intention of establishing a caravan park. He said that he chose the land carefully because not only did it have a frontage of about 65 metres to Malcomson Street, which was then the main road between Mackay and Townsville, but it also backed onto a tidal area of Crown land close to Barnes Creek, part of the Pioneer River system. The land was vacant, except for an old house in the north-west corner. It sloped to the south away from Malcomson Street and had largely been cleared, except for the area at the rear which was low-lying tidal swamp, densely timbered with mangroves. This rear area was the subject of the resumption.
In 1966, Mr Haber obtained approval from the Pioneer Shire Council to develop a 300 site caravan park on that land. Much of the land was low-lying and there were mangroves scattered throughout the cleared area. Mr Haber filled part of the land and had constructed 50 caravan park sites by June 1969, later extending that to 60 sites. The office/residence building was constructed in about 1971.
By 1975, Mr Haber had purchased the four adjoining parcels of land to the east (Lots 1 to 4 on RP 714637), increasing the area of his land to 3.495 ha. He then applied to extend the caravan park onto the newly acquired land and in 1975 the Council approved the development of a 250 site caravan park, consisting of 210 caravan sites, 40 cabins and one shop. However, as a condition of approving the new park, the Council required the old park on Lot 2 be demolished and that the land be filled to a height of not less than 22.5 metres State datum. The approved plan shows caravan sites extending over the whole area, including 50 sites in the mangrove area at the rear of the land.
Mr Haber said it was heart breaking to have to destroy the old park which had been developed to a high standard as a result of years of hard work. However, the old park was not demolished until the first 100 sites of the new park were completed. By 1980, the old park had gone and 200 sites of the new park were complete, including 18 cabins, together with a pool, amenities block and laundry. However, the rear land over which 50 sites had been approved, remained undeveloped.
Mr Haber explained that he was able to fill the land at a reduced cost using his own machinery and sand fill material which he obtained from other land which he owned at Andergrove and from various sources including, the Pioneer River. His method was to fill in layers of about 1½ metres in depth by simply tipping the sand over the mangroves, with the wheels of the truck and the bulldozer doing the compacting. He said that it took him over a year to complete the first 100 sites and until 1980 to finish the park.
According to Mr Haber, the last 50 sites in the mangrove area at the rear were not developed because of lack of money. He contended that if it had not been for the Council requirement to demolish the old park as a condition of approving the new park, he would have had the funds to complete all 250 sites. However, he claimed that it was always his intention to develop the remaining 50 sites in his own time when finances permitted. After 1980, only the occasional load of opportunity fill was dumped onto the rear land. During the construction of the new park, the amenities and infrastructure were constructed to Council requirements to cater for 250 sites as approved, even though only 200 sites were developed.
Instead of developing the rear land and completing the last 50 sites, Mr Haber diversified into other ventures. In 1981, using the caravan park as security, he borrowed money from the bank and purchased a 4,000-acre grain farm which he and his son have developed. The venture proved very successful and despite high interest rates the loan was repaid. In March 1983, he purchased a residential property in Nebo Road and in September of that year he purchased two 6-acre blocks of land in Holts Road, with the intention of developing another caravan park. In the early 1990's, he purchased a 150-acre cane farm with the intention of establishing a piggery and in April 1995, he purchased the adjoining 92-ha cane farm. In total he had invested at least $1.5 million in other properties.
When asked by Mr Jones why he did not channel at least some of the money into developing the balance of the caravan park, Mr Haber responded that he was in no hurry to develop that land, it was there for the future and he had Council approval to develop. In the meantime, he was diversifying his investments and establishing assets for his family.
However, Mr Haber had further improved the existing caravan park. He had made the decision to concentrate on the tourist market rather than permanent residents and in keeping with the latest trends in the tourist industry, in late 1991/early 1992 he commenced replacing some of the caravan sites with self-contained relocatable homes, which Mr Haber calls villas. By the date of resumption there were 44 villas in place. Each villa is air-conditioned and has its own shower, toilet and cooking facilities, in addition to the usual furniture to accommodate a family of four. The villas proved to be particularly popular and at the time were seen as setting a new trend in budget accommodation. According to Mr Haber, they encouraged tourists to stay longer and were ideal for catering for groups, such as sporting groups.
Since the resumption, because of the increase in demand, an additional 29 relocatable homes have been added. Mr Haber purchased them when the Olympic Village was sold off. They are not air-conditioned and do not have showers or toilets. The balance of the park still comprises caravan sites, serviced with electricity, water and sewerage (for sullage water).
Notwithstanding that his investments have been directed elsewhere, Mr Haber contends that it has always been his intention to develop the remaining 50 sites and that he had great plans for that area. He proposed a number of possibilities, including building between 30 and 50 luxury villas in a natural setting away from the busy Malcomson Street. These villas would cater for tourists which could be transported from the Gold Coast and Brisbane by buses which he would purchase. Another possibility was eco-tourism, with boardwalks through the mangroves to cater for southern tourists who, he thought, would find it a unique experience.
Mr Haber contended that the rear land was particularly valuable: as he put it, "Losing the 50 sites on the river, our most valuable land, is a great blow to the park's viability ... We have lost the ability to grow with the approved plan, which we paid for, and to develop the taken land." (Exhibit 5, paragraph 60) After the resumption, he contends, the park will have two road frontages, will have lost its pleasant setting, the outlook will be changed, so that it will become what he calls a "suburban" park, deterring tourists from staying for any length of time, even overnight.

Highest and Best Use

Despite some evidence of potential for development for home units, the valuers agreed that the highest and best use of the claimant's land at the date of resumption was as a caravan/tourist park. However, while the valuer for the respondent was of the opinion that the present 200 site park was the maximum development, the valuer for the claimant was of the opinion that there was potential for development of the mangrove area for a further 50 sites, so that in his view the highest and best use was for a 250 site park as approved in 1975.

The Case for the Claimant

For items (a) and (b) of his claim, the claimant relies on the compensation assessment of registered valuer, Mr PA Westlake, who adopted the "before and after" method of assessment to value the 200 site caravan park. Mr Westlake's valuation before resumption was $2,482,000, while his valuation after resumption was $1,793,000, the difference being $689,000. To that figure Mr Westlake added the value of the undeveloped resumed land, which he assessed at $445,000, bringing his total assessment of compensation to $1,134,00, which for the purposes of his claim the claimant rounded to $1,200,000.
For item (c) of his claim, the claimant claims a further $185,000, reasoning that the park had been constructed with facilities and infrastructure sufficient for the total of 250 sites, even though only 200 sites had been developed. With the resumption, the claimant contends that the opportunity to develop the remaining 50 sites had been lost. Therefore, the claimant reasons, the facilities were in excess of what is required for a 200 site caravan park and a proportion rendered redundant. The claimant relied on the assessment of quantity surveyor, Mr Michael Corrigan, that the over-capacity of those facilities caused by the resumption was $182,541, which for the purposes of his claim the claimant rounded to $185,000.
Finally, for item (f), the claimant claims the amount of $195,000 for special value and solatium. This head of claim was explained in the amended claim for compensation, the claimant contending that the caravan park has special value to him because he and his family had progressively developed it personally and that he intends to keep it in the family. The solatium part of the claim seems to be based on the fact that the resumption has frustrated his plans for the future and caused him stress and injury.
However, it emerged in evidence that the special value claim was based on the fact that the resumed land could best be exploited by the claimant as he had developed a unique method of filling and consolidating the land.

The Case for the Respondent

The respondent's case was based largely on the evidence of registered valuer, Mr TJ Gould. Mr Gould also adopted the "before and after" method of assessment of compensation. He valued the 200 site caravan park before resumption at $2,500,000 and after resumption at $2,400,000, the difference being $100,000. Unlike Mr Westlake, Mr Gould attributed no value to the resumed land, regarding the low-lying, tidal mangrove land as not capable of further development.
The respondent rejected the claimant's claim that the resumption had resulted in the redundancy of a proportion of the facilities and infrastructure which had been provided for a 250 site caravan park. Although the respondent presented evidence through quantity surveyor, Mr William Douglas, who gave similar evidence to that of Mr Corrigan, Mr Jones explained that this was in the form of rebuttal evidence.
The respondent also rejected the claim for special value and solatium. The respondent contends that in the circumstances of this case, there is no special value as the matters raised by the claimant are personal to the owner and are not attributes of the land itself. With regard to solatium, the respondent argued that unlike some other jurisdictions, the Queensland legislation does not provide for the payment of solatium, which is an amount payable over and above the recognised elements of compensation.

