Hammercall Pty Ltd v Chief Executive, Department of Main Roads

[2000] QLC 57

LAND COURT,

BRISBANE

21 SEPTEMBER 2000

Re:     Claim for Compensation -
  Resumption for Transport purposes -
  Acquisition of Land Act 1967 -
  (A98-13).

Hammercall Pty Ltd
v.
Chief Executive, Department of Main Roads

J U D G M E N T

Background:
This is a claim for compensation for lands resumed under the provisions of the Acquisition of Land Act 1967 (the Act). By Proclamation in the Queensland Government Gazette of 24 November 1995, the Chief Executive, Department of Transport (now Department of Main Roads), (the respondent), resumed land of area of about 1.924 hectares for future road requirement purposes, being part of Lot 76 on RP 215311, Parish of Mudgeeraba.
At the date of the proclamation on 24 November 1995, the registered proprietor of the subject land was Hammercall Pty Ltd (the claimant). The date of 24 November 1995, then becomes the date at which compensation is to be assessed.

The Claim:
           By Notice of Intention to Resume of 25 July 1995, the respondent issued notice to the claimant seeking written objections to the proposed resumption, and signalling a willingness to negotiate an appropriate settlement, or failing agreement, to treat as to determination of compensation to be paid and all consequential matters. The land was resumed for the purpose of construction of a road between Burleigh Connection Road and the Pacific Highway.
           On 11 May 1998, a claim for compensation dated 11 November 1997, was lodged with the registrar of the Land Court on behalf of the claimant seeking resolution of the claim as follows:
1.        Loss of Land  =                  $1,200,000
2.        Disturbance
·Costs for construction of Andrews
Interchange western roundabout
ramp extension  =                  $   203,300
·Engineering costs in connection
with design and documentation
of extension of Bermuda Street
and service road  =                  $   104,500
·Engineering costs in preparation
of plan and presenting claim                 =                  $     53,960
·Legal fees on negotiations and
submitting claim  =                  $      5,000
·Valuation fees for submission
of claim  =                  $      5,000

TOTAL = $1,571,760

At the court callover on 1 December 1998, an application for adjournment was agreed to the next callover by the Court. At a subsequent callover on 29 November 1999, it was agreed for a hearing of the matter in April 2000, and for an order of the Court to issue for an exchange of all witness statements not later than 21 days prior to the hearing. On 6 January 2000, the Court established that the hearing would commence on 10 April 2000, and for an exchange to occur by 20 March 2000. By agreement with the parties, the exchange of statements was deferred until 27 March 2000. The hearing commenced on 10 April 2000.
At commencement of the hearing, two subpoenas of 7 April 2000 were challenged by the claimant. The Court ruled on the relevance of those subpoenas in a separate decision issued on 11 April 2000. With the agreement of both parties, a joint inspection of the subject land, and the relevant sales, was undertaken.
           During the hearing an amended claim for compensation was submitted, and following some corrections of errors, the claim was further amended as follows:
·    Land  =                  $   790,000
·    Costs for construction of Andrews
Interchange western roundabout
ramp extension  =                  $   203,300

· Engineering costs in connection
with design and documentation
of extension of Bermuda Street
and service road = $ 104,500

· Engineering costs in preparation
of plans and presenting claim for compensation
up to date of preparation
of claim for compensation = $ 53,960

· Legal fees on submitting claim for
compensation = $ 2,460

· Valuation fees for submission of claim
for compensation = $ 5,000

TOTAL = $1,159,220

During the hearing both parties agreed to the quantum of the legal fees ($2,460) and the valuation fees ($5,000). Following a revision of the engineering costs for the connection road, those were reduced from $104,500 to $71,000, and the total claimed to $1,125,720.
Because of enhancement, the respondent contends that compensation should be determined at nil.
Mr B Cronin of counsel appeared for the claimant, instructed by Gall Standfield & Smith, Solicitors. Mr RS Jones of counsel appeared for the respondent, instructed by Crown Law.

The Nature of the Land -
           The subject land (Lot 76) is located adjoining the Pacific Highway in the suburb of Andrews, 3.5 km south-west of Burleigh Heads on the Gold Coast. The land is irregular in shape and had an area of 29.807 hectares prior to the resumption. Lands in the immediate locality of the subject land include a mix of industrial, extractive industry and residential uses. The lands immediately to the north of the Pacific Highway from the subject land consist of the industrial estates of Burleigh Gardens and Burleigh Junction, as well as areas of extractive industry (Boral and M&M Quarries).
           To the east of the subject land is the western portion of Old Burleigh Town Residential Estate; which is a 70 hectare site being developed, by a company related to the claimant, in stages for detached housing. To the west of the subject land there is a 10.8 hectare gravel reserve, and a park and recreation reserve being developed for motor-cross purposes. To the south is Old Coach Road, which runs along a ridge line connecting the West Burleigh Interchange (2.2 km to the east), and Reedy Creek Interchange (2.2 km to the west). To the south of Old Coach Road is the newly developing Kingsmore Integrated Residential Development, which is planned for about 3,000 lots.
           At the date of resumption the subject land had been extensively used for extractive purposes by a related company to the claimant, for filling used on the adjoining Old Burleigh Town Estate, which also had formerly been quarried over the years. The extractive works on the subject land had continued from 1990 until a date after the date of resumption. The site is now a relatively level development, except for a ridge along a strip of land generally along two water mains, which are vested in the Gold Coast City Council (the Council). Those easements are defined as Easement A on RP 140269, and Easement D on RP 805573. The Council has agreed that upon development of the subject land, the water mains may be relocated at the developer's cost, to an alignment parallel to the southern boundary of the subject land. The estimate of cost of relocation of the water mains is $340,000. The remaining surface of the subject land is undulating, and mostly low-lying below the existing levels of the highway, and adjoining lands, which have been filled and levelled. There is a steep rise to the level of Old Coach Road along the ridge line to the south.
           Evidence was given that the level of excavation, over a 100 metre wide corridor across the subject land, had been the subject of concern to the Council, and the respondent, in August 1994. Both the Council and the respondent had requested that no further excavation proceed in that corridor, as the land was indicated for a further extension of Bermuda Street. The extensive nature of the extraction of fill material was demonstrated by contour mapping (Exhibits 33 and 34).

The History of the Site -
The claimant purchased the subject land for $3,200,000 on 22 September 1994, in an unconditional contract from the mortgagee-in-possession exercising power of sale. At the date of sale the company related to the purchaser was an adjoining owner, who also exercised a licence to extract soil from the subject land. While negotiating the sale the claimant was informed that the land would be required in the future for a planned southern extension of Bermuda Street to Old Coach Road. However the claimant believed at that time that direct access would be allowed to that extension of Bermuda Street from the subject land. In that regard the claimant had placed some reliance upon a concept plan proposed for a rezoning application submitted by Keilar Fox & McGhie Pty Ltd, Licensed Surveyors (Exhibit 23).
           Subsequent to purchasing the subject land, detailed engineering investigations disclosed access difficulties for the subject land, and in particular the severance to the west of the proposed future southern extension. Those difficulties subsequently became a major impediment to the development of the subject land and are now fundamental to the current difference between the parties in the current matter.
           Extensive engineering investigations into access problems proceeded between the technical advisers for the claimant and the respondent. However it was not until a meeting of 29 January 1998 that the respondent had agreed to consider a "proposal for a road connection under the future Tallebudgera Connection Road" (Exhibit 29).
           However even at that meeting, Mr Wayne Leong, principal engineer for the respondent, had no recollection of any further proposal plan from the claimant's engineers. Mr Leong notes that the preliminary bulk earthwork plan of the subject land provided in April 1998 (Exhibit 34B), probably reflected as near as he could remember of the matter as it was discussed in January 1998.
           Subsequent to that meeting a facsimile was sent on 13 February 1998 by Mr Leong to the claimant's technical advisers, advising that form of access to the western severance would be acceptable to both the respondent and the council, subject to detailed design. However that preliminary advice was not confirmed by letter until 25 January 2000, in spite of a letter from the claimant's engineering consultants seeking confirmation of the shared arrangements on 21 May 1998.
           Subsequent to the letter of 21 May 1998, there was an exchange of correspondence between the parties (Exhibit 21). However at that time the matter had proceeded as a claim before this Court, and the correspondence was executed through their separate legal channels. In spite of two letters by the claimant's legal advisers seeking confirmation of whether access would be permitted (19 July 1999 and 19 November 1999), the respondent did not respond formally until 25 January 2000, confirming in principle the intent of the facsimile of 13 February 1998.
           However the letter of 20 January 2000 also noted:
"The District Office also reports that the developer is to dedicate the land for the Tallebudgera Connection Road at no cost to Council in accordance with the provisions of terms associated with earlier rezonings of the land. "

In seeking to understand reasons for delays in response by the respondent, it is noted that the matter of compensation due as a consequence of access problems had by then become an issue. In an internal memorandum of 25 August 1999 (Exhibit 38), the respondent's Director (Property Services), drew attention to the need to consider earlier conditions attaching to earlier re-zonings of the subject land in 1990. Those matters are discussed later.
In that memorandum the Director also counselled on the claimant's behalf for early directions in the matter; but noted that the claimant had two options for access to the subject land. One option was to seek access to the proposed new Andrews Interchange, with associated contributions to the works by the claimant. Secondly, he could up-grade Old Coach Road. Main Roads' staff was already preparing cost estimates for the latter approach. In view of those internal consultations, I do not accept Mr Leong's opinion that the matter had unfortunately been overlooked (Transcript 372).

