Hansen v Brisbane City Council - [1998] QLC 105

[1998] QLC 105

LAND COURT

BRISBANE

21 September 1998

Re: Claim for compensation - Acquisition of Land Act 1967

(A97-78)

Allan T and Phyllis D Hansen
v.
Brisbane City Council

(A97-79)

Gordon KW and Amy SY Lee
v.
Brisbane City Council

(A98-04)

Geoffrey P and Lynette R Smith
v.
Brisbane City Council

JUDGMENT

Introduction

These three cases concern claims by adjoining land owners for compensation for land taken from the road frontage of each of four parcels of land for “road purposes”. The parent parcels are located at 112-118, 124 and 130 Padstow Road, Eight Mile Plains in Brisbane. Mr and Mrs Lee own two of the parcels, Mr and Mrs Hansen own one parcel, and Dr and Mrs Smith own one parcel.
           On 8 November 1996, the respondent constructing authority acquired a strip of land 1.49 metres wide from the full frontage of each parcel as part of a scheme to allow the section of Padstow Road to the west of Warrigal Road to be upgraded from a two-lane undivided road to a four-lane divided facility. Some 47 square metres of land was resumed from each parcel.
           The claimants claim compensation for the loss of the land and for injurious affection to the balance land. At the start of the hearing, Mr and Mrs Lee claimed a total of $51,000.00 plus legal and valuation fees, Mr and Mrs Hansen claimed $39,000.00 plus legal and valuation fees, and Dr and Mrs Smith claimed $36,500.00 plus legal and valuation fees. Those figures were changed later to reflect replacement and reinstatement work undertaken by the constructing authority on the retained land.
           The constructing authority contends that, in each case, the balance land was enhanced by the works undertaken in conjunction with the resumption and that there has been no injurious affection to the balance land. Consequently it resists any claim for compensation.
           The cases were heard together. Despite some minor differences in the features of the parcels of land, the legal and factual issues raised in all three cases were essentially the same.
Assessing the amount of compensation payable - the statutory criteria
           The Acquisition of Land Act 1967 provides:
“Assessment of compensation

20(1) In assessing the compensation to be paid, regard shall in every case be had not only to the value of land taken but also to the damage (if any) caused by either or both of the following, namely -

(a)the severing of the land taken from other land of the claimant;

(b)the exercise of any statutory powers by the constructing authority otherwise injuriously affecting such other land.

(2) Compensation shall be assessed according to the value of the estate or interest of the claimant in the land taken on the date when it was taken.
(3) In assessing the compensation to be paid, there shall be taken into consideration, by way of set-off or abatement, any enhancement of the value of the interest of the claimant in any land adjoining the land taken or severed therefrom by the…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [1998] QLC 105
Decision Date: 21 September 1998

CaseChat Overview and Summary

In the matter of Hansen v Brisbane City Council, the dispute revolves around the compensation due to the claimants for the injurious affection suffered by their properties due to the resumption of adjacent land and subsequent roadworks. The Brisbane City Council had resumed land adjacent to the claimants' properties on Padstow Road, which resulted in the widening and upgrading of the road. The claimants argued that the roadworks and increased traffic adversely affected the residential amenity of their properties, leading to a reduction in their value. The case was heard by the Supreme Court of Queensland.

The primary legal issues the court had to address were whether the Council's actions resulted in injurious affection to the claimants' properties and, if so, the appropriate amount of compensation. The court had to consider the evidence regarding the value of the resumed land, the extent of the injurious affection, and the principles guiding compensation for injurious affection. The court also needed to determine if the Council's actions constituted a compensable injurious affection under the relevant legislation.

The court found that the roadworks had indeed caused injurious affection to the claimants' properties. The increased traffic, noise, and restrictions on access and parking were significant factors contributing to the detrimental impact on the residential amenity of the properties. The court emphasised that compensation should be determined in a generous rather than a niggardly spirit, taking into account any doubts in favour of the claimants. The court assessed the value of the resumed land and concluded that the compensation should reflect the diminution in value of the claimants' properties due to the injurious affection. The court awarded compensation to the claimants, taking into account the evidence and the applicable legal principles.