The Evidence of Urban Economist, Mr Norling

Mr Jon Norling, an urban economist, gave evidence on behalf of the respondent. Mr Norling had extensive experience in assessing the market and economic potential of retail, tourist and commercial facilities. He provided a market assessment of the commercial prospects of the Central Tourist Park, before and after the resumption.
In undertaking these exercises, Mr Norling studied the available data relevant to tourism and caravan parks in Queensland generally, before focusing on the market data in respect of Mackay's caravan parks. The 16 caravan parks in the Mackay area averaged 97 sites, with a proportion of cabins and on-site vans. They averaged 20 permanently occupied sites, with the number declining over time. The parks attracted twice the number of tourist site nights per month in the peak tourist season from June to September than in the low February/March period. Nine of the 16 caravan parks are located in the urban area of Mackay, the remainder in outlying areas.
Of the nine urban caravan parks, the average park had 105 sites, comprising 14 cabins with en-suites, five cabins without en-suites, five on-site vans and 81 powered sites; more than a third (39 sites) were occupied by permanent residents; was likely to be independently operated; and was likely to have been developed more than 20 years ago.
By way of comparison, the Central Tourist Park was the largest, almost twice the size of the average park. It had the largest number of tourist sites and had the largest number of cabins (41%) and operated at the budget end of the market, offering competitive rates and is the closest to the Mackay city centre.
Mr Norling was not impressed with the park facilities, which he described as appearing to be old, worn and containing a very dated décor. He commented that the prices charged were significantly below those charged by other large parks in Mackay, indicating the budget orientation of the park. He went on to say that the park is not orientated towards the resumed land or Barnes Creek. All roads and sites are orientated towards the central amenities area. The brochure for the park makes no reference to its location near Barnes Creek, the water, or the mangroves.
Mr Norling concluded that at the date of resumption, there was no commercial opportunity to expand the Central Tourist Park based on the reasoning that the Mackay caravan park market was stable, with occupancy rates consistently below Queensland averages. It was a highly seasonal market, with low levels of demand from October to May. The Central Tourist Park is already the largest caravan park in Mackay, and is a budget-orientated facility which is not as popular as higher standard facilities. Its revenue records indicate that it was achieving occupancy rates which were similar to the Mackay average and in decline. The park does not have an intrinsic locational advantage, such as a beach or highway location.
Mr Norling was of the view that a greater financial return could be obtained by refurbishing existing facilities and increasing prices, rather than by adding to the existing stock of budget facilities. He questioned the viability of expanding by 50 sites on the resumed land. Any additional revenue would have to be weighed against the cost of developing the new sites and in this exercise it would be inappropriate to apply the average occupancy rates, because any increased patronage could mostly be accommodated in existing facilities. He estimated that occupancy rates of 15% of the new facilities would properly reflect the marginal increase in revenue able to be obtained.
Mr Norling thought the decrease in traffic on Malcomson Street would cause a negligible loss in patrons. The park is listed in the RACQ directory and maintained a display of brochures in the Mackay Visitor Information Centre, which was used by many tourists to select accommodation. The caravan park industry relies significantly on repeat custom, which would remain unaffected, as would patronage by permanent residents.

The Evidence of Other Experts

Part of the evidence in this case comes from five experts whose reports were tendered by the respondent by consent. Those experts were not called to give oral evidence.
Ms Dawn Couchman, a fisheries scientist with the Queensland Fisheries Service, provided a statement in which she expressed the view that as at the date of resumption, it was unlikely that permits under s.51 of the Fisheries Act 1994 for removing, destroying or damaging mangroves would be granted. Departmental policy at the time was not to support the issue of permits for mangrove clearing for non-marine orientated purposes.
Mr Phil Dance, a town planner, provided a report regarding the town planning issues affecting the claimant's land at the date of resumption. Mr Dance explained that at that time the land was controlled by the superseded Pioneer Shire Council Planning Scheme, which had been administered by the Mackay City Council since the amalgamation of the two local government areas. The land was designated "Urban" in the strategic plan and was included in the "Residential B" zone, the purpose of which was described as "... to provide for high density residential development and tourist accommodation in close proximity to all urban facilities." Although the use for "caravan parks" was a column V, or prohibited use in that zone, the Mackay City Council advised Mr Dance that as the caravan park was established prior to the commencement of any town planning controls, there was a right to continue that use as an existing, lawful non-complying use.
At the date of resumption, the Mackay City Council transitional planning scheme was well advanced, the draft had been adopted by the Council and was awaiting gazettal. It was gazetted on 26 May 1999, just three months after the resumption. Under that scheme, the strategic plan designates the northern part of the claimant's land as "high density residential" and the rear part, coinciding with the resumed land, as "open space and recreation". Mr Dance expressed the view that at the date of resumption, the Council would have been expected, if not obliged, to be guided by the draft scheme in deciding an application. For reasons which he explains in detail, Mr Dance concluded that unless the resumed land enjoyed some subsisting approval for use or improvement, then it had no prospect for use for any purpose whatsoever.
Mr CL Beard, a traffic engineer, provided a statement that Malcomson Street was functioning as an arterial traffic route. In February 1999, it was carrying approximately 18,300 vehicles per day, with the expectation that traffic would continue to grow to an estimated 21,100 vehicles per day in 2008 and approximately 22,100 in 2011. When the East-West Connector Road is constructed, Malcomson Street is expected to function as a lower order road, a sub-arterial road or a district access road, with almost all heavy trucks using the new road, while light vehicles would be split approximately evenly between Malcomson Street and the new road.
Mr Beard expressed the opinion that apart from potential traffic noise, the primary impact of the construction of the East-West Connector Road will be to facilitate vehicular access to and from the Central Tourist Park. The driveway access of the caravan park to Malcomson Street would be close to capacity in 1999 during the morning peak period. By 2008, without the new road operating, conditions would be very poor. Without the new road, the inadequate access safety and capacity would mean that any proposal in 1999 to increase the capacity of the caravan park would have been refused.
Mr Frits Kamst, an environmental and acoustical consultant, provided an acoustic report concerning the likely impact of road traffic noise as a result of the construction of the new road. According to Mr Kamst, at the date of resumption for a road such as the proposed East-West Connector Road, the Department of Main Roads noise level guidelines required a noise limit of 57.5 dB(A) for adjacent properties, such as the Central Tourist Park.
Mr Kamst measured the road traffic noise along Malcomson Street as at June 2002 and concluded that it was equal to 67.6 dB(A). By use of a road traffic noise prediction model which takes into account traffic volumes, percentage of heavy vehicles, slope of the road, topography and barriers, Mr Kamst predicted that by the year 2011, if there had been no resumption and no East-West Connector Road, noise levels on the caravan park would range from 72 dB(A) along the Malcomson Street boundary to 49 dB(A) near the southern boundary, that is, at the edge of the filled land.
The model also showed that with the construction of the East-West Connector Road (assumed to be in 2001) without any noise amelioration measures, the 57.5 dB(A) noise limit would be exceeded along the southern boundary. However, if a 3.5 m noise barrier was constructed on the road reserve along the East-West Connector Road, the noise limit along that road would be met, with noise levels ranging from 54 dB(A) to 57 dB(A) along the boundary. With the diversion of traffic from Malcomson Street, noise levels along the northern boundary would range from 66 dB(A) to 67 dB(A).
However, with the increase in road traffic volumes, the noise limit of 57.5 dB(A) would be exceeded along the boundary with the East-West Connector Road, but this could be overcome by replacing the chip seal road surface with a dense graded asphaltic surface, as proposed by the Department of Main Roads. With the road surface replaced and a noise barrier along the East-West Connector Road, by 2011 the noise limit along the road would be met, with noise levels of about 53 dB(A) along the boundary. However, noise levels along the northern boundary with Malcomson Street would be about 68 dB(A).
Mr Kamst concluded that based on predictions for the year 2011, the noise modelling showed that noise levels on the southern half of the caravan park would increase by up to 6 to 7 dB(A), while noise levels on the northern half of the land would decrease by up to 6 to 7 dB(A), because the East-West Connector Road would divert about 50% of the traffic, including most of the heavy vehicles from Malcomson Street.
The other expert report tendered by consent was that of accountant, Mr Keith Cooper, which is discussed with the evidence of the respondent's valuer, Mr Gould.

The Evidence of the Quantity Surveyors

To support his claim (c) for $185,000 for the value of facilities and infrastructure which were alleged to be rendered redundant by the resumption, the claimant called quantity surveyor, Mr Michael Corrigan. The claim was based on the reasoning that as a direct consequence of the resumption, the opportunity to develop the additional 50 sites had been lost, so that a proportion of the facilities designed for 250 sites has been, in effect, thrown away. Although not recognising this as a valid claim, the respondent called quantity surveyor, Mr William Douglas, to give evidence in rebuttal.
Mr Corrigan's assessment was based on the following reasoning:
·The claimant's land had approval for 250 sites, but only 200 sites had been developed.
·However, the facilities and infrastructure had been provided for the approved number of sites.
·The additional capacity to cater for 250 sites over and above 200 sites will now be superfluous, as the full benefit will never be realised.
·The costs of providing the additional facilities and infrastructure should be taken into account when calculating the loss which the resumption will cause.
·Although the facilities and infrastructure have been in place for some time, they have been maintained and upgraded as necessary and would represent a similar value as if constructed new as at the date of resumption.
Mr Corrigan's assessment of costs associated with the over-capacity caused by the resumption were a direct proportional reduction from the 1999 costs of providing the various facilities:
Consultant's fees  $15,000
Ablution facilities  $103,664
Laundry facilities  $27,352
Sewerage pipe works and manholes  $21,710
Sewerage pump station  $4,760
Electrical services  $2,985
Water supply  Nil
Roadways, office/manager's residence, etc  Nil
Swimming-pool  $7,070
Total$182,541

Mr Douglas provided comments on Mr Corrigan's report. They were confined to the manner in which Mr Corrigan costed each of the facilities. He was not asked whether he accepted the validity of the claim for compensation. Overall, Mr Douglas concluded that Mr Corrigan's costings were excessive.
Mr Douglas considered that the amount of consultant's fees should be $4,700, rather than $15,000 allowed by Mr Corrigan. Although they reached a degree of compromise with regard to the excessive development of the ablution facilities, Mr Douglas disagreed with the calculation of its gross floor area. Using his figures, together with their agreed rate per m² and adopting Mr Corrigan's methodology, Mr Douglas would have arrived at about $95,456. He agreed with Mr Corrigan's figure for the laundry facilities of $27,352 and accepted his figure of $2,985 for electrical services. However, he disagreed with Mr Corrigan's figure of $21,710 for sewerage pipe works and manholes, his estimate of additional costs being $7,082. He did not think the size of the swimming pool was dictated by the number of sites.
As I understand his evidence, by my calculations Mr Douglas would have assessed the proportion of excess development at about $139,600, instead of Mr Corrigan's estimate of $182,541. However, he would have reduced that figure, because Mr Douglas, unlike Mr Corrigan, was of the view that depreciation of between 25% and 30% should have been allowed at least on the buildings, as they were over 20 years' old at the date of resumption.
If it was necessary to make a determination, I would prefer the evidence of Mr Douglas. However, for reasons I will discuss later, I do not consider this to be a valid head of claim.