Land Use Planning Impacts -
           Town planning evidence was given by Peter Bell for the claimant, and Michael C Challoner for the respondent, both of whom are consultant town planners of extensive experience. The subject land is impacted by the Albert Shire Planning Scheme (1995) as follows:
           (A)      Strategic Planning - Map 5 (gazetted 24 February 1995).
           The subject land is designated as "Industry". The Strategic Plan defines "industry" as areas for the development of manufacturing, service industry, warehousing, and other storage areas; but not to include heavy manufacturing, noxious, hazardous or offensive industries except in the Yatala/Stapleton Industrial Area. High environmental standards are to be maintained, and corridors of open space are to be provided (clause 1.4.13.1).
           (B)      Transport Objectives.
           These are to provide an efficient road network within the shire, and to include:
(i)arterial, sub-arterial or collector roads, and extractive haulage routes. A progressive road network map to be prepared in conjunction with Queensland Transport (now Main Roads).
(ii)the Pacific Highway is the principal transport link, which will be eventually upgraded, together with linkages to other roads. Liaison with Queensland Transport will be maintained and
(iii)arterial, sub-arterial and collector roads will continue to be upgraded.
(iv)Council will seek representation for Queensland Transport in the design of future transport networks.
(v)developers will be required to refer their planning concepts to Queensland Transport, to identify the need for future transport corridors that may need to be incorporated into their proposals (sub-clause 1.4.19).
(C)      Zoning -
           The subject land is included in the Commercial Industry Zone, which is designed for local and small-scale industrial and commercial enterprises within easy reach of residential areas, or as a buffer to general industry areas. The development requirements of that zoning are contained in section 7.6 of the planning scheme.
           Since 1982, the subject land was seen to be for industrial purposes. Prior to the introduction of the 1995 Planning Scheme, the subject land had been included partly in the Light Industry Zone, and partly in the Special Business Zone, following two successful re-zoning applications by the previous owner (Navtone Pty Ltd) in 1989, and 1990. Prior to 1990 the subject land was included in the Future Urban Zone. The western part of the land was re-zoned by Executive Council to Light Industry Zone on 29 November 1990; and the eastern balance of the land, following a further application to rezone, was rezoned to Special Business Zone on 21 November 1990.
Both of those zoning approval recommendations by the Albert Shire Council included 20 similar conditions relating to the rezoning approvals, including in particular the following conditions for the Light Industry approval on 26 February 1990:
- 3 - Provision of the land for the extension of Bermuda Street at no cost to Council.
- 20- Construction of Old Coach Road to Bridgman Drive, or alternatively construction of access to the Pacific Highway to the Main Roads Department requirements at the location of the proposed interchange and construction of Old Coach Road only along the frontage of the site to Council standards.
Particular relevant conditions in the Special Business rezoning approval of 29 June 1990 included:
- 5 - A building set-back of 10 metres to be fully landscaped to all properties that have frontage to proposed roadways i.e. properties with exposure to Bermuda Street and any roadworks associated with on/off ramps to Pacific Highway.
- 15 - The observance of the requirements of the Main Roads Department and other relevant Government and Statutory Authorities at full cost to the applicant.
- 18 - Dedication of land to the satisfaction of the Shire Engineer for the construction of the Bermuda Street extension.
- 19 - Dedication of a 20 metre buffer strip to Council between the proposed development and the proposed Special Residential. This buffer is to be fully landscaped to the satisfaction of Council.
While the rezoning recommendation approvals by the Council proceeded to formal gazettal by Executive Council, there was no formal agreement finalised between Navtone and the Council in relation to the approval conditions. Accordingly it is agreed by both parties that the conditions of those approvals did not run with the land when it was purchased by the claimant in September 1994.
It is also agreed that it is the Executive Council which affects the change in zoning, usually on the recommendation of the relevant Minister and following a recommendation from the local council. In this particular case there was no evidence that the special conditions proposed by the Albert Shire Council had been referred to in the Executive Council approval, and the claimant would appear to be free to use the land in accordance with its current zoning.
However there is divergence between the parties in respect of what weight should be placed upon the Council approval conditions, particularly the requirement for the dedication of land for the extension of Bermuda Street at no cost to the Council. Mr Bell argues that:
(1)The planning of the southern extension of Bermuda Street from the Andrews interchange in 1990, was a Department of Main Roads initiative, and was agreed in consultation with Council.
(2)There were no detailed design requirements associated with Council Condition 3.
(3)There was no nexus between the need to provide land for a major road and the rezoning and development proposals by the Keilar Fox & McGhie Pty Ltd plan (Exhibit 23).
(4)The rezoning approvals preceded the Planning and Environment Act 1991, and under the then current Local Government Act, the conditions did not run with the land unless secured by a deed between the applicant and the Council. The claimant subsequently acquired the land, and there was no contractual nexus created. (See Giant Supermarkets Properties Limited v. Albert Shire Council (1993) QPLR 229, per Quirk DCJ.)
(5)The 1990 approvals were for rezoning to Light Industry and Special Business, neither of which now exists. The new zone of Commercial Industry was created by the 1995 Town Plan, and certain land uses in the Special Business zone (i.e. shops), were prohibited in the Light Industry zone, and vice versa.
Mr Bell therefore argues that the 1995 Town Plan has changed the land use approval for the site, so that the 1990 approvals are no longer relevant to the current use of the land. That type of situation was discussed by the learned Member in Yalgan Investments Pty Ltd v. Council of the Shire of Albert (1997-98) 17 QLCR 331, at 343.
On the basis of the above Mr Bell argues that the current owners (the claimant) could not be required to comply with the conditions required in 1990. Mr Bell argues that it is not appropriate for Council to require the dedication as a consequence of rezoning.
Mr Challoner concedes that the rezoning conditions were not formalised by deed agreement between Navtone Pty Ltd and the Council. However he argues that any prudent purchaser of the subject land in 1994 would have been aware of those former rezoning conditions, and would have expected those conditions to have been maintained at a subsequent development and subdivisional stage, once development proceeded.
In support of that conclusion Mr Challoner refers to recent examples in the Redlands Shire where conditions imposed at the subdivision stage mirrored conditions imposed at the rezoning stage. Mr Challoner also relies upon a decision of this Court in Shellray Pty Ltd v. Chief Executive, Department of Main Roads (A98-27) 29 September 1999, to be reported, where a similar scenario was upheld. Mr Leong also confirms that it is the respondent's practice, where future road reserves are required, to seek to obtain that land as part of the rezoning or subdivisional process, rather than through resumption.
As the road corridor would not be required until demand was further generated, the respondent saw no need to require that additional land when it resumed the land for the Andrews Interchange. Mr Leong concedes that it was likely that demand for developed lots on the subject land would precede the need to build the Bermuda Street southern extension from the Andrews Interchange. It was therefore likely that the needs of the claimant to proceed, would precede the need for the respondent to develop the new major road. This really is at the heart of the current matter. Mr Beard also confirms that scenario, arguing that strategy was entirely consistent with the Departmental policy.
There had been no subdivisional applications lodged for the subject land prior to the resumption, or to the current time.

(5.1) Planning Nexus -
There is difference between the parties in respect of whether the nexus between the need for the dedication of the reserve for the southern extension from the Andrews Interchange to Old Coach Road, and the development proposal for the subject land, meets the test of being reasonable and relevant as required under s.6.1(c) of the Local Government Planning and Environment Act 1990, current at the date of resumption. That Act states in respect of unlawful conditions:

"6.1(1) Where an application is made to a local government - the local government is not to -

(c)subject its approval of that application to a condition that is not relevant or reasonably required in respect of the proposal to which the application relates, notwithstanding the provisions of a planning scheme; "

Mr Bell argues that, in his opinion, the need for the southern extension reservation would not be relevant, or a reasonable condition to impose upon the development, as proposed in the rezoning application. (Exhibit 23 indicates a collector road width of about 20 metres.) Mr Bell believes that an acceptable test of reasonableness or relevance would be where a "development actually stood to gain from the road dedication, or the provision of a through road or provision of a higher standard road, then that would normally be something a developer would weigh up and make a commercial judgment as to whether that was an acceptable requirement or not" (Transcript p.71).
           Mr Bell further notes that the test for reasonableness, in his opinion, should demonstrate that the road reserve would service the development as well as the wider community needs. In the circumstances of the subject land, he believes there would be little extra benefit to the subject land, as demonstrated by the hypothetical development plan proposed by the claimant for the "before" situation. (Exhibit 9).
           To support that conclusion Mr Bell notes that the road reserve width of 100 metres for an arterial road, as proposed by the respondent, compared to a reserve width of 34 metres for a collector road, as required by the subject development, clearly demonstrates the additional encumbrance imposed upon the subject land. Mr Bell also notes that the intent of the "Commercial Industry Zone" supports the lesser road width. Mr Bell concedes that a road reserve width of 34 metres in that location would be reasonable.
           Mr Bell draws comparison between the broad scale transport network planning needs, or strategic transport documents; and the more specific land use zoning plans which control the actual land use rights of lands. Because of their different purpose and function, Mr Bell sees those two issues as "largely unrelated" (Transcript p.78). Mr Bell therefore believes that in the "before" situation prior to the resumption, even without direct access to the highway, the subject land would have been suitable for its zone purpose for commercial or industry purposes. He believes such use would be more acceptable than any extension of the residential uses to the east, because of the proximity and visibility of the quarrying and extractive uses immediately across the highway.
           However it is also noted that the need for the Bermuda Street southern extension had been signalled at various times by the respondent between 1990 and August 1994, in correspondence to both the Albert Shire Council and agents for the subject land. On all of those occasions the need for dedication of a road width to accommodate the future extension of Bermuda Street was highlighted, and a width of 100 metres was noted to be preserved. In my opinion such repetitiveness should have alerted any owner of the subject land to the likelihood that land would be required for road purposes in the future. It is also noted that under the Local Government Planning and Environment Act 1990, s.5.1(6)(b), a local government may approve an application to subdivide, subject to certain conditions.
In respect of any future requirement for a road reserve to accommodate the future extension of Bermuda Street from the Andrews Interchange, I note that at the date of resumption the Council was required under s.40 of the Transport Infrastructure Act 1994, to seek the respondent's approval as follows:
"40(1) A local government must obtain the chief executive's written approval if -
(a) it intends to -
(i) approve a subdivision, rezoning or development of land; or

(b) the approval, works or changes would -
(iii) have a significant impact on the planning of a State-controlled road or a future State-controlled road. "