The court ordered the Brisbane City Council to pay the claimants compensation for the injurious affection to their properties, reflecting the reduction in value due to the roadworks and increased traffic. The exact amount of compensation was determined based on the court's assessment of the evidence and the legal principles governing compensation for injurious affection.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

206 Bleasby Road: The land is a vacant level site which is slightly above road level and has a northerly aspect. On the western side it adjoins an open cut drain flowing from Padstow Road to the south. The land has a quiet residential amenity and is surrounded by good quality dwellings. It was purchased in January 1995 for $310,000.00, an average of $76.60/m². A substantial dwelling was subsequently constructed. Mr Wood described the sale land as superior to each of the parent parcels. Mr McLennan agreed that the land is superior, but only because it is not on Padstow Road. He again noted that the sale was about two years before the date of resumption and so supported the figure of $80/m² which he had adopted for the parent parcels. I am satisfied that, although the land may otherwise be comparable, its location makes it superior to that of the parent parcels. Conclusions about the value of resumed land: Mr McLennan concluded that the sales described in Mr Wood’s report support his valuation of the parent parcels at $80/m², particularly as any doubts should be resolved in the land owner’s favour. Mr Wood, however, could not see any basis in the evidence for that value to be applied to the parent parcels. There is well accepted authority for the proposition that, in determining the amount of compensation payable to a dispossessed owner, any doubts are to be resolved in favour of a more liberal estimate (see Commissioner of Succession Duties (SA) v Executor Trustee & Agency Co of South Australia Ltd (1947) 74 CLR 358 at 374; Castle Hill Brick Tile & Pottery Works Pty Ltd v Baulkham Hills Shire Council (1961) 7 LGRA 139 at 154). It has also been stated that the assessment of compensation is to be approached “in a generous rather than a niggardly spirit” (Latimer v North Coast National Agricultural and Industrial Society (1938) 14 LGR (NSW) 30 at 32 per Roper J; see also Hawkins v Director-General, Department of Transport (1993) 14 QLCR 437 at 450-1). Even without that authority, I am satisfied that the value of the resumed land at the date of resumption was closer to the amount assessed by Mr McLennan than that of Mr Wood. I am also satisfied that, when considered separately, Lot 65 was worth slightly less than Lot 64 because of the presence of the drain. Although all of the sales evidence is relevant, the value of the resumed parcels can best be determined by reference to the value of the parent parcels which, in turn, are best valued by reference to sales of land with comparable sizes, zoning and street location. Thus, of the sales in Mr Wood’s schedule of sales, the most comparable parcels are sales 1 and 2 in Padstow Road and, to a slightly lesser extent, sales 5, 6 and 7 in Bleasby Road. Allowance should be made for the dates of sales when compared with the date of resumption, and the slight increase in values between, say, July 1994 (the date when the sale 2 parcel was sold) and that later date. In my opinion, at the date of resumption the land resumed from Lots 62, 63 and 64 was worth an average of $78/m², or $3,666.00 for each 47 m² parcel. The land resumed from Lot 65 was worth $75/m² or $3,525.00. When proper allowance is made for the size, zoning and development potential of 191 Padstow Road and sales 3 and 4 on Mr Wood’s schedule of sales, it can be seen that they are consistent with such figures. Injurious affection Both before and after the date of resumption the residential amenity of each of the subject parcels was detrimentally affected by its frontage to Padstow Road, an east-west connecting road across the southern suburbs of Brisbane. Mr Feros described the road as a Type D road intended primarily to provide access to Type C roads and to carry through traffic. It carries a steady stream of relatively fast moving traffic. Approximately ten per cent of the traffic is heavy trucks, including trucks carrying containers. The use of Padstow Road by heavy vehicles, and other developments, have confirmed its role as an arterial road. Before the resumption and subsequent roadworks, that part of Padstow Road which passed the subject properties was of two lane bitumen strip formation with gravel verges, grassed earth water channels and relatively unregulated grassed footpath. Since the roadworks have been completed, the road has been widened to a four lane sealed road divided by a median strip. Kerbing and channelling have been constructed. A footpath (comprising a central concrete pedestrian pavement) has been built in part on the resumed land and in part on the previous road reserve. Vehicular crossovers have been provided for access to each of the three subject properties. The claimants submit that the value of the balance land was significantly reduced as a result of the resumption of land, the associated roadworks and the consequent effects of traffic using the widened road. They cite, in particular, the increase in traffic (and attendant noise and fumes) along Padstow Road, the restrictions on on-street car parking between 7.00 am and 6.00 pm Monday to Friday at the frontage of the subject parcels, the restrictions on vehicles turning into the driveway of each parcel (particularly due to the lack of road shoulder or deceleration lanes), the restrictions on vehicles turning out of each parcel (which can only turn left because of the median strip dividing Padstow Road), the restrictions on visibility for motorists from the trees planted on the median strips and on the land between the formed footpath and the road, and the noise from vehicles (especially trucks) driving over a grate on the side of the road in front of Lot 65. It was submitted that the upgrading has made property access by residents difficult and hazardous due to the combination of a narrow kerb lane, high traffic flows and a high proportion of heavy vehicles (which tend to travel in the kerb lane). The claimants’ case involves questions of fact and law. First, there is a question whether, given the nature of the works carried out on the resumed land, any compensation is payable for injurious affection to the balance land. Second, if there is injurious affection, what amount of compensation is payable.

Ratio Decidendi

Legal Principle Established

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