The Valuation Evidence

There is substantial agreement between the valuers in this case. They agree on the following issues: the market for caravan parks depends upon their potential net returns; therefore, capitalisation of net returns is the appropriate method of valuation; the capitalisation rate would be the level of yield which would be required by a potential purchaser; this is best established by analyses and comparison with sales of other caravan parks.
Mr Gould points out this method of valuation requires a consistent approach in the analysis of the trading operation; caravan park properties are generally purchased by owner/operators, therefore what he calls "net operating income" is generally analysed excluding any management salaries and any interest or depreciation allowances. This was also the approach adopted by Mr Westlake. Although this income is not strictly "net profit", I will adopt that term throughout my discussion of the valuation evidence.
The valuers also agree that the result arrived at by the capitalisation method should be checked by other methods of valuation and that direct comparison with sales of other caravan parks analysed on a rate per site basis, is a valid check method. However, they were aware that there are difficulties in making appropriate allowances in comparisons for size, location, amenities, etc, as well as the input of the owner and the mix of caravan sites and other on-site accommodation. Both valuers relied upon direct comparison in addition to capitalisation of net returns.
Somewhat surprisingly, both valuers arrived at very similar valuations for the 200 site caravan park before resumption and Mr Westlake readily agreed to adopt Mr Gould's figure of $2,500,000. However, they arrived at their respective valuations differently, by adopting different net profit figures and different capitalisation rates.
The valuers also agreed that for the valuation after resumption, the net profit figure should remain the same as for the before resumption valuation, but they adopted different capitalisation rates for their after resumption valuations.
Another major area of disagreement was in their approaches to the valuation of the resumed land. Mr Westlake assessed its value on the assumption that the claimant had approval for the development of a further 50 sites on that land and could have developed them for less than normal development costs. On the other hand, Mr Gould was of the view that the resumed land had no viable commercial potential and that a prudent purchaser would pay nothing over and above the value of the caravan park.

Mr Westlake's Valuation Approach

Mr Westlake assessed the loss in value of the 200 site caravan park by means of "before and after" valuations and then added to that figure what he considered to be the value of the resumed land. In order to arrive at his valuation before resumption, Mr Westlake had regard to the trading figures for the park for the year 1998/1999, which showed a gross turnover of $535,964. After deducting the appropriate expenses and excluding inappropriate items, he arrived at a net profit of $322,703 for that year.
Mr Westlake's report included the details of the sales of seven caravan parks between June 1995 and May 1999 in various parts of the State. Those parks of various sizes, locations and types, sold for prices ranging from $870,000 to $2,250,000, with net profits from $115,000 to $290,000 and reported yields of 12.9% (Brighton Bayside Caravan Park) to 16% (Cape Hillsborough Tourist Park). However, Mr Westlake seems to have used those sales as little more than a guide, relying instead on his experience and knowledge of the caravan park industry. He expressed the view that the yields that could be expected ranged from a low of 12%, to a maximum of approximately 20%-22%, depending on location, size, quality and occupancy type, all of which contribute to the cash flow of the park. For a 12% yield, he would expect that the park would be a fairly modern tourist park in a prime location, with a good occupancy rate in excess of 60%, such as the Tallebudgera Creek Cabin Park. At the other end of the scale, he would expect that a park yielding 20%, would be a smaller park, in a lower socio-economic area, with mostly itinerant or permanent occupants, rather than tourists, such as the Mackay Harbour Caravan Park.
Mr Westlake said that before the resumption, the claimant's park would have been regarded as a typical fully operational mid-range tourist park. Although it is an older park, it is well maintained and well presented. Park records showed an occupancy rate of 59.74% for the villas and cabins. While no records were available for the caravan sites, Mr Westlake expressed the view that occupancy rates of 50% were standard for the area.
In determining a capitalisation rate for the before resumption valuation, Mr Westlake reasoned that the park was at the lower end of the risk profile; it was an established park, with an established trading record and a fairly stable return; it was following the trends in the industry and was situated in a good location, close to the Mackay business centre. He adopted a capitalisation rate of 13%, and a net profit of $322,703 (from the 1998/1999 return) resulting in a value before resumption of $2,482,000.
However, Mr Westlake saw the situation as being quite different after resumption. In his view, there will be major impacts from increased noise and loss of visual amenity. He was aware that the proposed new road will funnel heavy traffic to the port area and the city and that even though heavy vehicle traffic will use the new road, Malcomson Street will remain a major feeder road with reasonably heavy traffic. Therefore, there will be road noise from the back as well as from the front. He was also aware that the respondent intends to construct noise attenuation fencing, but the noise level would still be at 60 dB(A). The fencing is to be 3.5 metres high, which in his view will detrimentally affect the amenity of the park. He reasoned that people like to stay in a quiet, pleasant environment and apart from the additional noise, would not like to stay near a sheer wall.

In Mr Westlake's view, before the resumption there was an open, pleasant environment in the park, with a vista looking across a canopy of mangroves, giving an open park-like outlook to the south, with nothing to block the sea breezes. He thought that after the resumption, all that will change and word will spread through the travelling public; income from tourist occupants could be reduced, changing the nature of the park from focusing on tourists to relying largely on permanent residents.
Significantly, Mr Westlake did not think that the altered traffic flow resulting in fewer vehicles passing the park on Malcomson Street, would have any impact upon the occupancy rate. Unlike Mr Haber, who thought that it would have a significant impact, Mr Westlake thought that impulse accommodation decisions by the travelling public would be minor. In his view, people intending to stay at the caravan park would be able to find it, notwithstanding the altered traffic arrangements.
Because he considered that there were so many uncertainties affecting the income stream after the resumption, Mr Westlake was of the view that a prudent purchaser of the caravan park would consider that the risk profile had increased significantly. He felt that the capitalisation rate should be increased accordingly. Because of the potential impact of the resumption on the income stream, Mr Westlake was of the opinion that a prudent purchaser would expect a capitalisation rate of 18%. Adopting the same net profit as in the before resumption situation of $322,703, Mr Westlake arrived at a valuation after resumption of $1,793,000. Therefore, Mr Westlake's assessment of the loss in value of the 200 site caravan park because of the resumption amounted to $689,000.
Having arrived at the loss in value of the caravan park, Mr Westlake turned to the assessment of value of the resumed land. He reasoned that because the Council had approved 250 sites, the resumed land had potential for the development of a further 50 sites. His valuation before resumption of $2,482,000 showed a value of $12,410 per site as developed. Mr Westlake applied that figure to the potential 50 sites, which indicated a developed value of $620,500 for the resumed land. From that figure he deducted development costs comprising:
Engineers' fees  $2,000
Site preparation  $2,100
Fill including compaction factor of 30%, 41,920 m³ @ $1.30/m³     $54,496
Site construction - 50 sites @ $2,350  $117,500
Total development costs  $176,096

When those development costs are deducted, Mr Westlake's value of the resumed land in its undeveloped state is $445,000. When the value he arrived at for the resumed land of $445,000 is added to his assessment of the loss in value of the caravan park of $689,000, his total assessment of compensation is $1,134,000.
Mr Westlake conceded that his value of the resumed land, which amounts to approximately $63.50 per m², is higher than market value, but in his view it reflects special value to the owner because "... he can do so much more with it - it's approved and he has facilities." (Transcript p.251) In addition, he reasoned, the claimant has his own method of filling and is able to do the work himself; the land is therefore more valuable to the claimant than to any other person.
When asked by Mr Haydon to express an alternative view as to the value of the resumed land should the Court find that there was no valid approval for the development of that land, Mr Westlake contended that there would still be value in the land for eco-tourism; boardwalks could be built through the mangroves giving access to the creek frontage for fishing and other activities. While conceding that he had no sales evidence, in his professional judgment it had a value of between $30 and $35 per m², probably a total value of around $200,000.
In any event, he considered that the land had value because it enhanced the amenity of the park, providing a backdrop overlooking the canopy of mangroves.