In seeking to understand the meaning of "a significant impact" on the planning for a future State-controlled road, I note that in s.40(1) "significant" is taken to have its ordinary meaning. I note also that the impact of a proposed land subdivision upon road planning would be "significant" in the sense of s.40(1) depending upon factors particular to the case in question. Where a proposed State-controlled road was only an option open to the road planners, then it could not be demonstrated that the impact of a subdivision upon a highway could be taken to be "significant".
           That was found by the Court of Appeal in Brisbane Land Pty Ltd v. Pine Rivers Shire Council (2000) 1 Qd R 363. In that matter the respondent had applied to the Chief Executive under s.40(1) of the Transport Infrastructure Act 1994, for approval of a subdivision which was potentially applicable under s.40(1). The Chief Executive refused the application, noting that the proposed subdivision would have a significant impact upon at least two of the seven options available for a proposed local arterial road known as the north/south road, which would link to the Bruce Highway.
           It was noted in that matter that the proposed north/south road was "not intended to be a State-controlled road" (p.367). The evidence in the Planning and Environment Court below had been that the alignment and elevation in relation to other lands was not known. It was also not known whether the proposed north/south road would in fact encroach upon the subject land in that matter.
The Court of Appeal overturned the decision of the learned primary Judge who had upheld that the Chief Executive was entitled to withdraw his approval of the subdivision under s.40(1) of the Act. The Court of Appeal noted the lack of any evidence as to whether the relevant options for the north/south road would make a real difference, on indeed any difference, noting at p.371:
"          Further, one would have expected the respondent to adduce evidence before the court to enable it to determine not merely whether the proposed subdivisions would have a possible impact on planning, but whether any impact would be significant. This was a matter largely (if not entirely) within the knowledge of those making the plans."

In the current matter I believe Brisbane Land Pty Ltd can be distinguished inasmuch as the final alignment and levels of the proposed Bermuda Street southern extension are more clearly known. The links to the Andrews Interchange and to Old Coach Road have been the subject of detailed design and agreement. It is only a matter of timing before the southern extension road will be required.
I accept Mr Cronin's concern that appeals under s.40 of the Transport Infrastructure Act 1994 are a separate legal mechanism, and not part of the current matter. However I also note that the Council would have a legal requirement to consult with Queensland Transport in respect of any proposal that might impact the future road network in the region. I also note that it is the regular practice of the Council to seek to coordinate the needs of future transport planning schemes with any new development approvals. In fact not to do so would almost, in my opinion, be a dereliction of duty of care on the Council's part. Prior to 1994 any future road requirements were "conditioned" as being to the satisfaction of the Shire Engineer, as there was no formal nexus requiring Main Roads approval.
However I am also aware that where a route for a proposed corridor has not been decided, or that the road will eventually proceed, then the failure of the respondent to decide on the actual location and need for the road is not seen as reasonable or relevant grounds for refusing a subdivision application. (See Kabale Holdings Pty Ltd v. Council of the Shire of Albert [1993] QPLR 252).
However in the circumstances of the current matter, I believe that there is evidence that the future road will be required. The only difference between the parties lies in the actual width of the road reserve needed to accommodate the road, depending upon its future classification as either a sub-arterial or industrial collector road; and also the future date at which the road will be developed. For those reasons I believe Kabale can be distinguished, in spite of the eventual resumption of the Kabale land.

(5.2)     The Rezoning Application -
           Another matter of difference between the parties relates to the rezoning application by Keilar Fox & McGhie Pty Ltd on 22 November 1989, and the weight that can be attached to the actual proposal plan that accompanied that application (Exhibit 23).
           Maurice Francis McAnany, a consulting civil engineer for the respondent, argues that a rezoning plan would not be totally relied upon by a potential prudent purchaser; as many issues of detail are not fully disclosed until the final subdivisional design becomes available. Mr McAnany argues that a rezoning plan such as Exhibit 23, is intended to demonstrate to the Council that the land uses as proposed are appropriate.
           Mr McAnany argues that the facsimile enquiry from the claimant to the respondent on 4 September 1994, prior to the purchase of the subject land, demonstrates that point. He also notes that the rezoning plan (Exhibit 23) occurred some five years prior to the date of acquisition of the subject land by the claimant.
           Lawrence John Hamilton, a consulting registered valuer for the claimant, argues that in the marketplace the Keilar Fox & McGhie Pty Ltd plan was taken to generally represent how people thought the land would be developed, with direct access to the interchange. For that reason, Exhibit 23 has relevance to the claimant's case, in that it was in contemplation of the value of the price paid by the claimant, for the land in September 1994. However Mr Cronin argues that Exhibit 23 really reflects a situation "after" the proposed program of works was undertaken. Mr Cronin argues that Exhibit 23 reflects what the claimant thought it would achieve at the date of purchase, compared to later more realistic proposals (Exhibits 9 and 10). The impact of the relevance of the rezoning plan in Exhibit 23 is discussed later in Section 8.2.

Transport Influences -
           Traffic and transport planning evidence was given by Glen R Holdsworth for the claimant, and Colin Leonard Beard for the respondent. Both experts have considerable experience as consultants in traffic engineering.
(6.1)     Transport Planning -
           The history of transport planning in the locality is agreed as follows:
           (A)      Gold Coast Area Transport Study 1987 update.
           This joint study by Denis Johnstone & Associates for the Gold Coast City Council and the respondent, identified a road hierarchy for the region. The study in particular identified the location of a future arterial collector distributor road, connecting with the arterial Pacific Highway at or about the current Andrews Interchange. The road to the north of the Pacific Highway was designated as "future arterial", and to the south of the highway as "future collector/distributor".
           (B)      October 1989 Planning Report.
           This study by Burchill Bate Parker & Partners Pty Ltd for Queensland Transport focussed upon the design and construction of the Andrews Interchange, and a link from the Burleigh Connection Road to the Pacific Highway (known as the Bermuda Street extension). Under section 5.1 (Andrews Interchange Alternatives), section 5.3 (Construction Staging) identified that "future access to development south-west of the highway is to be made. It follows that the total interchange will only be required when this development occurs and hence staging of the construction will occur." (Page 18). The accompanying locality plan shows the location of the Andrews Interchange, and also the future southern extension to Tallebudgera Creek Connection Road (Old Coach Road).
           (C)      March 1994 Final Report.
           This report by Veitch Lister Consulting Pty Ltd for the Albert Shire Council, Gold Coast City Council and Queensland Transport, examined the long-term transport needs for the region of Gold Coast and Albert. The strategy identified the Bermuda Street extension and Old Coach Road as part of the preferred future road network. The declared intention of the Council on receipt of that plan was to preserve corridors identified by the report, including the Bermuda Street extension.
Within the context of those overall transport studies it was clear that, at some time in the future, there was a perceived need for the dedication and construction of the southern extension of Bermuda Street between the Pacific Highway and Old Coach Road. That strategy was further reinforced by correspondence between the Council and Keilar Fox & McGhie Pty Ltd, as agents for the former owners of the subject land in February and June 1990; the respondent and the Council in November 1990; the respondent to the claimant on 14 September 1994 (including a sketch plan identifying a 100 metre wide strip for possible road purposes); the respondent to the Council of 25 and 28 October 1994 objecting to any further subdivision of the subject land until the conditions of the rezoning approval of 1990 had been complied with.
Mr Beard argues that since 1987 or earlier, any prudent purchaser of the subject land would have been fully informed of the need for the planned southern extension from the Andrews Interchange. Mr Holdsworth agrees generally with that conclusion, noting also the following further studies in the area:
           (D)      South-East Regional Road Network Strategy - March 1994.
           That study by Queensland Transport looked at the wider region of the Sunshine Coast and Gold Coast, and noted at page 13 a number of major development proposals which will impact greatly on the future road network, including the Bermuda Street extension from the Andrews Interchange to Tallebudgera Creek Road (Old Coach Road). That southern extension was also identified in the following studies:
(E)Southern Gold Coast Tweed Corridor Study, Needs Paper (1997) by Connell Wagner.
(F)Integrated Regional Transport Plan (IRTP) for South-East Queensland Three Year Rolling Plan (1998).
(G)Gold Coast City Transport Plan (1998).
That plan by Gold Coast City Council identifies a notional target for the Bermuda Street extension in the period 2003 to 2005.
           (H)      IRTP for South-East Queensland (1999)
           This identifies actions that are critical to the success of the plan; and identifies, among others, the Bermuda Street extension to Tallebudgera Connection Road.
(I)       IRTP for SEQ (2007 Vision) (1999).
           In examining those studies Mr Holdsworth concludes that the respondent has a long and continuing need for construction of the southern extension from the Andrews Interchange, which is planned to be built in the next 6 to 10 years. Mr Beard disagrees only with the expected need for the new road, which he sees as between 3 and 5 years from now. However it is agreed by both parties that the current stage of planning (year 6) has not progressed in recent times and it is nearly 5 years since the date of resumption anyhow.
The above transport planning studies all had the official support of the relevant authorities, and were more than merely engineering predictions.

(6.2)     Traffic Generation -
           In seeking to assess the traffic generated by the development of the industrial users of the subject land, Mr Holdsworth estimates 6,500 to 7,000 vehicles per day. He believes that level of movement could have been accommodated by a single left-in and left-out interchange with the Pacific Highway as suggested by the Keilar Fox & McGhie Pty Ltd plan (Exhibit 23). However Mr Holdsworth concedes that interchanges on major motorways are assessed in relation to whether that location is going to service the wider community.
           On that basis Mr Holdsworth concedes that any interchange approved either in the "before" or "after" resumption situation, would need for the interchange to connect to the wider arterial road network. For that reason he agrees that the southern extension of Bermuda Street to Old Coach Road would have been required in any approval of an interchange at the Andrews Intersection. Mr Holdsworth argues that it would be the needs of an arterial road network that required the interchange and the access ramps, rather than any development on the subject land.
           However, in Mr Holdsworth's opinion, it would only be the setting aside of the land upon which to construct the southern extension, that would be required at the date of resumption; not the actual construction itself. Mr Holdsworth believes that because of the function of the Bermuda Street southern extension as an industrial collector road, the reserved land area would need to accommodate four traffic lanes and two parking lanes, plus any extra width for engineering batters due to topography. Mr Holdsworth sees the construction will proceed at a later time once demand from the hinterlands to the south had increased. For that reason Mr Holdsworth sees construction not proceeding for several years even at the current date. Mr Beard generally agrees with that view.
           Mr Holdsworth saw no traffic planning issues involved in either Exhibits 9 or 10, and for that reason he believes that in a pre-resumption situation approval for some interchange with the Pacific Highway from the subject land would have been approved, subject to meeting technical design requirements. Mr Beard agrees, but argues that the respondent's approval would always have been required when an interchange to the Pacific Highway was proposed. Such approval would depend upon the long-term planning needs of the area.
           Mr Beard predicts traffic generation movements to and from the subject land at 7,500 per day, and both experts agree there is no significance in their varying estimates. It is also agreed that the timing of development of the Bermuda Street southern extension would depend upon other developments in that region.
           Mr Beard further argues that before approval for any access to a left-in and left-out interface with the highway, the Department of Transport would require a traffic report from the developer to identify how any traffic movements towards the east might access, or depart from the subject land. On the presumption that about half of the total vehicle movements may need to negotiate either Old Coach Road, or the existing highway interchanges east and west of the subject land, a traffic report would need to demonstrate how those additional movements would be accommodated.
In respect of the capacity of an industrial collector road in that location, Mr Jones argues that a maximum of 300 lots, or 30 hectares is permitted in terms of maximum traffic generation. The subject land would create about 100 new lots. Mr Holdsworth agrees that the total traffic generated will not be restricted to the subject land, and will at least include traffic from the Old Burleigh Town Estate, and eventually from Kingsmore Estate to the south. The requirements of industrial collector roads and sub-arterial roads are discussed later in section 9.0. However Mr Beard envisages that industrial areas generate about three times the volume of traffic as areas of residential per broad scale hectare. Both Mr Holdsworth and Mr Beard agree that the design speed of such an industrial collector road in that location was likely to be 80 kph, and an operating speed of 60 kph, and with some limitation on direct access to the roadway.

The Residential Areas -
           The impact of the adjoining residential areas of Old Burleigh Town Estate immediately adjacent to the east of the subject land, is also a matter of some difference between the parties.
           The residential estate is designed to accommodate 1,137 new lots in 7 Precincts, extending to the east near Sullivan Road. It is proposed eventually that a service road (Oyster Creek Drive), will connect the Andrews Interchange with the new interchange referred to as the West Burleigh Interchange, located about 2.2 km to the east (Exhibit 24). Stages 4 and 6 (Precincts 5 and 6) are immediately to the east of the subject land and collectively include about 200 dwellings. A more recent approval (stage 7) is located east of stage 6, and to the east of Cowell Drive. Stages 4, 6 and 7 were originally designed to seek access to the highway via the West Burleigh Interchange, or via Old Coach Road. With stage 7 there has been an interim limit of 100 lots having access to Old Coach Road, until further traffic studies were undertaken.
           With the construction of a temporary access to the Andrews Interchange by the claimant, Mr Hamilton concedes some subsequent enhancement in the value of the in globo subject land by a factor of 50%. He allocates the remaining 50% increase to enhancement from improved access for stages 4 and 6 of the adjoining residential estate. Lloyd S Parsons, a consulting registered valuer for the respondent, argues that there is substantial enhancement in the subject land, but makes no special claim for such, relying upon any enhancement in the in globo value of the land in the "after" situation. Mr Parsons also notes that the Andrews Interchange provides significant enhancement to the adjoining residential lands to the east of the subject land, which has assisted in marketing those lands. The matter of a temporary access road to Andrews Interchange is discussed later in Section 8.24.

Access -
It is agreed that at the date of resumption in 1995, the subject land had direct frontage to the Pacific Highway, but physical access to that highway had not been approved by the respondent. There was legal access to Old Coach Road to the south, but any development application to use Old Coach Road for new industrial lots would have necessitated some upgrading of Old Coach Road.
Any physical access to the Pacific Highway was also likely to involve certain concessions to Main Roads for permission to be approved for an interchange to the highway. It was conceded by both Mr Holdsworth and Mr Bell that a likely concession would have been agreement to dedicate a road reserve for the future construction of the Bermuda Street southern extension to Old Coach Road.

(8.1)     Access to the Residential Lands -
Access to the varying stages of the adjoining Old Burleigh Town Residential Estate has been the subject of considerable agreement between the developers (the claimant) and the Council as follows:
           (a)       Stage 1 (Application to sub-divide - Council approval 29.5.1995).
           Agreed access to stage 1 was to be via a service road, and the proposed West Burleigh Interchange. There was also to be some dedication along Old Coach Road to the east of the subject land. The plan shows a proposal of a divided road extending south of the Andrews Interchange to Old Coach Road. Queensland Transport letter of 17 February 1994 identifies the need for the widening of Old Coach Road to accommodate a future link to Tallebudgera connection road from Andrews Interchange.
           (b)       Stage 3 (Application for subdivision - February 2000).
           The letter from Weathered Howe Pty Ltd to the Council notes: "Construction of Cowell Drive will eventually provide direct access to the Andrews Interchange/Bermuda Street and the Pacific Highway through the western half of the estate" (page 2).
           (c)       Stage 4A (Application to subdivide - Council approval 29.5.1995).
           Access was proposed from "the new service road/Pacific Highway Interchange. Temporary access from Old Coach Road may be required." (page 85 of Council minutes of 16 June 1995). Letter from Weathered Howe Pty Ltd to the Council of 8 May 1997 confirmed that access to the site will be allowed from the Andrews Interchange (page 4).
           (d)       Stage 4B (Application to subdivide - Council approval 8.9.1995).
           Access is proposed via the new service road/Pacific Highway Interchange (West Burleigh), a temporary access from Old Coach Road will be required (page 202). The approval was subject to dedication of land for transport infrastructure purposes.
           (e)       Stage 6 (Application to subdivide - undated Council approval).
           Similar conditions for previous stages. Letter from Main Roads to Weathered Howe of 24 February 1997 advising requirement for "dedication of land for the Tallebudgera Connection Road across Lot 76 on RP 215311, not including the lands subject to previous resumption notices, by 30 June 1997. (Item 3). Letter from Weathered Howe to the Council of 5 September 1997 agreeing in principle to the requirement to dedicate land for transport infrastructure. (Condition 2); and advising that the temporary road to the Andrews Interchange had been constructed. Also seeking extension of time beyond the initial approval period of two years.
           (f)        Stage 7 (Application to subdivide - Council meeting 15.12.1995).
This approval for 90 new lots was proposed for development prior to stages 6, 4A and 4B, which were previously approved. While the previous approvals set no limit on the number of lots which were subject to traffic constraints, stage 7 was agreed to have temporary connection to Old Coach Road, subject, among other conditions, to limit to a maximum of 100 lots as a temporary matter. That was subject to a detailed traffic analysis for the full development. Stage 7 was also subject to s.40 of the Transport Infrastructure Act 1994; and also s.134 of the Transport Operations (Passenger Transport) Act 1994. Weathered Howe Pty Ltd provided that traffic analysis on 29 July 1998. That study identified a total of 784 residential and 137 light industry and special business parcels, generating 11,000 vehicle trips per day.
           The study compared those predictions with findings of the study for the Council by traffic consultants in July 1995 which, among others, recommended that the connection of the Tallebudgera Connection Road to the Andrews Interchange should be constructed as soon as possible after the Oyster Creek service road is completed. The service road was recommended to be 4 lanes in width, and with no direct access to lots from the service road. The Old Burleigh Town Master Plan attached to that report, confirmed the location of the Bermuda Street southern extension approximately as shown on Exhibit 10.
           It is argued by the claimant that, prior to the development of the Andrews Interchange, any vehicles travelling from the residential stages of Old Burleigh Town Estate, would have had the option of using any "left-in left-out" interchange from the subject land to the highway, had that occurred (as outlined in Exhibit 9). It is conceded that access to the west along the highway would have been direct. However access to the east towards the southern part of the Gold Coast would have been less direct, and could have been achieved mainly by using the Reedy Creek Interchange to the west of the subject land. Likewise traffic travelling from the west to the residential areas of Old Burleigh Town Estate, would have had to negotiate the West Burleigh Interchange to the east, before returning to exit the highway via the subject interchange.
           However Mr McAnany argues that the use of the Reedy Creek Interchange would have been less effective than the Andrews Interchange. Mr McAnany notes that the Reedy Creek Interchange was very congested, and a below standard facility, due to complication with a trunk water main and a sewer rising main. In order to achieve effective access to that interchange, Mr McAnany's client (Kingsmore Estate) had finally agreed to provide a new off-ramp at no cost to the respondent.
           The land dedication for that new ramp, and its design, were to provide for the ultimate traffic requirements of the transport authority. However Kingsmore Estate only constructed that off-ramp, and the associated upgrading of Old Coach Road to their estate, to a level suitable for the then traffic to be generated.
           There has apparently been no application to subdivide stages 2, 4C or 5 at this time. A summary of the access provisions of Old Burleigh Town development indicates that in all of the communication about access to the estate, the claimant, or his predecessor, were aware that the respondent's concerns needed to be addressed. Those concerns involved the need for a detailed traffic analysis of predicted volumes of traffic, and access was to be via a major service road, and connected to either the Andrews Interchange or the proposed West Burleigh Interchange, whichever was constructed. In the end the Andrews Interchange was developed first, and the claimant subsequently obtained approval to provide temporary access to that facility. The Oyster Creek service road is still only partly fully constructed to a point about 1.3 km east of the subject land, and there are currently no access ramps to the West Burleigh Interchange.