Mr Gould's Valuation Approach

Mr Gould also adopted the "before and after" valuation approach to the assessment of compensation. However, while his valuation before resumption amounted to a figure similar to that assessed by Mr Westlake, his valuation after resumption was vastly different. In addition, Mr Gould concluded that the resumed land had no value.
To ascertain the appropriate net profit for his capitalisation exercise, Mr Gould had regard to a report dated 14 February 2003, prepared by Mr Keith Cooper, of Moore Stephens HL, Chartered Accountants and Financial Advisors. Mr Cooper analysed various trading figures supplied by the claimant, but admitted that it was difficult, because the financial statements concerned the operations of the Haber Family Trust. They related not only to the caravan park, but to other interests including farming. However, Mr Cooper concluded that the caravan park income was $535,964 for the 1998/1999 financial year, $542,352 for the 1997/1998 financial year and $495,062 for 1996/1997. Mr Cooper then deducted what he considered to be the appropriate expenditure for each year, to arrive at net profit figures for the relevant years of $222,102, $135,789 and $170,547.
However, Mr Gould concluded that further adjustments were required. He explained that caravan park properties are generally bought and sold on their potential cash return to an owner/operator partnership of two persons. Therefore, it was common practice to adjust trading figures to exclude provisions for depreciation and remuneration to the ownership team, or to staff for work which would normally be done by the ownership team. Adding back those items, net operating income would have been $333,826 for 1998/1999, which represents 62.3% of gross sales, which Mr Gould says is well within the range of achievable net to gross ratios shown by analyses of other caravan park operations.
Mr Gould also made similar adjustments to the net profit figures derived by Mr Cooper for the two previous years, which showed net profit ratios of around 55%. However, he noted that there were significant anomalies in some items of expenditure for those years. He had no regard to the figures for those two years, apparently regarding them as unreliable as evidence of the net profit of the park.
Mr Cooper had also provided details of a profit and loss statement for John Haber Investments Pty Ltd, for the year ended 30 June 2001. Although, as Mr Gould pointed out, those figures are for a period after the date of resumption and have not been analysed or adjusted, they did differentiate between accommodation fees for permanent residents and for tourists in the income from the park for that year. They showed that the ratio of tourist accommodation to permanent accommodation was about 55% to 45%.
Mr Gould had also been provided with the daily accommodation figures for the villas and cabins for the calendar years 1998 and 1999. His analysis of those figures for the financial year 1998/1999, showed overall occupancy of 59.6%, with monthly occupancies ranging from 43.4% in February 1999 to 76.6% in June 1999. He reasoned that if that level of occupancy was projected at the average of the rates for daily and weekly asking tariffs, annual income of about $370,000 would be expected from the villas and cabins. For that financial year, only about $166,000 of income would have come from caravan sites, or about 30%, ignoring minor income from other sources.
Having regard to the gross income from the caravan park for the two years prior to the resumption, Mr Gould concluded that a prudent purchaser would have expected to have at least maintained that level of income of about $540,000. From the financial returns, he was of the view that such a purchaser would expect a net profit of about 65% of gross income, or $350,000.
Mr Gould commented that in assessing the valuation of the caravan park before resumption, he had used the capitalisation approach, but he was mindful of the fact that he had to make assumptions regarding the trading figures and the likely net income. In the circumstances, he had placed more reliance than usual on the direct comparison approach and the use of an average value per site equivalent.
Mr Gould had regard to 19 sales of caravan park properties situated between Sarina and Cairns, between February 1996 and June 2002. The sales range in size from 15 to 176 sites, with values per site from $8,393 at Sarina to $30,851 at Shute Harbour. However, Mr Gould considered none of the sales to be directly comparable to the claimant's park, comparisons being difficult due to variations in size, location and mix of van sites and cabins.
Mr Gould's analysis of the sales evidence shows a broad range of yields (capitalisation rates) from 12.2% to 19.3%, but he thought that the sale showing the lowest yield was an aberration, as it was based on estimated net profit which appeared to be very conservative. The only other sales showing less than 14% were all beachfront locations. Only three sales showed yields in excess of 17%.
Mr Gould adopted a capitalisation rate of 14% for the before resumption valuation which, using his adopted net return of $350,000, resulted in a before resumption valuation of $2,500,000. As a check on this valuation, Mr Gould considered the eight sales in the Mackay area. Three small parks with high components of residential and lifestyle considerations gave site values substantially above $15,000 per site, while the other five sales showed site values ranging from $9,000 to $15,060 per site. In his view, a site value of $12,500 was appropriate for the claimant's park, showing the same before resumption value of $2,500,000, which he adopted.
However, unlike Mr Westlake, Mr Gould attributed no additional value to the undeveloped land at the rear of the caravan park. Although the 1975 Council approval for 250 sites extended over that land, he was of the opinion that the highest and best use of the claimant's land before resumption was for a 200 site tourist park and that the rear land added no further value. He arrived at this opinion for two reasons; first, he had been advised that further development would not be allowed on the low-lying tidal mangrove land and, furthermore, there was no commercial justification for the expansion of the existing caravan park.
In undertaking his valuation of the caravan park after resumption, Mr Gould reasoned that no improvements had been lost as a consequence of the resumption, so that the improvements all continue to provide the same functionality for the operation of a 200 site tourist park.
Assessing the impact of the resumption, Mr Gould had regard to the report by the traffic engineer, Mr Beard, and concluded that traffic access difficulties experienced by the park would be improved by the scheme, as traffic flow volumes along Malcomson Street will be virtually halved. In his opinion, any impact on the business from the reduced traffic flow would be largely overcome if suitable additional tourist information signage was provided: Mr Norling's report made the point that selection of a caravan park is generally not a decision made on impulse.
In Mr Gould's view, there will be no substantial change to the traffic flowing southbound. However, changes to northbound tourist traffic could result in a minor loss of custom, which he estimated at 10%. If tourism represented 55% of the business and northbound tourists represent half of that clientele, a 10% leakage would reflect a loss of 2.75% of overall trade.
In relation to noise and visual amenity, Mr Gould had regard to the report by the environmental consultant, Mr Kamst. With the lessening of traffic levels on Malcomson Street, there will be reduced noise impact from that street, but the East-West Connector Road at the rear will cause higher than acceptable noise levels. Mr Kamst recommended construction of a 3.5 metre noise barrier and Mr Gould assumed that such works would be provided by the respondent. While a noise-attenuation barrier would protect the southern part of the land from undue noise exposure, the northern part would benefit from the reduction in traffic volumes resulting from the scheme. However, Mr Gould thought that benefit would be offset by the lack of visual amenity provided by a 3.5 metre noise barrier at the rear.
Mr Gould saw little appeal in the existing outlook to the south over stunted mangrove and tidal mud flats, but he could not see the presence of the sound fence as being any more aesthetically pleasing. He though that on balance, while the noise impact would be generally improved after the resumption, the visual amenity would be sacrificed and he considered that there was no material difference in value, either before or after the resumption.
However, Mr Gould came to the conclusion that a prudent purchaser of the land after resumption would be left in some doubt as to whether there may be a slight impact on the future trading as a result of the redirection of part of the traffic flow from Malcomson Street, a possible reduction of about 2.75% of gross income. But he reasoned that such a small reduction would not automatically flow through to net income, as some business expenses are related to the level of occupancy of the park.
In his experience, purchasers would be more likely to reflect the higher risk of unknowns by either adjusting the capitalisation rate, or by reducing the average rate paid per site. In his opinion, an adjustment of 0.5% in the capitalisation rate would reflect a generous allowance for the comparatively small risk to the income because of the construction of the new road.
Using the same net profit of $350,000 that he used in the before resumption exercise, but adopting a capitalisation rate of 14.5%, Mr Gould arrived at a valuation after resumption of $2,413,793.
As an alternative method, Mr Gould reasoned that on a per site basis, before the resumption a value of $12,500 was adopted for the 200 sites to arrive at a valuation of $2,500,000. In his opinion, if a purchaser was to discount the price per site because of a partial reduction in income, such a purchaser would round the price per site back to $12,000. For the 200 site park, this would result in a valuation after resumption of $2,400,000, which he adopted.
Therefore, Mr Gould's assessment of compensation was $100,000, being the difference between the valuation before resumption of $2,5000,000 and the valuation after resumption of $2,400,000.

The Issues

Apart from the issues as to the validity of the heads of the claimant's claim (c) for the excessive capacity of the facilities and services, and claim (f) for special value and solatium, which I will deal with later, the principal issues between the valuers can be identified as the appropriate capitalisation rate to be used in the valuation after resumption and the value of the resumed land.
However, before dealing with those issues, it is appropriate to consider the applicable legislation. In this case, compensation is required to be determined under the provisions of the Acquisition of Land Act 1967, s.20 of which provides:
"(1)             In assessing the compensation to be paid, regard shall in every case be had not only to the value of land taken but also to the damage (if any) caused by either or both of the following, namely—
      (a)        the severing of the land taken from other land of the claimant;
(b)the exercise of any statutory powers by the constructing authority otherwise injuriously affecting such other land.
(2)               Compensation shall be assessed according to the value of the estate or interest of the claimant in the land taken on the date when it was taken.
(3) In assessing the compensation to be paid, there shall be taken into consideration, by way of set-off or abatement, any enhancement of the value of the interest of the claimant in any land adjoining the land taken or severed therefrom by the carrying out of the works or purpose for which the land is taken.
(4) But in no case shall subsection (3) operate so as to require any payment to be made by the claimant in consideration of such enhancement of value."
The claimant is therefore entitled not only to the value of the land taken, but also any diminution in value of his remaining land caused by severance and/or injurious affection, set off by any enhancement in the value of that remaining land as a result of the resumption. Both valuers have agreed that the "before and after" method is appropriate for the assessment of compensation in this case and both have purported to apply it.
The "before and after" method was considered by the Land Appeal Court in Brisbane City Council v Lansbury (1977) 4 QLCR 502. After considering a number of authorities and texts on the method, the Land Appeal Court concluded at 509:
"We are satisfied that the 'before and after' method is not contrary to statute and is an appropriate one to apply in determining compensation where cases involve severance, injurious affection and/or enhancement."
Then after considering details of the case before it, the Land Appeal Court continued at 509:
"The difference between the first mentioned valuation and the total of the last mentioned values must represent the total loss suffered by the claimants in that such difference must include the value of the land taken and injurious affection to the residues reduced by any enhancing factor that may arise as a consequence of the resumption and which is automatically reflected in the values of the residue areas. In our view this approach is a lucid and commonsense one."
Lansbury's case and the earlier authorities demonstrate the advantage of the "before and after" method of assessing compensation, as it includes the value of the land taken, severance and injurious affection to other lands of the claimant, offset by any enhancement to the claimant's adjoining land.
In the present case, the claimant has contended that there is an element of special value to the owner in the resumed land, which he has claimed as a head of claim separate to the value of the land taken. The respondent alleges that this is double dipping. However, that the "before and after" method of assessment can accommodate special value to the owner, if undertaken properly, was dealt with by Wells J in Commissioner of Highways v Tynan (1982) 53 LGRA 1 at 10-11:
"This method requires the valuer to begin by taking the original tenement - in this case, the farmland as held and used immediately before the valuation date, which is 4 September 1980, and giving to it its market value; he must then determine the value to the claimant of the retained land, and for that purpose he must first find a market value for the retained land, and then bring to account the special financial advantages, and the special exemptions from financial disadvantages, that were lost to the retained land by reason of the removal of the subject land from the original farm complex and the structure of use and occupation, in accordance with which the farm was formerly operated. If this procedure is thoroughly and imaginatively pursued, the difference between the before and after values will yield a figure representing the value of the subject land to the claimant. Where it is based on reasonable sales evidence, this method is generally reliable, provided the circumstances are scrutinised in order to identify all the special benefits lost, and no error of principle is made in assessing what was their value to the claimant."
In the present case, the approach taken by the claimant's valuer was to assess compensation by the "before and after" method in respect of the 200 site caravan park and then, as a separate exercise, to assess the value of the land taken. This is not a "before and after" assessment of compensation, but a variant of the summation approach. No land was taken from the developed area containing the 200 site park, so compensation assessed for the loss in value of the park is in respect of severance (if any) and injurious affection, as there was no suggestion in his valuation of any enhancement.