(8.2) Access to Andrews Interchange -
Early recognition of the need for the Bermuda Street southern extension from the Andrews Interchange was noted in the letter of 28 November 1989 to Main Roads, from Keilar Fox & McGhie Pty Ltd as consultants for Navtone Pty Ltd. That letter sought confirmation of a sketch plan showing the location of the extension in a position later confirmed in Exhibit 23. Queensland Transport's letter of 15 November 1990 to the Council confirmed the approximate location, and width of reserve to be dedicated, which also aligns generally with Exhibit 23. A later letter from Queensland Transport to Milne Consulting Engineers Pty Ltd of 9 August 1994, advised that a wider road reserve would be required; and until detailed cross-sections were confirmed, requested that further earthworks not proceed over a corridor of 100 metres in width along the proposed future southern extension of Bermuda Street.

(8.2.1) Access to the western severance -

A critical problem which has delayed agreement for access to the subject land, has been how access would be achieved to the severance west of the future Bermuda South extension. A five-legged roundabout located just north of Old Coach Road, as proposed by the claimant's engineers, was rejected by Queensland Transport on 13 February 1998. That facsimile however confirmed an alternative underpass below the future southern extension in the approximate location as shown on Exhibit 10. It also confirmed the outcome of a meeting between the parties in January 1998. Unfortunately, final confirmation by letter of that agreement was not provided by the respondent until 25 January 2000.
That access to the western severance is proposed to be achieved in the interim, via an additional temporary road roundabout connecting to the current temporary access road within the eastern severance. (See Annexure 5 of Exhibit 8). It is agreed that all of those temporary facilities would later have to be removed once the final development of the Bermuda Street southern extension to Old Coach Road has been constructed. Mr Hamilton argues that the proposed access to the western severance cannot be described as "direct access" to the Andrews Interchange, and he sees the access as something less than the direct access that Exhibit 23 would have provided. It is his conclusion that failure to allow direct access to the interchange is key to the current difference between the parties. (Transcript p.302).
           A major factor impacting the final values of the land, both before and after resumption, is whether the delay in obtaining final approval of access agreement has caused unavoidable delays in developing parts of the subject land. It is the claimant's case that he has been unable to develop the western severance point until the access point under the Bermuda Street southern extension had been confirmed. He also argues that development of the eastern severance has been prevented by the need to provide temporary access roads.
           Mr McAnany and Mr Parsons for the respondent, agree with the delays in gaining understanding of the access to the western severance. However both argue that had the temporary access road been more selectively positioned within the eastern severance, then at least 12 or 13 lots may have been able to be developed, had market demand dictated that the lots could be readily sold. (Exhibit 35).
           Mr McAnany argues that the bridge under the connection road could only occur within an 80 metre stretch of that road, so that placement of the underpass from the eastern severance would be relatively restricted. It was noted that the temporary access road to the Old Burleigh Town Estate had taken a more direct route between the Andrews Interchange and Oyster Creek service road, due to the lesser costs involved.
           The timing of providing the access is also a key difference between the parties. Mr Beard argues that the market demand for new lots is usually the deciding influence in who should pay for any road infrastructure. He argues that councils never pay for those works, making them a condition of approval. He notes that Queensland Transport only acquires land to build a road where it is absolutely necessary.
           In order to ensure that the market place (through the developer) pays for road infrastructure, any slightly premature developments are refused until market forces convince the developer that it is to his economic advantage to pay the cost in order to be able to sell the new lots. When there is no direct nexus between the road corridor needs and the development, the matter is often settled by the courts, and resolved to either party.

(8.2.2) Access to sub-arterial/collector road -
           It is generally agreed by the parties that direct access to the extension of Bermuda Street from the Andrews Interchange to Old Coach Road, is unlikely to be approved in the "after" situation; either as an industrial collector road, or as a sub-arterial road. The nature of the topography would also mitigate against such an outcome. While the rezoning plan of Keilar Fox & McGhie Pty Ltd (Exhibit 23) suggests that three lots may not have had alternative access, other than to the collector road, that plan was seen only as indicative of a likely eventual development. The "after" plan (Exhibit 10) demonstrates that principle.
           The hypothetical proposal produced for the "before" situation by the claimants, (Exhibit 9), however allows for at least 7 lots with direct access only to the industrial collector road. That hypothetical design was prepared on the basis that the industrial collector road would be at grade, after a major reshaping, and regrading of the western severance to a grade of 2% across the land.
           The respondent argues that suitable design grades from the Andrews Interchange, and an agreed level from a redesigned Old Coach Road, would result in major elevation of the industrial collector road connecting those major roads. It is argued by the respondent that such elevation would severely impact the cost effectiveness of developing the lots in the western severance, thus making the road layout on Exhibit 9 impractical. Because of that elevation, the width of the road reserve that needed to be dedicated would, in the respondent's opinion, need to accommodate the required batters. It is argued that a road reserve of about 43 metres would be needed, not the approximate 30 metre width shown on Exhibit 9. Those issues are discussed in s.9.5.

(8.2.3) Access to Kingsmore Estate -
Mr McAnany concedes that access through the Bermuda Street extension to the Andrews Interchange would have provided some additional benefit to his client at the Kingsmore Estate. However he notes that access to that estate was mainly through lands to the north of Reedy Creek, and via the Reedy Creek interchange. Traffic studies were prepared for the transport authority and the council, which demonstrated that conclusion. The southern part of the Kingsmore Estate near the subject land is actually for park residential purposes, and represents only a small part of the traffic generation from that development.

(8.2.4) Temporary access road -
           As a consequence of problems in establishing a suitable access to the subject land, the claimant sought the permission of Main Roads for a temporary access road connecting the subject land, and the Old Burleigh Town Estate, to the Andrews Interchange which was completed in March 1997. By letter of 12 February 1997, the claimant confirmed his agreement to design and construct a suitable temporary access road through the subject land. The alignment of that temporary access road was at the discretion of the claimant, and its current direct alignment was chosen in order to minimise costs.
           The land upon which that temporary access road was constructed has been dedicated as "Public Road". However, it was approved by Main Roads' letter of 24 February 1997 that, subject to the eventual dedication and construction of the final service road through the development, the land containing the temporary access road would revert to the developer. As a public thoroughfare, the temporary access road was designed and constructed to Main Roads' specifications.
           As part of that agreement for the land to revert to the developer, there is a need to ensure that any lands adjoining that dedicated reserve for the temporary access road, remain in the name of the developer. That constraint is seen by the claimant as an impediment to the staged development of the eastern part of the subject land, and forms part of the claim for severance by the claimant. It is also argued by the claimant that eventually the temporary access road, and the proposed temporary roundabout to provide access to the west severance of the subject land, will have to be demolished and their costs thrown away.
           It is argued by Mr McAnany that the current location of the temporary access road by the developer, does not entirely prevent development of new lots in the eastern severance, should market demand encourage such a strategy. Mr McAnany also proposed an alternative alignment of the temporary access road which, in his opinion, would result in less eventual demolition of that pavement in order to fit the final design for the eastern severance. It is also agreed that before any development could proceed on the eastern severance, it would require the relocation of the water main at a cost of $340,000, as outlined previously in section 3.
           While Mr Dick concedes such a strategy, he notes that any proposal to redesign the road pattern for the eastern severance, must be seen in the perspective of the delay in deciding where access would occur for the western severance. Mr Dick notes that in 1997, when approval was given for the temporary access road, there was no idea of an underpass under the Bermuda Street extension, as now decided.
           The benefit of the temporary access road is a matter which leads to some difference between the parties. Mr Hamilton concedes that the claimant made a commercial marketing decision to construct that road as part of providing more direct access to the Old Burleigh Town Estate. As such the respondent argues that it is therefore unreasonable to seek compensation for its construction, when it was built for the developer's commercial advantage.

A similar argument holds for a possible future roundabout on that temporary access road, should it need to be constructed in order to provide access under the Bermuda Street extension to the western severance. Mr McAnany and Mr Parsons both note that had the developer seen some priority in developing the western severance first, then a suitable temporary access road to that severance could have been pursued, with corresponding safeguards for access provided to owners of new developed lots, guaranteeing legal access until the final road layout was developed. Mr McAnany also argues that the location of the temporary access road was determined entirely by the claimant's needs, and the Department of Transport merely advised that they had no objection to such a temporary location.

(8.2.5) Level of access -
It is agreed by both parties that the Andrews Interchange has enhanced the level of access to the highway. Mr Hamilton challenges the definition of that level of access to the subject land as "extraordinary good access", noting the rather indirect route from the western severance under the Bermuda Street extension.
However in explaining his use of those terms Mr Beard notes that the subject land is now located about 150 metres from a large diameter 2-lane circulating roundabout with very high capacity, which provides access to National Route 1. At the same time it also provides a connection into Bermuda Street, which is the primary arterial road serving the whole of the Gold Coast Region. Mr Beard confirms that, from a traffic engineering perspective, that is "extraordinarily good access". Mr Holdsworth concedes that the access is certainly good. On the evidence and following the inspection I would agree with Mr Beard.

(8.2.6) The stub access ramps -
           As part of his claim for disturbance, the claimant seeks reimbursement of $203,300 for the costs incurred by him in building the two connecting ramps from the Andrews Interchange carriageway to the temporary access road. It is agreed that those short ramps will generally form part of the final Bermuda Street extension, and will not require removal once the final roadworks are undertaken.
           The respondent argues that the ramps were constructed at the request of the claimant, and as part of his decision to proceed with the temporary access road for the claimant's commercial purposes. As such it is argued that the policy of the respondent in such matters is to agree to the design and construction of any such connecting ramps, subject to the developer meeting the full costs of the ramps.
           To support that policy statement I am referred to the Council Committee Minutes of 25 May 1994 (Exhibit 17). While those draft Minutes refer to the rezoning approval of adjoining Old Burleigh Town Estate, they articulate the Council's policy in respect of contributions to certain public works, where those works are driven by the needs of individual developments. The Council recommendation in respect of those ramps stipulates that they were to be to the satisfaction of the Department of Transport.
           The design and construction of the new access ramps was also addressed in the letter of 12 February 1997 from Weathered Howe to the respondent. In that letter it was confirmed that the claimant was prepared to undertake that work connecting the West Burleigh Interchange to the service road network. The respondent agreed in principle with that offer in its response of 24 February 1997. There is nothing in that correspondence to suggest that the development of the access ramps would be other than the responsibility of the developer, and I find accordingly. I also find that the engineering costs associated with those stub roads are not a reasonable direct consequence of the resumption, and are not compensable.

(8.2.7) Draft agreement offer -
           The respondent seeks to place some reliance upon an unsigned draft agreement offer between the claimant and the respondent in respect of certain infrastructure contributions and uncompleted works in 1996. That draft agreement purports that, in exchange for an offer by the claimant to supply a surety in the form of a bank guarantee to the value of $95,000, the respondent would agree to certain actions. Those actions would be used as offsets against the payment of transport infrastructure contributions ($55,500), and contributions towards upgrading the Tallebudgera Creek Road - Old Coach Road intersection ($39,500). The actions proposed by the claimant (and purportedly agreed by the respondent), included (among others) construction of the Bermuda Street extension, and construction of the ramps to Andrews Interchange. (Exhibit 30).
           Mr Dick advises that the draft agreement offer was never signed by the claimant, and represents only an attempt by the engineers (on legal advice) to formalise the then protracted negotiations between the parties. However Mr Jones argues that the claimant would have had to agree to the initial offer being made by Weathered Howe, who were working under instructions. As such, in his opinion, the unsigned agreement should be given some weight as an offer to which the claimant would have been prepared to agree.
           While Mr Jones' conclusions may have some substance, it must be noted that the agreement was never formalised and, at most, may have merely represented the frustrations being felt by the claimant in seeking resolution of the access problem. At best I believe the draft agreement offer may lend some slight weight to the evidence in respect of the responsibility of the claimant.

Roads -
The future road requirements for the area, involving the subject land, include the sub-arterial/industrial collector Bermuda Street extension, the feeder service roads, and the actual access roads servicing individual parcels. The need for the service road was discussed in section 8.

(9.1)     The Bermuda Street southern extension -
It is agreed by both parties that it would be reasonable to conclude that a connection between the Andrews Interchange and Old Coach Road will be required at some time in the future. The need for dedication of a road reserve was indicated in correspondence from the respondent to the Shire Council on 15 November 1990 (Exhibit 37); and has been repeated in succeeding advices to the Council of 5 October 1995, and 17 November 1995 (Exhibit 13).
           The need for the preservation of the future road corridor was also confirmed by the Council as its policy at the Council Coordination Committee Meeting of 31 May 1994 (Exhibit 13); and the possible future road reservation was conveyed to Hammercall Pty Ltd by the property search of 14 September 1994, prior to the claimant acquiring the subject land.
           However, while the respondent acknowledges the future need for the road connection, it was also noted that as the new road was not a State-controlled road at that time, any development of that connection road would be under the control of the Gold Coast City Council. That situation was also confirmed in the letter of agreement by the Gold Coast City Council to the respondent of 12 February 1996, in respect of the funding of a joint traffic study for the Bermuda Street southern extension (Exhibit 13). Mr Dick further advises that Old Coach Road is also under the Council's control, and is not a State-controlled road.
           Prior to the introduction of the Transport Infrastructure Act 1994, the procedure for dealing with applications for access to a State-controlled highway was for the application to be processed through the local council. The council would then seek a response from the Department of Transport in respect of overall approval, and conditions which should be imposed. The Council then included those conditions in any formal approval given to a developer.
           Under the Transport Infrastructure Act 1994, applications are now referred directly to the relevant State authority, which under s.26 of that Act exercises the power of a local authority. The application for rezoning in 1990 was effected under the earlier Local Government Act 1936, and action subsequent to 18 September 1990 dealt with under the Local Government (Planning and Environment) Act 1990.

(9.2)     The classification of the road -
The Bermuda Street southern extension has been variously described as a sub-arterial, or a collector/distributor road. The Design Standards for Subdivisional Roadworks of the Albert Shire Council are guidelines to control the development of all roadworks in the shire. They are not actually by-laws by enactment, but are guidelines which have been recognised by the Planning and Environment Court as defining the formal consistent requirements of the Albert Shire Council. Mr McAnany argues that, while only guidelines on the Council policy in such matters, they tend to be adopted almost universally by Council officers when establishing development approvals. He agrees that their level of lawfulness depends upon their incorporation into development approvals, and whether those standards are reasonable and relevant to a particular situation.
           In respect of an industrial collector road Mr Dick advises that the Council guidelines specify a minimum reserve width of 30 metres. Mr Beard agrees that the difference between a sub-arterial and an industrial collector road is not great, essentially being the extra 4 metres width allowed in the median strip for a sub-arterial road, requiring an overall minimum width of 34 metres. Both roads are defined as 2 lanes of traffic in each direction, separated by a median strip, with restricted lot access, other than at controlled intersections. Both categories of road require a high level of horizontal and vertical design, with appropriately designed roundabouts, or signalised traffic lights.
           Mr Holdsworth advises that a 1.5 metre strip, sufficient for a road sign, is usual on an industrial collector road; while a 5 metre median strip is provided for on a sub-arterial road. The additional width of 3.5 metres provides for landscaping, as a safety contribution, and also for a right turning traffic lane. Mr Holdsworth further advises that both categories of road at 30 metres or 34 metres width would provide the same capacity for traffic movements.
           Mr Beard further advises that the minimum reserve width is essentially applicable to a relatively flat site, where major earthwork batters are not involved. Where major filling has to be achieved to effect suitable vertical grades, then the reserve width would need to be increased accordingly. In respect of any need for a roundabout interchange along such category roads, that roundabout would need to provide for two lanes of circulating traffic. The roundabout could have a minimum radius of 30 metres, but in reality, to allow for an effective traffic speed of about 60 kph through the interchange, the radius would need to be much larger, perhaps of the order of 50 metres.

In the current matter Mr Beard argues that the roundabout depicted upon the hypothetical design of Exhibit 9, with its single lane capacity, would not meet the design criteria required for an effective roundabout upon a sub-arterial road connecting the Andrews Interchange with Old Coach Road. Mr Beard also notes that Bermuda Street North is a "regional" road, and is now a State-controlled road, being a higher classification than the southern extension. Because of the interface of the highway and that regional road, the likely traffic flows along the Bermuda Street southern extension would, in Mr Beard's opinion, suggest the latter to be a sub-arterial road, rather than an industrial collector road. While the Bermuda Street southern extension has not yet been identified as a future State-controlled road, Mr Leong expressed the opinion that there appeared to be no reason why it could not be so classified.
Mr Leong advises that initially a roundabout was proposed on both the northern and southern side of the highway, and connected by a bridge across the highway. After detailed investigations of cost alternatives, the existing larger high capacity roundabout was selected in order to maximise future traffic generated.

While the width of the carriageways is marginally different for the two road categories, and the design speed may be slightly different (60 kph compared to 80 kph), any real difference perhaps relates to lot access directly onto the roads. With a sub-arterial road direct access is most unlikely to be approved; while there may be some relaxation allowed when other reasonable alternatives were unavailable for industrial collector roads.

(9.3) The road reserve -
There are three factors in the current matter which would impact the final width of the future road reserve. Firstly the design requirements of the horizontal alignment and the vertical grades; secondly the physical nature of the topography of the subject land; and thirdly the need to interconnect with Old Coach Road.

(9.4)     The design requirements -
           Because of its category as a likely sub-arterial road, there will be a need to limit the number of interchanges between the Andrews Roundabout and Old Coach Road. In addition, because of its dual carriageways in both directions, any interchange will either be separated in some way, or under control situations.
           As a step in planning for the Bermuda Street extension, the respondent engaged Weathered Howe on 24 February 1997, to prepare design documentation to the respondent's specification, following planning studies and documentation by Weathered Howe in 1996 (Exhibit 19B). At that time Weathered Howe was also doing design studies for the claimant. Those design drawings for the respondent were aimed at ensuring the best possible solution for the future road, and to establish that a proposed service road would connect to the proposed sub-arterial road at the intersection with Old Coach Road, and link eastward to Old Burleigh Town Estate. Until the Bermuda Street southern extension was constructed, the drawing shows the current temporary access road connecting the Andrews Interchange to Old Burleigh Town Estate.
           Following their design study, Weathered Howe wrote to the Council on 20 May 1997 seeking subdivision approval of the subject land, and noting the agreement between the claimant and respondent for the road reserve area to be dedicated for future road purposes. Because that agreement was a requirement of approval, and involved the loss of land by the developer, the application requested the waiving of subdivision fees. That subdivision application referred to plan of survey SP100091, currently still to be registered, and showing an area of new road for both the sub-arterial connection road and the service road (Oyster Creek Drive). The horizontal alignment of the proposed arterial road corresponds closely with that proposed on the old rezoning approval plan in 1990 by Keilar Fox & McGhie Pty Ltd (Exhibit 23). The key to that horizontal alignment would appear to be the need to continue the eastern alignment of Old Coach Road along the ridge line upon which it is currently located. The horizontal alignment of Exhibit 10 reflects that philosophy. In order for the hypothetical design of Exhibit 9 to fit with the Old Coach Road alignment, a possible reverse curve arrangement would be needed. Mr McAnany argues that Council would be unlikely to approve such a proposal.
           There is agreement in respect of the vertical grades that the Council guidelines specify. Those guidelines set an absolute maximum grade for an industrial collector road at 8%, with a desired grade of 6%. These grades tend to reflect standard figures in road design. Mr Holdsworth agrees that slightly more stringent grades would tend to be required for a sub-arterial road, although he notes that there had been a firming of standards for road design in recent years, since the date of resumption in 1995. Mr Holdsworth has sought to reflect what he believes was the general standard required in 1995. He also notes that it would be normal for a developer to be required to do a preliminary design to demonstrate the road reserve requirements.
           However it must always be remembered that both the Council, and the respondent, will be constrained in what conditions they may lawfully impose upon a developer. Any condition must be within the legislation, or formal policy of either the Council or the government; and not merely a technical request to enhance a project beyond those constraints.
           The matter of the lawful pursuit of certain infrastructure charges, where those are not in a direct relationship with the impact upon a State-controlled road by the development, has been addressed by this Court. (See Shellray Pty Ltd v. Chief Executive, Department of Main Roads (A98-27) (supra) at page 19).