The conventional approach would be for the valuer to assess the value of the whole of the land before resumption at its highest and best use. As Mr Westlake was of the opinion that the resumed land had potential for development for further caravan park sites (or sites for villas) and also had special value, the value of that land should have been included in his "before" valuation. However, in this case, his final assessment of compensation would remain unchanged, as Mr Westlake simply added his value of the resumed land to the result of the "before and after" assessment of the developed land.
Although Mr Westlake's unconventional approach makes no difference to his assessment of compensation in this case, it is not an approach which should be adopted. As he has assessed special value to the owner as part of this process, that will impact on the separate head of claim, which I will deal with later. On the other hand, in his "before and after" assessment of compensation, Mr Gould adopted the conventional approach. Mr Gould's valuation of $2,500,000 attributes no value to the resumed land.
Putting aside for the moment the question of the value of the resumed land, the two valuers arrived at remarkably similar "before" valuations for the 200 site caravan park. Mr Westlake accepted Mr Gould's valuation of $2,500,000. However, they arrived at their respective figures by adopting different net profits and different capitalisation rates. These differences in approach would not matter, but for the fact that they are crucial to the next step, the assessment of the valuations after resumption. In their assessments of the "after" valuations, the valuers are far apart.
Although there was not a great deal of difference between them in the respective net profit figures adopted, I prefer the figure of $350,000 adopted by Mr Gould to the $322,703 adopted by Mr Westlake, as I consider that it is more soundly based. To arrive at his "before" valuation, Mr Westlake used a capitalisation rate of 13%, while Mr Gould used 14%. In my view, 13% is not appropriate for the Central Tourist Park, as it is only 1 percentage point removed from the yield which Mr Westlake expected from a fairly modern tourist park in a prime location, with a good occupancy rate, such as the Tallebudgera Creek Cabin Park. With all its positive attributes, the evidence indicates that the Central Tourist Park could not attract such a yield.
On the other hand, Mr Gould had closer regard to the yields shown by sales of other caravan parks, particularly the three sales in Mackay showing yields of between 14% and 15%. The only sales showing less than 14% were at beachfront locations and therefore not directly comparable. In my view, Mr Gould's capitalisation rate of 14% is more soundly based and therefore appropriate for the Central Tourist Park.
In any event, the valuers have agreed on the "before" valuation of $2,500,000. It is their respective approaches to the "after" valuation which is controversial. However, I accept their reasoning for adopting the same net profit figure after resumption as they adopted before. Where the after resumption income could be predicted with any certainty, then it would be appropriate, indeed necessary, to adopt that as the after resumption income. But here, no such prediction could be made with any confidence. There are uncertainties. Therefore, it is acceptable to adopt the known net income before the resumption and make allowance for the uncertainties of the after resumption situation in the capitalisation rate.
Mr Westlake saw the likely impact of the resumption on the park quite differently to Mr Gould. In his opinion, the increased noise and the adverse effect on visual amenity resulting from the noise barrier would have a major impact. He thought that there would be less quiet area, which would lessen its attraction to tourists, with the result that the focus of the park may have to change from tourism to permanent residents, with a likely adverse effect on the income stream. He considers that these impacts would be so significant that he adopted a capitalisation rate of 18%.
On the other hand, Mr Gould was of the opinion that the resumption would have a relatively minor impact, which would be more perceived than real. He pointed out that the major attraction to the public was the budget nature of the tariff at the Central Tourist Park, not the adjoining mangroves. Its other attractions, such as its proximity to the city centre, remain unchanged and he thinks that the same clientele will continue to use the park and that overall the business would not be adversely affected.
There is no evidence that the resumption will cause the park to change its focus from tourists to permanent residents. Even if it did, there is no certainty that the revenue stream will decrease. In Mr Gould's view, it could even increase, because with permanent residents the seasonality risk is minimised. In his experience, it is not unusual to expect a lower capitalisation rate for a park with a permanent resident income stream. However, Mr Gould conceded that the management of a park with permanent residents requires greater management skills and care in selection of residents.
Mr Gould's opinion of the likely impact of the resumption was substantially supported by the sale of the Brighton Bayside Caravan Park at Brighton, which has similar characteristics to the Central Tourist Park after resumption. Despite its name, it is far from being in a resort setting. It has the Hornibrook Highway at the front and the Deagon Bypass road at the rear, which carries over 30,000 vehicles per day. Along that road is a 1.8 metre high sound fence, which has been screened to soften its starkness, but it is still visible. It is a park for permanent residents, with fairly basic accommodation units.
The Brighton Bayside Caravan Park is one of the sales referred to by Mr Westlake. It has 128 sites and a RACQ rating of three stars. It sold in November 1998 for $2,250,000, with a turnover of $479,000 and a net profit of $290,000, indicating a yield of 12.9%. Mr Westlake contended that this yield was achieved only because it is situated on the outskirts of a capital city and has potential for a higher and better use. However, he admitted that he had no evidence to suggest that it sold other than as a caravan park business based on its income stream. Furthermore, it was one of the sales which he put forward to support his valuation.
The Brighton Bayside Caravan Park has many similarities to the Central Tourist Park in the after resumption situation, but provides no support for Mr Westlake's capitalisation rate of 18%. It provides more support for Mr Gould's rate of 14.5%.
In fact, none of Mr Westlake's sales supports 18%. However, he reasoned that with the noise and sound fencing and the possible change of focus to permanent residents, the Central Tourist Park after resumption may be approaching the lower end of the market, of which he thought the Mackay Harbour Caravan Park was an example. He expressed the view that the Mackay Harbour Caravan Park could have a capitalisation rate as high as 22%. But the evidence lends no support to his conclusion.
The Mackay Harbour Caravan Park was one of Mr Gould's sales. It sold in July 1997 for $900,000, has an area of 5.0957 ha, is a park of 100 sites, with a net profit of $130,000, showing $9,000 per site and a yield of 14.4%. Mr Gould described the park as an older park, targeting permanent residents. It is one of the Mackay caravan park sales which lends support to Mr Gould's after resumption capitalisation rate of 14.5%.
Both valuers have approached the issue on the basis of what a hypothetical prudent purchaser would have paid for the park after resumption. Because of the uncertainty as to the impact of the resumption, Mr Westlake was of the view that a prudent purchaser would adopt a fairly pessimistic approach and would require a capitalisation rate of 18%. On the other hand, Mr Gould felt that there were reasons why a purchaser could be optimistic. However, he felt that a purchaser of the park after the resumption would use the uncertainty, particularly of the impact of the changed traffic flow on Malcomson Street, to negotiate a lower price based on a slightly higher capitalisation rate.
In my view, the evidence indicates that Mr Westlake's approach is too pessimistic. While there will no doubt be a greater level of noise at the rear of the park when the road is constructed, Mr Kamst was of the opinion that with a noise barrier constructed near the road alignment, the noise will be within acceptable limits. Indeed, his projections indicate there will be an overall lessening of noise over the whole park because of the diversion of heavy traffic from Malcomson Street.
I accept that the noise barrier will have some impact on the visual amenity of the park, but not to the extent anticipated by Mr Westlake. I accept also that the most attractive feature of the Central Tourist Park is its budget tariff and that need not change. Furthermore, even if the focus changes from tourists to permanent residents, with appropriate management techniques, the evidence indicates that there may not be any reduction in income.
However, notwithstanding this analysis of the likely effects of the resumption, there remain uncertainties which would have some impact on the reasoning of a potential purchaser of the Central Tourist Park after the resumption. The adjustment in capitalisation rates from 14% before resumption to 14.5% after resumption for a net profit of $350,000 per annum results in a reduction in the value of the park of about 4%. However, an adjustment from 13% before resumption to 18% after resumption, results in a reduction in value of about 29%. Based on the evidence in this case, I consider that a reduction in the after valuation of nearly 30% is excessive.
On the other hand, I am of the view that because of the uncertainties of the after situation, a prudent purchaser would require a yield of greater than 14.5%. I propose to adopt 15.5% which on a net return of $350,000 per annum amounts to an "after" valuation of $2,258,000. The difference between the "before" valuation of $2,500,000 and the "after" valuation of $2,258,000, results in an assessment of compensation of $242,000.