(9.5)     The Nature of the Topography -
           A key matter in deciding any road reserve width was likely to be the physical nature of the subject land at the time of resumption. It is agreed that the land had been the subject of major excavation over a period of years, by a company known to the claimant as noted in section 3. The result of that excavation was that the final design level of the proposed Bermuda Street southern extension connection road would in places be well above the current excavated surface.
           It is argued by the parties that there were essentially two methods of meeting those design constraints:

(i)        the road carriage-way could be developed with either earth batters, or concrete retaining walls; with consequential increase of the reserve to accommodate those structures;
(ii)       the subject land could be regraded and filled to bring the land surface nearer to the level of the proposed sub-arterial road, and thus reduce the need for large batters on the earthworks.
           I look then at the varying impacts of the topography upon the two alternative road designs provided by the parties. I note that the hypothetical design of the claimant in the "before" situation (Exhibit 9), would appear to create some difficulties in respect of the difference in level between the new road and the current ground surface. Mr Dick argues that there would only be a variation of about 3 metres in height at the southern of the two roundabouts proposed on the subject land. That hypothetical proposal depicts access to the eastern and western parts of the subject land at either side of the proposed connection road, via two roundabouts.
           Mr McAnany rejects that conclusion, arguing that the road layout depicted by Exhibit 9 is unrealistic. He bases that conclusion upon the designed alignment and grades of the connection road, and a computer plot of the surface levels in December 1994 (Exhibit 33). It is the respondent's argument that a road network as depicted by Exhibit 9, would result in filling of about 9 metres at that southern roundabout.
           Mr Dick agrees with Mr McAnany's conclusion on existing surface levels, but argues that, by regrading approximately 350,000 cubic metres across the subject land, it would be possible to considerably reduce that height difference between any new industrial lots and the proposed connection road. As a consequence of that regrading, Mr Dick argues there would be less batters needed along the proposed connection road.
           Mr Dick further advises that his design for the regrading of the subject land was effected on the basis of some 450,000 cubic metres of fill becoming available, 100,000 cubic metres of which was to be used for spoil on other parts of the development. Mr Dick concedes that the computer remodelling of the reshaping of the subject land has only been done based upon the "after" layout (Exhibit 10), and had not been undertaken for the Exhibit 9 hypothetical proposal for the "before" situation. However Mr Dick also argues that a further regrading of the subject land could be undertaken in order to further raise the developed new lots nearer to the level of the proposed connection road. Whilst such engineering modelling and reshaping of the site is always a possibility, subject of course to costs, the actual excavated nature of the subject land has been a matter of dispute between the parties. Indeed that was the reason why the respondent wrote to Milne Consulting Engineers Pty Ltd on 9 August 1994, who were acting for the former owners of the subject land, requesting that no further earthworks should proceed in a 100 metre corridor along the alignment of the proposed connection road in its location as shown on Exhibit 10. That letter also included a request to the Albert Shire Council to instruct the developer (a company known to Hammercall Pty Ltd) to cease further earthworks in that corridor.

In respect of the claim for engineering costs associated with the design and documentation for the southern connection road and the service road, I believe those are costs more properly associated with the claimant's responsibility to satisfy the respondent, that any future development on the subject land would not impact the future sub arterial road. For that reason, I see those costs as being a reasonable and relevant part of the normal development of the subject land, and on that basis, I would agree with Mr Cronin, that those costs are not compensable in this matter.
However, in coming to that conclusion, I also note that the timing of the need for the southern connection road, could upset that responsibility. Should the respondent see the need to resume the corridor for the southern extension connection road, prior to any development proposal by the claimant for the subject land, that level of responsibility would be different.
(iii)      Value of the land taken -
In adopting the "before and after" method of valuation, both valuers have followed principles long established in the Courts, particularly in compensation matters, where there may be issues of enhancement or appreciation in value. (See HA & SB Shann v. The Commissioner of Water Resources (1986-87) 11 QLCR 194; Gwynvill Properties Pty Ltd v. Commissioner for Main Roads (1981-83) 50 LGRA 322; CF Stanfield v. Commissioner of Main Roads (1969) 36 CLLR 76; Brisbane City Council v. RD & DE Lansbury (1977) 4 QLCR 502, at 506 to 508; and, more recently, in Boral Bricks (Qld) Ltd v. Director-General, Department of Main Roads (A97-23), 4 March 1999, to be reported.)
·    The Before Situation -
As outlined above, I see the southern connection road as integral to the overall scheme for the transportation purpose for the Andrews Interchange. Therefore, in accordance with the Pointe Gourde principle, any assessment of compensation must exclude any appreciation or reduction in the value of the land in the "before" situation as a consequence of that overall scheme.
On the above basis I do not accept Mr Parsons' argument that Exhibit 10 satisfies the "before" situation, as that design proposal clearly makes due allowance for the proposed Andrews Interchange, including the southern connection road. However, in rejecting Exhibit 10, as a "before" scenario, I do not exclude any impacts resulting from the potential of the subject land for development purposes.
It is agreed that in the "before" situation, any proposal for development access to the highway, would have required the approval of the respondent. That approval was always likely to be subject to certain conditions, and most likely to involve a traffic impact analysis. Such an analysis would need to consider the overall traffic needs of the adjoining areas, as well as the traffic generated by the proposed development upon the subject land.
In considering the traffic needs the developer would have been aware of the proposed overall transport proposal for the region, as espoused in the formal transport studies which were well documented. All of those studies demonstrated a link between the highway and Old Coach Road. As noted by Mr Cronin, it was agreed by the claimant, that the land for the southern connection road would be required one way or another as part of the condition of approval (Transcript p.331). In fact the rezoning plan in 1990 (Exhibit 23) demonstrated that connection.
While I accept that Exhibit 23 was merely an indication of how the land may be developed, I believe it contained the principle of a link between the highway and Old Coach Road. That rezoning plan also contained the reasonable assumption that access of some type was likely to be approved from the highway. On that basis, I believe Mr Parsons may have underestimated the impact of potential access in his "before" situation. While it is agreed that there was no approved access at that time, the strategic location of the subject land would have been an influence on the likelihood of approval of access to the highway. If Mr Parsons sees the access as extremely good in the "after" situation, then he should have allowed a reasonable level of value also in the "before" situation.
Adopting the sales evidence supplied, I find Mr Hamilton concludes a base value in the "before" situation of $3,279,100 ($110,000 per hectare), and Mr Parsons concludes $3,300,000 ($110,000 per hectare). I note also that Mr Parsons had formerly assessed the subject land in January 1996 at $3,600,000 ($120,000 per hectare) in the "before" situation. His more recent assessment was arrived at after further consideration of a subsequent sale in January 1997 (Sale 3), and after considering access constraints. However, if Mr Parsons had tended to underestimate the likely impact of the access to the subject land, then his assessment of the "before" situation might lie between $3,300,000 and $3,600,000.
I note also that Mr Parsons' Sale 3 (Enterprise Park), has more indirect access to the highway via Township Drive and then Tsipura Drive interchange, than the potential direct access to the highway of the subject land. On that basis I could accept a higher "before" value of $3,600,000. However, that tends to be in conflict with the sale price of the subject land in September 1994 for $3,200,000. On balance, I believe a base in globo rate of $3,300,000 in the "before" situation is reasonable.
In arriving at his value in the "before" situation, Mr Hamilton seeks then to deduct an amount of $257,500, reflecting 50% of the cost of providing the on and off ramps. He argues that is to compare like with like in his comparison with his sales, where access is available. That concludes a "before" value of $3,021,600 ($101,000 per hectare).
However, if the cost of the stub roads is to be deducted in order to allow like with like access, then it is reasonable to compare the quality of the access provided to both the subject land and Sale 3. Because of its strategic location, I believe the access would be superior at the subject land. That could then suggest that the subject land is superior, and a figure greater than $3,021,600 would be appropriate.
I also note Mr Parsons' query that a 50% split between the subject land (100 industrial lots), and Old Burleigh Town Estate (1,137 residential lots) does not appear equitable. As industrial lots generate about three times the volume of traffic compared to residential lots, a split of about 30% (subject) and 70% (Old Burleigh Town) may have been more appropriate. However, while that assumption is only speculation, I believe on balance I will accept a "before" value of the subject land at $3,300,000.
·    The After Situation -
In assessing the respective "after" values, Mr Hamilton has taken the approach of accepting future restrictions that will be placed upon the subject land. Accordingly, he determines allocations of useful land on a piecemeal basis, comparing each smaller parcel with comparable sales. Mr Parsons compares his value on an overall in globo basis.
           In concluding Mr Hamilton's "after" value, there is no real argument about his separate allowances for the three severances, or his assessed value of $2,613,000 for those severances. However, I have some concern with his apportionment of the benefit of the temporary access road. Mr Hamilton apportions that cost of 50% ($419,100) to the subject land, and 50% to the adjoining residential areas (Precincts 5 and 6).
           In considering the matter of the temporary access road, I note that for that to be compensable it must be seen to be a reasonable consequence of the resumption. That principle was followed in JJ & MT Stephens v. The Council of the Shire of Albert (1992-93) 14 QLCR 356, where the learned Member (later President) said at p.370:
"             By introducing the concept of 'the prudent purchaser in the position of the owner', it is clear that a dispossessed owner may not be entitled to receive compensation for all economic loss or costs which he perceives as resulting from the resumption. Disturbance can be awarded only for those losses or costs which are not too remote, and which are the natural and reasonable consequence of the resumption: Harvey v. Crawley Development Corporation (1957) 1 All ER 504 at p.507; Universal Sands and Minerals Pty Ltd v. The Commonwealth (1980) 30 ALR 637 at p.640."
However, I note that the temporary access road was a strategic marketing decision of the claimant, and the benefits have flowed to the residential area since it was completed. The benefits flowing to the subject land, and in particular to the western severance, are still to be realised. If I adopt a similar benefit ratio of 30% subject land, and 70% overall residential land; and if I allow an access benefit to more than only Precincts 5 and 6, I could conclude a lesser reduction for the shared costs of the temporary road.
           I believe that the decision to construct a temporary access road, in its current location, indicates that the claimant saw the major, if not total, benefit accruing to the residential areas. Because of the deferred timing of the subject land, I reject any reduction for those costs of the temporary access road in the assessment of the subject land as being a reasonable consequence of the resumption. On that basis I could conclude an "after" value of $2,613,000.
           If I then examine Mr Parsons' estimate of the "after" value, I find that he has allowed an in globo rate of $125,000 per hectare. That represents an additional $15,000 per hectare for the "direct access" to the interchange, estimating a total "after" value of $3,500,000. In concluding his rate of $125,000 per hectare, Mr Parsons has accepted advice that development costs associated with the "after" development would be less than in the "before" situation.
           He bases that on the cost savings (as he says enhancement) of $532,000 for the construction of the on and off ramps, which will not now be required. While Mr Parsons notes that, in his opinion, there is also enhancement to the adjoining lands of the claimant, he makes no allowance for that in his value of the subject land.
           However, in his comparisons with his Sale 2, I note that Mr Parsons is inconsistent with his application in both the "before" and "after" situations. Mr Parsons saw that sale as superior overall to the subject land, but has discounted that sale as below the market. However, there is no evidence from Mr Parsons on what basis he determined his rate of $125,000 per hectare, other than that he believed it represented $15,000 per hectare more for the better access. It is also noted that Mr Hamilton assessed the common sale (his Sale 3 and Mr Parsons' Sale 2) at $99,000 per hectare, and also saw it as superior on a per hectare basis. However, that sale would appear to be out of line with both Mr Parsons' Sales 1 and 3. On that basis I believe there is nothing to discredit Mr Parsons' estimate of the "after" value at $3,500,000 ($125,000 per ha), based only upon the sales evidence.
           In seeking reasons for why the two experienced valuers have concluded such diverse outcomes, I look to the method of assessing the subject land. In adopting his piecemeal approach, Mr Hamilton has assessed the future road reserves separating the severances as having nil value. Presumably he does that on the basis that the claimant would be required to cede those lands to the respondent, at no cost to the respondent. While that may be the eventual outcome of negotiations between the parties, it may not be accurate as to conclude that the area of the resumed lands has no value to the claimant.
           At the very least, such lands would be a negotiating point to seek to obtain some concessions from the respondent. After all, if the claimant is unable to proceed with development due to the economic inadvisability of such an approach, then eventually the respondent may be forced by traffic pressures to move to resume the land. It is not uncommon in the development industry for some compromise to be achieved.
           In seeking to understand the history of the adoption of the "before and after" method, I note it was adopted in Realty Corporation Ltd v. The Commissioner for Main Roads (1938-41) 14 NSWLGR 204, where Roper J said at p.205:
"          It appears to me that the easiest and the proper way to determine the value of the land resumed and the damage to the residues by severance is to ascertain the difference between the value of the lots before resumption and the value of the residues after resumption."
That principle was followed in Boiadjieff & Anor v. The Minister (1963) 8 LGRA 68, per Else-Mitchell J at 73; Brell v. Penrith City Council (1966) 11 LGRA 156, per Else-Mitchell J at 160; Brisbane City Council v. RD & DE Lansbury (supra) at 508; and DH Hill v. The Crown (1980-81) 7 QLCR 128, at 131/132.)
           In all of those cases the wording is to compare the difference between the value of the property before the acquisition and the value of the remaining land. The presumption would appear to refer to all of the remaining land; not only those parts which are seen as developable. On that basis I would prefer the approach of Mr Parsons.
           In adopting Mr Parsons' overall in globo approach in the "after" situation, the evidence in relation to Access (s.8) and Roads (s.9) has relevance only inasmuch as they impact the understanding of the market value of the land. The width of the future road reserve for the southern extension, and the design and location of any intersection with Old Coach Road, would be matters for decision in respect of the future development of the subject land.
           However, in adopting his enhanced rate per hectare of $125,000 for the increased direct access to the subject land in the "after" situation, Mr Parsons, in my opinion, should have also allowed for some delay in achieving that potential access. It is agreed that access to the subject land, particularly the western portion, has been a long and contentious issue, principally as a consequence of the need to protect the integrity of the southern connection road. While apparently there was some common understanding between Mr Leong and Mr Dick in January 1998, the claimant would have been less than prudent to have determined his development proposals, based only upon such an understanding. It was not until January 2000 that official recognition of the underpass solution to the western severance was achieved.
           There may be some argument that the market for industrial parcels was not ripe for development. The historical records of sales of industrial lots supplied by Mr Parsons (Exhibit 41), indicate at February 1999 that there was a total of 120 lots for sale out of a total of 176 vacant industrial lots in the Yatala to Currumbin locality. The annual rate of sales in 1998 had been 45 lots. At the date of the survey there was also a further 130 lots proposed for development. The majority of the lots for sale were in the West Burleigh area.
           It was noted that sales of industrial lots had grown steadily from 43 (1991) to 110 (1994), then declining to about 45 to 65 annually between 1995 and 1998. Over a 12-year period sales had averaged about 60 lots on an annual basis, with about half of those sales occurring as a result of new developments.
           It was Mr Parsons' evidence that since 1995, with the then limited supply of industrial lots available, and a shortage of available in globo land within the central coast regions, developers began to position themselves for a strengthening of the market. That the claimant did not join that move demonstrates, in my opinion, that there were other reasons for delaying development of the subject land.
           It is agreed that the subject land is located in a key strategic position with direct access to the highway. I believe the evidence weighs more towards delays in development arising as a consequence of uncertain access approvals, rather than merely assuming that the market was not ready for new industrial lots. However, I do not accept the delays proposed by Mr Hamilton. I believe as from 20 January 2000 the claimant would have been in a position to rely upon having agreed access to the subject land.
           On that basis I believe that any enhancement of direct access to the Andrews Interchange could have taken effect only from that date. Any in globo rate per hectare, reflecting such an enhancement, should therefore be deferred until at least 20 January 2000, in my opinion, in order to allow for the risk of uncertainty of access. On the basis of deferring the enhanced area by four years from the date of resumption at 25 November 1995, I could determine a discount rate for that delayed benefit of 23% (ie present value at 6.75% for four years). However, that discount rate has the benefit of hindsight, a comfort not afforded the prudent purchaser at the time of the resumption. I note Mr Hamilton has allowed a discount rate of 10% to allow for the risks involved in resolving the problems of access. On balance, I will allow a discount rate of 15% for that purpose.
           If I then discount Mr Parsons' "after" rate of $125,000 per ha by 15%, I conclude a rate of $106,250 per hectare. My adjustment of Mr Parsons' estimate would therefore be 27.88 hectares at $106,250 per hectare or $2,962,250.
           In summary then I have the following estimates:

Value	Mr Hamilton	Mr Parsons
Before	$3,300,000	$3,300,000
After	$2,613,000	$2,962,250
Difference	$687,000 (loss)	$337,750 (loss)

I will adopt Mr Parsons' amended figures.

(iv)      Disturbance -
           In summarising the claims for disturbance, I note that the legal fees ($2,460) and the valuation fees ($5,000) are agreed. Having rejected the engineering fees in connection with the design and documentation of the southern extension road (see s.(ii)); and also determined that the costs of the stub access roads are the responsibility of the developer (s.8.2.6), I am left with the claim for engineering costs associated with preparing the claim for compensation ($53,960) (see s.13).
           In analysing the claim for $53,960 I note that those costs relate to civil engineering costs ($17,650), Andrews Interchange costs ($16,140) and QT resumption costs ($20,170). The fees relate specifically to professional engineering advice, briefings, attendance at meetings, and preparation of estimates, plans and costings. Mr Dick was unable to specifically detail the break-up of the costs, relying upon his computer record, which was generated from timesheets and invoices. Mr Dick confirms that the $17,650 for civil engineering costs relates to a component of the total of $96,015 for civil engineering costs listed for all of the range of projects associated with the development of the Old Burleigh Town Estate.
           On balance, allowing any benefit of doubt in the claimant's favour, I will accept the $17,650 for civil engineering fees as reflecting work associated with preparing the accepted part of the claim. I also allow the QT resumption fees of $20,170 as reasonably associated with the resumption. The figure of $16,140 for the Andrews Interchange is seen as not directly relevant to the resumption, and is not allowed. That results in a total of $37,820 for professional engineering fees, which are applicable to the compensation due.
(v)       Determination of Compensation -
           Compensation is therefore determined as follows:
·    Value for land lost   $337,750
·    Engineering fees for submitting claim for compensation  $37,820
·    Legal fees for submitting claim for compensation  $2,460
·    Valuation fees for submission of claim for compensation  $5,000

TOTAL $383,030
There was no evidence of any advance against compensation paid by the respondent. In summary, compensation under all headings for the resumption of the land, is awarded in the sum of Three Hundred and Eighty-three Thousand and Thirty Dollars ($383,030). It is ordered that interest at the rate of 6.75% per annum be paid on the amount of $337,750 from the date of resumption at 24 November 1995 up to and including the day immediately preceding the date that the amount of compensation is paid. It is further ordered that interest at the rate of 6.75% is to be paid on the sum of $45,280 from the date of payment of the professional fees (if they were paid), up until the day immediately preceding the date upon which compensation is made.

NG DIVETT
MEMBER OF THE LAND COURT

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Hammercall Pty Ltd v Chief Executive, Department of Main Roads [2000] QLC 57

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Dekkan v Macquarie Leasing Pty Limited (No. 2) [2008] FCA 1431

[2000] QLC 57

21 September 2000