The Value of the Resumed Land

Mr Westlake has assessed the valuation of the resumed land as a separate exercise at $445,000. Mr Gould considered that the land had no value.
Mr Westlake's analysis of the occupancy figures indicated that the park averaged an occupancy of between 50% and 60% and rarely exceeded 90%, except in peak holiday season. However, Mr Westlake thought that expenditure on developing the extra 50 sites could be justified if the same occupancy could be achieved for the extra sites. He reasoned that such occupancy could be achieved by putting the higher yielding villas or cabins on those sites. Furthermore, costs of development would be minimised as Mr Haber could fill the land more cheaply than at the normal market rate.
However, the evidence of Mr Gould and Mr Norling casts doubt on the commercial viability of expanding the park. Based on the occupancy figures, additional caravan park sites would be fully occupied only in peak times. For the rest of the year they could not be justified. Even if higher yielding villas and cabins would attract more tourists, they could be accommodated within the existing caravan sites. The logic of Mr Norling's reasoning is undeniable, any additional revenue would have to be weighed against the cost of developing the new sites. While Mr Westlake has estimated the cost of development of the rear land in the hands of Mr Haber, he admits that he has not carried out a cost/benefit exercise.
I cannot accept the method of valuation adopted by Mr Westlake to arrive at the value of the resumed land. It is made on the assumption that the developed sites would have a value of $12,410 per site to show a developed value of $620,500. This figure is not derived from sales. Mr Westlake explained that it was simply derived from his before resumption valuation of $2,482,000, divided by 200 sites. Therefore, the value per site is not simply the land component, as claimed by Mr Westlake, but includes a proportion of the value of the villas and cabins. The before resumption valuation is derived from the net profit resulting from a gross income, a large proportion of which comes from the villas and cabins.
Furthermore, the calculation of development costs can be criticised on at least two counts. First, the cost of fill and consolidation is not based on market rates, but on the cost to Mr Haber. Mr Westlake explains this away by saying that his approach takes into account the added value of the land to Mr Haber. This is also his explanation for the second criticism, that there has been no allowance for profit and risk. He reasons that there would be no risk if the development was undertaken by Mr Haber, who has successfully developed the other 200 sites.
In my view, any such development exercise must allow for profit and risk. The hypothetical development of the land for 50 caravan park sites is analogous to a hypothetical subdivision of in globo land with subdivisional potential. The requirement to allow for the risk of realisation and the profit which a developer would require from such an enterprise, was confirmed by the High Court in Turner & Anor v The Minister of Public Instruction (1956) 95 CLR 245. In addition, the development costs must take into account the cost of constructing a number of villas or cabins on the land, otherwise the rate of $12,410 per site must be adjusted to reflect the return from ordinary caravan sites.
Therefore, I have come to the conclusion that I can place no reliance on Mr Westlake's assessment of value of the resumed land. Not only does it assume that there is approval in place for the additional 50 sites, but it assumes that demand would be such as to return the same amount per site as the 200 site caravan park. The evidence of both Mr Gould and Mr Norling indicates that this would be most unlikely. Even if Mr Haber was to construct higher yielding villas and cabins on that land, it would be necessary to demonstrate the viability of such development with a cost/benefit analysis, an exercise which Mr Westlake has not undertaken. However, the rough hypothetical development exercises undertaken by Mr Gould, indicate that such development would not be commercially viable.
Despite his assertion that the resumed land was his most valuable land, considered objectively the evidence indicates that Mr Haber must have had doubts about the viability of developing that land. For more than 20 years he found it more advantageous to put his money into other ventures. He had the opportunity and the funds to undertake the development, but he chose not to do so.

The Right to Develop the Resumed Land

The whole foundation of Mr Westlake's assessment of the value of the resumed land is the assumption that the claimant had the legal right to develop that land. Mr Gould regards such a right as immaterial, because he considers any such development would be uneconomic. However, quite apart from the commercial viability, the respondent contends that such development would not be allowed on the low-lying, tidal mangrove land. It is therefore necessary to consider the claimant's argument that at the date of resumption he had the legal right to develop the resumed land.
It is common ground that in 1975 the claimant was granted approval by the Pioneer Shire Council for the development of a caravan park comprising 250 sites. Although not all documents relating to the matter were able to be located, following requests by the parties as to the status of the approvals, on 14 June 2002, the Mackay City Council issued a full planning and development certificate. Paragraph 7 of the certificate states:
"The rezoning approval for the caravan park has not been found. As such Council is unable to determine for certain whether or not the conditions of approval have been fulfilled.
However, there is sufficient evidence to suggest the following;-
· Filling, drainage, street works and sewerage works were required by Council for the development of the caravan park. The works details were approved by Council and undertaken in stages;
· The whole of the land approved for the caravan park has not yet been developed."
The claimant contends that the certificate is proof that the approval is still current and the caravan park as approved in 1975 has not yet been completed, there being no time limits on that approval. Therefore, the claimant argues, prior to the resumption development could have continued in accordance with the approval, including the filling of the mangrove area. The claimant further contends that the approval is a right which is protected by s.20 of the Acts Interpretation Act 1954.
On the other hand, the respondent argues that the approval to develop the whole of the claimant's land has been overtaken by subsequent legislation, which renders development of the rear land unlawful. The respondent contends that the claimant would no longer be able to fill the land; under s.51(1)(c) of the Fisheries Act 1994, a permit is required to remove, destroy or damage marine plants and the evidence of Ms Couchman is to the effect that it was unlikely that a permit would have been granted; furthermore, under s.126 of the Environmental Protection Act 1994, it is unlawful for a person to cause or allow a contaminant to be placed in a position where it could be reasonably expected to cause serious or material harm or nuisance.

Counsel for the respondent submits that although a statute ought not to be given a retrospective operation where to do so would affect an existing right or obligation (Maxwell v Murphy (1957) 96 CLR 261), or that the repeal or amendment of an Act does not affect a right, privilege or liability acquired, accrued or incurred under the Act (s.20 of the Acts Interpretation Act 1954), in this case it is not a question concerning the repealing or amendment of legislation, but the introduction of new legislation which affects the claimant's right to fill the land.
On the other hand, counsel for the claimant concedes that under s.51(1)(c) of the Fisheries Act 1994 a permit is required to remove, destroy or damage a marine plant. However, it was argued that: at the time the Pioneer Shire Council approved the development of a 250 site caravan park in 1975, the Fisheries Act 1947 was in force. That Act contained no provisions requiring permits to destroy or remove mangroves. The 1957 Act was replaced by the Fisheries Act 1976, which took effect from 1 January 1978. Section 71 of that Act prohibited the destruction of mangroves without a permit. However, no permit was obtained by the claimant and the filling of the current caravan park proceeded on an incremental basis between 1975 and 1980. No action was taken against the claimant and no challenge was made. At the time the Council approved the development it was the sole regulatory body. The approval was valid notwithstanding the 1976 Act, which had no retrospective effect.
The claimant goes on to argue that similarly the Fisheries Act 1994 has no retrospective effect and does not affect the approval which the Council says is still valid. The approval is protected by s.20 of the Acts Interpretation Act. It was granted under the authority of the Local Government Act 1936 and s.20 maintains that approval.
Subsection (2) of s.20 of the Acts Interpretation Act 1954 provides:
"The repeal or amendment of an Act does not -
(a)revive anything not in force or existing at the time the repeal or amendment takes effect; or
(b)affect the previous operation of the Act or anything suffered, done or begun under the Act; or
(c)affect a right, privilege or liability acquired, accrued or incurred under the Act; or
(d)affect a penalty incurred in relation to an offence arising under the Act; or
(e)affect an investigation, proceeding or remedy in relation to a right, privilege, liability or penalty mentioned in paragraph (c) or (d)."

The claimant also relies on Maxwell v Murphy for the general rule that a statute is not retrospective unless there is a clear intention. In that case, Dixon CJ explained at p.267 that:
"The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law has defined by reference to past events."
At p.270, Dixon CJ refers with approval to the summary of the principle by Sloan JA in Dixie v Royal Columbian Hospital (1941) 2 DLR 138 at 139-140:
"... unless the language used plainly manifests in express terms or by clear implication a contrary intention -
(a)A statute divesting vested rights is to be construed as prospective.
(b)A statute, merely procedural, is to be construed as retrospective.
(c)A statute which, while procedural in its character, affects vested rights adversely is to be construed as prospective."
The claimant also referred to the decision of the Land and Environment Court of New South Wales in Perpetual Trustees (Australia) Ltd v Valuer-General (1999) 102 LGERA 324, as providing a useful summary of a number of cases on this issue.
The claimant argues that in the present case the right to clear mangroves has been accrued by past events; that right has been accrued under the planning legislation that led to the approval by the Council; unless the Fisheries Act provides that notwithstanding the planning approval, the claimant must obtain a permit to destroy mangroves, the claimant is entitled to rely on the planning approval to continue the filling of the rear land.
It is clear that the right to fill the land did not arise under the Fisheries Act 1957. It was not until the Act of 1976 took effect on 1 January 1978 that a permit was required to destroy mangroves and by that time most of the 200 site park had been developed. It could well be argued that the filling of the land commenced before the requirement for a permit arose and the provisions of s.20(2) of the Acts Interpretation Act simply makes lawful what would have been otherwise unlawful. (See also Ku-ring-gai Municipal Council v Attorney-General for New South Wales (1957) 99 CLR 251 at 269). I have doubts whether that protection can extend to cover the situation where the filling had been completed, except for occasional loads of fill on the rear land. After a period of over 20 years, could it be claimed that the section extends to protect the right to develop the resumed land, simply because the Council contends that the development approval in respect of that land is still valid?

The "Raid" by Government Officers

Mr Haber gave evidence of what he described as a "raid" on the Central Tourist Park by officers of the Department of Primary Industries and the Department of Environment in April 1998. At the time officers of the two Departments called at the park with a warrant to enter dated 27 April 1998, investigating an alleged offence relating to damaged or destroyed marine plants.
Following their investigation, no prosecution was initiated under the Fisheries Act 1994 for the destruction of mangroves. However, Mr Haber received a letter from the Department of Environment dated 23 September 1998, advising that the Department had considered action under the Environmental Protection Act 1994, but had decided to send an advisory letter rather than prosecute, because the build-up of material had occurred over many years prior to that Act and since Mr Haber had agreed to co-operate in remediation of the site. However, the letter went on to say that it is unlikely that similar leniency will be extended on any future occasion.
Mr Haydon argued that the failure to prosecute by either the Department of Primary Industries or the Department of Environment confirms his argument that the legislation is not retrospective and does not interfere with what is authorised under another Act. On the other hand, Mr Jones argued that the readiness of both authorities to act on any suspected breach of the legislation and the subsequent warning to Mr Haber, indicates that any filling or destruction of mangroves would be prosecuted.
In my view, any prudent purchaser of the land would already have reservations about his ability to carry out further development. Knowledge of the "raid" would serve to increase that uncertainty.

Is the Development Approval still valid?

In my opinion, it is not necessary to decide whether or not the approval is still valid. For the purposes of this case, it is more appropriate to consider what would be the effect on the mind of a prudent purchaser who had been informed of these facts and the competing legal arguments.
To my mind, the test to be applied to ascertain the value of the resumed land is the test of market value defined by the decision of the High Court in Spencer v The Commonwealth (1907) 5 CLR 418. That is, the price that a fully informed prudent purchaser would pay for the land. In my view, a properly informed prudent purchaser would have grave doubts as to whether such development could be undertaken. There must be uncertainty as to whether the planning certificate signed by an officer of the Council is sufficient to override legislation which regulates the development of land. Because of those doubts, a prudent purchaser would pay little for the rear land. In any event, I have found that even if such development was allowed, it would be uneconomic.
However, I am reluctant to hold that the 7,010 m² of resumed land is totally without value. Quite apart from its potential for development for caravan sites, Mr Haber had raised the possibility of other uses for the land, such as for eco-tourism and recreation, with boardwalks through the mangroves which may be permitted provided the mangroves were not damaged. With the resumption of the rear land, the potential for any such uses is eliminated.
Although it could be argued that such uses are no more than fanciful dreams by Mr Haber and there can be no compensation for disappointed hopes, Mr Westlake expressed the view that the land could have a value of $200,000 for such an alternative use. However, I think that a prudent purchaser would be prepared to pay only a nominal value for the rear land against the possibility of being able to make some use of it in the future. As Mr Haydon pointed out, the test in Spencer envisages an informed prudent vendor as well as an informed prudent purchaser, and the price at which the land would be sold is not unaffected by the price which such a vendor would be prepared to take for it. Even if such a vendor was convinced that development of the land for caravan sites was uneconomic, it is difficult to envisage that such a vendor would accept that the resumed land had no value at all.
I propose to adopt a nominal value for the resumed land of $20,000. That equates to approximately $3.00 per m² and in my view, that is not an unreasonable amount to attribute to the low-lying mangrove tidal land.

The Redundancy Claim

I turn now to the claimant's head of claim item (c) for the loss caused by the resumption resulting in the redundancy of a proportion of the facilities and infrastructure which were developed to cater for a caravan park of 250 sites. In my view, this claim cannot succeed.
The provisions relating to the assessment of compensation are contained in s.20 of the Acquisition of Land Act which, as mentioned previously, provides for compensation for the value of the land taken, severance and injurious affection to other lands of the claimant, set off by any enhancement in value to the adjoining lands of the claimant by the carrying out of the works or purpose for which the land was taken.
The authorities make clear that the value of the land taken is to be the value of that land to the owner, which incorporates the concept of any special value to the owner: Boland v Yates Property Corporation Pty Ltd (1999) 74 ALJR 209. The concept of compensation has been extended to recognise that disturbance can be awarded as part of the value to the owner in appropriate cases: Commonwealth v Milledge (1953) 90 CLR 157. Although the Acquisition of Land Act makes no provision for a head of claim for disturbance, the Land Appeal Court in Murray v Queensland Electricity Generating Board (1984) 10 QLCR 69, recognised that disturbance is a part of special value to the owner and often separately assessed. In Harvey v Crawley Development Corporation [1957] 1 All ER 504, the Court of Appeal held that compensation is payable for disturbance provided that it is not too remote and is the natural and reasonable consequence of the dispossession of the owner.
Unless the claimant can bring his claim within these recognised heads of claim, then it is not valid. In The Crown v Corbould (1986) 11 QLCR 50 at 56, the Land Appeal Court quoted with approval the words of Lord Parmoor in Sisters of Charity of Rockingham v The King (1922) 2 AC 315, where his Lordship explained that compensation for compulsory acquisition of land is founded in statute:
"Compensation claims are statutory and depend on statutory provisions. No owner of lands expropriated by statute for public purposes is entitled to compensation, either for the value of the land taken, or for damage, on the ground that his land is 'injuriously affected' unless he can establish a statutory right."
The head of claim in the present case is for money thrown away because of expenditure on infrastructure and facilities which the resumption has rendered in excess to requirements and therefore redundant. The claimant contends that he should be compensated for that redundancy.
All the facilities and infrastructure which are alleged to be redundant are located on the retained land. Before the resumption, the facilities and infrastructure of the Central Tourist Park formed part of the value of that enterprise. Mr Westlake valued that land at its market value as at the date of resumption. In other words, he valued it on the basis of what a hypothetical prudent purchaser would have paid for the land, including all the improvements, infrastructure and facilities on that land.
Significantly, this head of claim was not mentioned by Mr Westlake. It was not suggested by him that a prudent purchaser would pay any more for the land because it had improvements which were in excess of requirements. Mr Westlake's assessment of the value of the resumed land was carried out as a separate exercise. His before resumption valuation of the 200 site caravan park was a standalone exercise based on the market value of that business.
Similarly, Mr Westlake did not mention the over-capacity of the improvements in making his after resumption valuation. Mr Gould, for the respondent, adopted the same "before and after" approach to the assessment of compensation and did not mention the over-capacity of the improvements in either his "before" or "after" valuations. In the event, I accepted the before resumption valuation of $2,500,000 assessed by Mr Gould and agreed to by Mr Westlake. However, I did not adopt either of their "after" valuations.
If there was any validity in this head of claim it would be incorporated in the before resumption valuation. Clearly, it is not. In my view, no prudent purchaser would pay an additional amount because the caravan park had improvements which were surplus to requirements. It was common ground that caravan parks are bought and sold on the basis of cash flow. The quality of the improvements is one of the elements which generates that cash flow.
In this case the claimant puts forward the redundancy factor as a separate head of claim, but as such it has no substance and therefore cannot be allowed.

The Claim for Special Value and Solatium

The claimant claims these two items as a separate head of claim, item (f). In the amended claim for compensation (Exhibit 29) they are explained as follows:
"The caravan park has special value to the applicant. The caravan park is not for sale and the applicant intends to keep it for his children and grandchildren. The land has been in the applicant's family for over 30 years and was being developed progressively as a caravan park for retention for future generations. Much of the works in building up the park were personally carried out by the applicant and his family, which involved much sacrifice to the applicant and his family. The resumption has halted that plan and has caused much stress and injury to the applicant and the applicant claims $195,000 as special value of the resumed land to him. This part of the claim includes solatium."
As mentioned earlier, Mr Westlake's assessment of the value of the resumed land included special value to the claimant based on his ability to fill the land at less than commercial rates. For reasons already explained, I have found that the resumed land had only a nominal value.
In his argument in support of this head of claim, Mr Haydon contends that three valuation approaches need to be examined; special value to the owner, disturbance (there being an overlap between these types of claim in the present case); and solatium. He refers to the individual judgments of the High Court in Boland v Yates Property Corporation Pty Ltd, noting that Callinan J discusses disturbance and special value to the owner together because of the similarity between them. He also notes that there is general agreement in that case that principles of market value derive from Spencer v The Commonwealth and of special value from the Privy Council in Pastoral Finance Association Ltd v The Minister [1914] AC 1083. However, Callinan J considers that while Spencer will cover most situations because it assumes the dispossessed owner to be a willing vendor, it does not contemplate one who would lightly relinquish a property which had a particular value to that owner for less than that value [354].
Mr Haydon notes that Gleeson CJ in Boland v Yates refers to the tension between market value and special value; that special value to the owner directs attention to the perspective of the vendor; while the similarity of the concept of disturbance adopted by the High Court in The Commonwealth v Milledge (1953) 90 CLR 157 and of special value by the Privy Council in Pastoral Finance was acknowledged by Callinan J.
Mr Haydon refers to the principles established by the Privy Council in Director of Buildings and Lands v Shun Fung Ironworks Ltd [1995] 2 AC 111, in relation to special value to the owner. Of relevance to this case are the following extracts:
"In practice it is customary and convenient to assess the value of the land and the disturbance loss separately, but strictly in law these are no more than two inseparable elements of a single whole in that together they make up the value of the land to the owner." (at p.125)
"... the basic principle that compensation is payable for the value to the claimant of the land in question. When determining that value the tribunal is in effect assessing how much a prudent person in the position of the claimant would himself have been prepared to give for the land sooner than lose it: see Pastoral Finance Association Ltd v The Minister [1914] AC 1083. He would be willing to pay more than others, because retention of the site would save him the expense of moving, and the inconvenience of temporary disturbance and also the possible loss of customers." (at pp.127-128)

Mr Haydon concludes with extracts from the judgment of the High Court in The Commonwealth v Reeve (1949) 78 CLR 410, where Latham CJ said at 418:
"The value of the land to the owner is what he can get for it. He can never get for it more than other people will give for it. But what other people will give for it is not unaffected by what the owner is prepared to take for it, ...."

and from the judgment of Dixon J at 428:
"Ultimately, what is to be found is the value to the owner of the interest taken. All the actual and potential advantages to the proprietor of the interest enter into that value to him."

However, it is contended in this case that the special value to the claimant lies in his ability to fill the resumed land at less than commercial rates. In Boland v Yates at [80], Gleeson CJ referred with approval to the judgment of Bray CJ in Arkaba Holdings Ltd v Commissioner of Highways [1970] SASR 94, where the following passage appears at 100:
"... But this special value must in my view arise from some attribute of the land, some use made or to be made of it or advantage derived or to be derived from it, which is peculiar to the claimant and would not exist in the case of the abstract hypothetical purchaser. Would a prudent man in the position of the claimant have been willing to give more for his land than the market value rather than fail to obtain it or regain it if he had been momentarily deprived of it?"

Furthermore, Callinan J said at [292]:
"(Special value) arises in circumstances in which there is a conjunction of some special factor relating to the land and a capacity on the part of the owner exclusively or perhaps almost exclusively to exploit it ...There will in practice be few cases in which a property does have a special value for a particular owner. Obviously neither sentiment nor a long attachment to it will suffice. The special quality must be a quality that has an economic significance to the owner."

Mr Haydon refers to Sri Raja Vyricherla Narayana Gajapatiraju Bahadur Garu v. Revenue Divisional Officer, Vizagapatam [1939] AC 302, as authority for the proposition that special value must be some attribute in the land. In that case it was said:
"The land, for instance, may have for the vendor a sentimental value far in excess of its 'market value'. But the compensation must not be increased by reason of any such consideration."
It is difficult to see in the present case how the ability to fill the land at less than the market rate is not a matter which is clearly personal to the claimant. It has been well established that special value to the owner excludes those advantages and attributes which are personal to the owner: see Thirty-Fourth Philgram Pty Ltd v. The Crown (1992) 14 QLCR 13 and the cases discussed therein at 37-41. For there to be special value to the owner there must be an attribute of the land and not of the owner. Provided that it was not unlawful to do so, the resumed land could have been developed by an incoming purchaser who would have adopted the most cost effective technique to fill the land. In my view, there is no special value to the owner in this case.
There is a further suggestion that the resumed land had special value because it contributed to the parklike setting and the open, spacious amenity of the caravan park. In my view, this was not special value of the resumed land, but something which contributed to the before resumption value of the park, while the absence of those attributes would be reflected in the after resumption value. It cannot be the subject of a separate assessment.

The Solatium Claim

Mr Haydon contends that the claim for solatium is capable of being part of special value and/or disturbance. Although the Acquisition of Land Act 1967 makes no provision for the payment of solatium, Mr Haydon submits that nor does the Act make provision for compensation for professional fees associated with preparation of a claim, but it is well established that compensation is payable in respect of them as disturbance. He suggests that solatium is capable of fitting into the same concept of disturbance; that the categories of disturbance are not closed, although it must be shown that the claim is not too remote and that it is the natural and reasonable consequence of the resumption: Harvey v. Crawley Development Corporation.
Mr Haydon submits that further, and in the alternative, because of the components of special value to Mr Haber, together with the protracted period of uncertainty with respect to the road construction proceeding and the interruption to negotiations, an element of solatium is not too remote and becomes natural and reasonable consequences of this resumption, so that it is capable of forming part of the special value.

Mr Haydon quotes extensively from "Land Acquisition" by Douglas Brown (4th Edition) 1996, dealing with the heading "Solatium" at [3.35]. There the author discusses whether in addition to the other heads of compensation, the dispossessed owner is entitled to an additional sum for hardship, inconvenience, trauma or unspecified loss caused by the resumption; in other words, a solatium. Brown refers to the underlying scheme of compensation as seeking to ensure that the dispossessed landowner is no worse off or better off as a result of their resumption and an award of solatium is a recognition that the amount of compensation may not have covered every foreseeable loss as he puts it, "It is a kind of sweetener, reflecting some kind of apology."
According to Brown, the Courts used to imply a right for such payment in appropriate circumstances: Leslie v Board of Lands and Works (1876) 2 VLR(L) 21. However, with the introduction of comprehensive and detailed provisions in respect of compensation, in the absence of express provision, courts will be unlikely to imply such a provision: Geita Sebea v Territory of Papua (1941) 67 CLR 544; Re Wilson and State Electricity Commission [1921] VLR 459.
Mr Haydon quotes further from Brown at [3.24], who makes the following points: in some cases special value is closely related to disturbance and care must be taken that compensation for special value is not duplicated; the value of the land does not include disturbance, it is separate; no buyer in the open market would pay for disturbance; special value and disturbance may differ and the claimant is entitled to whichever is the greater; they are both doctrines which have been grafted onto the statutory compensation provisions. Mr Haydon concludes by submitting that the reference in s.20(1) of the Acquisition of Land Act to the value of the land taken, is wide enough to include special value and disturbance and also the concept of solatium.
In response to Mr Haydon's argument, Mr Jones submits that the right to compensation is statutory and there is no right to solatium to be found in s.20 of the Queensland Acquisition of Land Act. Although compensation is often awarded for disturbance, it is not a separate subject of compensation but is bound up in the value of land to the owner: Boland v Yates.
In the present case, the claimant has linked a claim for solatium to a claim for special value totalling $195,000. The claim seems to be grounded on the length of time the property has been owned by the claimant, the time and effort he has put into the park, the frustration of his plans for the future and the stress and injury which the resumption has caused to the claimant.
Mr Jones submits that compensation for these matters will only lie if they can be categorised as falling under the headings of "disturbance" or "special value". However, these matters come within neither category. As Callinan J said in Boland v Yates at [292], there will be few cases where there is special value for a particular owner and that neither sentiment nor a long attachment to the land amount to special value; there must be a quality that has economic significance to the owner.
I agree with Mr Jones' submissions that special value must relate to a quality that is not personal to the owner, but a quality of the land itself in the hands of the owner. In my view, none of the elements of this claim fall under the headings of "disturbance" and/or "special value".
The Queensland Acquisition of Land Act makes no provision for the payment of a solatium. The authorities make it clear that in the absence of such a provision no award for solatium can be made. Mr Haydon has attempted to link solatium to special value and disturbance, but this attempt must fail. Special value and disturbance are simply aspects of the value of the resumed land to the owner. Solatium in money paid over and above compensation as solace for the fact that the claimant's land has been taken compulsorily and to cover inconvenience and distress and injured feelings because of the compulsory nature of the resumption.
It seems that in some early cases, such as Leslie v Board of Land and Works, in assessing compensation Courts added a percentage because of the compulsory nature of the taking of the land. Later, however, when an attempt was made to apply that decision in Re Wilson and State Electricity Commission of Victoria [1921] VLR 459 by adding an amount to the value of the land for that purpose, the Supreme Court of Victoria held that there was no power, discretionary or otherwise, to allow a further amount for the compulsory taking. Similarly, a claim for 10% in addition to compensation assessed was rejected by the High Court in the Geita Sebea case, at p.555 by Starke J and at p.559 by Williams J.
Acquisition statutes in some other jurisdictions in Australia now make specific provision for an award of solatium, either as of right, or discretionary. However, no provision has been made in the Queensland statute. It is abundantly clear that unless there is specific provision for the payment of an additional amount by way of solatium, then it cannot be allowed.
For these reasons, I have concluded that the claimant's claim for $195,000 for special value and solatium must fail.

The Proposal to return some land to the Claimant

Prior to the resumption, there was correspondence between the claimant and the respondent regarding the return of a strip of land approximately 20 metres wide, beyond the proposed resumption boundary. Various negotiations occurred, culminating in a letter dated 10 September 1998 from the respondent confirming that the areas between the resumption line and a line marked on an attached plan will be transferred back to the claimant at no cost.
The respondent argues that this is a completed agreement and should be taken into account in assessing compensation. On the other hand, the claimant argues that this is not a completed agreement and any purported agreement is no longer of any force and effect as the whole 7,010 m² of land has been resumed, and the Court should give no weight to the proposed agreement.
In my view, once the land is resumed from the claimant, that is an end of any negotiations between the claimant and the respondent regarding the area to be taken. Once the land is resumed, the estate or interest of the claimant in that land is converted into a right to claim compensation: s.12(5) of the Acquisition of Land Act. Once the claim is referred to the Land Court, it is then the responsibility of the Court to assess compensation in respect of the land that was taken, not in accordance with some earlier negotiations about the area to be taken. There are provisions in the Acquisition of Land Act for the revesting of land in the dispossessed owner, either before or after the taking of the land (s.16 and s.17), or the sale of all or part of the land to the former owner if the land is no longer required (s.41).
In the circumstances, I can place no weight on the purported agreement and must assess compensation in respect of the land that was resumed by a proclamation on 19 February 1999.

Disturbance

In this case the parties have agreed that an amount of $11,000 should be paid by way of disturbance for legal and other professional fees incurred in the preparation of the claim for compensation. The parties also agreed that the amount includes interest.

Determination of Compensation

In accordance with my findings, I have concluded that compensation should be awarded as follows:
Value of land taken  $20,000
Loss in value of claimant's other land  $242,000
Disturbance (including interest)  $11,000
Total$273,000

Interest

Section 28 of the Acquisition of Land Act 1967 gives this Court the discretion to order that interest be paid upon the amount of compensation determined by it. In this case there is no reason why the Court should not follow its usual practice and award interest.

Orders
1.Compensation is determined at Two Hundred and Seventy-three Thousand Dollars ($273,000).

2.I order that the respondent pay interest at the rate of 6 per cent per annum on the sum of Two Hundred and Sixty-two Thousand Dollars ($262,000) from the date of resumption up to the day immediately preceding the date upon which payment of compensation is made.

JJ TRICKETT
PRESIDENT OF THE LAND COURT

CITATION:	Haber v Department of Main Roads [2003] QLC 0083
PARTIES:	John Kevin Peter Haber (claimant)
v.
Chief Executive, Department of Main Roads (respondent)
FILE NO:	A2001/0709
DIVISION:	Land Court of Queensland
PROCEEDING:	Claim for compensation consequent upon the resumption by the Chief Executive, Department of Main Roads as constructing authority for the State of Queensland, of areas totalling 7010 square metres in the Parish of Bassett, being part of Lot 2 on CPM 9125 and parts of Lots 1 to 4 on RP 714637, for future road requirement purposes under the Acquisition of Land Act 1967 and the Transport Planning and Coordination Act 1994
DELIVERED ON:	28 November 2003
DELIVERED AT:	Brisbane
HEARD AT:	Mackay
MEMBER:	Mr JJ Trickett, President
ORDERS:	1. Compensation is assessed at Two Hundred and Seventy-three Thousand Dollars ($273,000). 2. The respondent pay to the claimant interest at the rate of 6 per cent per annum on the sum of Two Hundred and Sixty-two Thousand Dollars ($262,000) from the date of resumption up to the day immediately preceding the date upon which payment of compensation is made.
CATCHWORDS:	Resumption - Valuation - Land resumed for future road purposes - Principles of valuation - Highest and best use of resumed land - Undeveloped mangrove land at rear of caravan park - Acquisition of Land Act 1967. Valuation - Method of valuation of caravan park - Before and after assessment - Capitalisation of net returns - Comparison with sales of caravan parks - Potential for development of resumed land. Valuation - Commercial viability of development - Status of development approval - Special value - Disturbance - Solatium.
APPEARANCES:	Mr JJ Haydon for the claimant Mr RS Jones for the respondent
SOLICITORS:	Grasso Searles Romano, for the claimant Crown Solicitor, Crown Law, for the respondent