Hansen v Brisbane City Council
[1998] QLC 105
•21 September 1998
|
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 carrying out of the works or purpose for which the land is taken.
(4) But in no case shall subsection (3) operate so as to require any payment to be made by the claimant in consideration of such enhancement of value.”
The three critical issues in this case are:
(a) the value of the land taken as at the date of resumption (8 November 1996); and(b)whether, as the claimants contend, there has been injurious affection to the balance land; or
(c)whether, as the constructing authority contends, the enhanced value of the balance land exceeds the value of the land taken.
The subject land
The parent parcels are described as Lots 62, 63, 64 and 65 on RP 37944 in the County of Stanley, Parish of Yeerongpilly. They are situated on the northern side of Padstow Road to the east of Bulimba Creek. Each Lot has a rectangular shape with a frontage of approximately 31.6 metres to Padstow Road and a depth (before resumption) of approximately 128.5 metres. Each Lot contained an area of 4,055 m² before resumption and 4,008 m² after resumption. The land is zoned Future Urban under the provisions of the City of Brisbane Town Planning Scheme. The existing use of each property for acreage residential purposes is classified as a permitted use under that zoning. Each parcel is generally surrounded by acreage residential properties.
All town services are available to the area which is well served with retail, commercial and community facilities. Access to the Brisbane CBD is very good via the South-East Freeway and Logan Road.
There are some distinguishing features which are worth noting in respect of each Lot.
112-118 Padstow Road, Lots 64 and 65 on RP 37944 (the “Lees’ land”): The frontage of Lot 64 is at the level of Padstow Road and the Lot is virtually level, with a gentle cross fall to the west. It also falls in a south-westerly direction at the rear. The property has been cleared. An earth mound was constructed on the land which was subsequently resumed and on portion of the adjacent land to a height of between 1 and 1.5 metres. There is a substantial two level brick and tile roofed dwelling on Lot 64, set back approximately 84 metres from the front boundary and therefore not near the resumed land.
Lot 65 is a level site, the frontage of which is level with Padstow Road. It is divided diagonally across the south-western corner by an open cut drain through which flows the discharge from a three pipe culvert under Padstow Road. The outlet to the culvert is on the balance land and is stone pitched. The creek line and the south-western corner of the land is covered with poor quality timber and lantana. Most of the Lot has been cleared. The earth mound on Lot 64 continued on the frontage of Lot 65, east of the open cut drain.
At the start of the hearing it was thought that Lot 65 was subject to an easement in favour of the Commissioner of Main Roads registered on 11 June 1971 (see Exhibit 11), but the easement was surrendered early in 1996. The surrender was registered on 8 March 1996, eight months before the date of resumption.
The only improvements on the land which was resumed from Lot 65 were the earth mound and a timber paling fence 1.8 metres high along the 13 metre frontage to the west of the open cut drain.
124 Padstow Road, Lot 63 on RP 37944 (the “Hansens’ land”): The land is at road level at the front and is virtually a level site.
The improvements on the land which was resumed comprised:
a bitumen driveway approximately 5 metres wide accessed via a piped crossing;
chain wire fencing on round timber posts and top rail to the front boundary and chain wire fencing on round timber posts to the side boundary;
a rock edged garden with shrubs and ground covers, and micro irrigation, on the eastern side of the driveway (described by Mr Wood as “in reasonable order”);
a concrete and rock edged garden with mounding, and shrubs and ground cover in poor condition, and micro irrigation, on the western side of the driveway;
a metal sign on two posts indicating the business of Hansen Photography, together with a light featuring the sign.
On the balance land is a lowset brick and tile roofed four bedroom dwelling set back approximately 58 metres from the front boundary. A detached brick building is located in front of the house and is used as a photography studio.
130 Padstow Road, Lot 62 on RP 37944 (the “Smiths’ land”): The land is at road level at the front and in its original configuration had a slight cross fall to the west.
The improvements on the land which was resumed comprised:a 1.4 to 1.5 metres high brush fence returning to the entrance driveway to electronically operated lattice vehicular gates and lattice pedestrian gateway, and a communications system and lights on the brick columns supporting the driveway gates;
a bitumen driveway and crossing providing vehicular access;
a garden tap adjacent to the fence line on the eastern side of the driveway;
two shrubs in a line of shrubs on the western side of the driveway;
side fencing comprising chain wire on metal posts to the eastern side and chain wire on timber posts to the western side.
Improvements on the balance land comprise a two level, five bedroom brick and tile roofed dwelling in landscaped surroundings and ancillary improvements (including tennis court, pool and spa). The dwelling is set some 70 metres back from the boundary with Padstow Road.
Highest and best use of the parent parcels
In his valuation reports prepared for the claimants about each parcel, Mr Malcolm McLennan, a consultant valuer employed by Heron Todd White, stated that there is interest in the local area for properties suitable for development for townhouses. The proximity of each parcel to the city makes the land suitable for such a development. Ultimately an integrated development retaining the house on each property will, in his opinion, occur. (Exhibit 5). But he considered that, given the standard and relatively recent construction of houses, development would be “well down the track”. Mr McLennan also acknowledged that the Council would be reluctant to allow town house development with access to Padstow Road. Rather it would be looking to have the properties developed to another road. Options would include developing the three properties together or amalgamating with parcels with access from Bleasby Road. These options, while possible, were not advanced as being likely. He had approached the valuation on the basis that, in a practical sense, the highest and best use of the parcels was their present use.
Mr John Wood, a valuer who prepared valuation reports in respect of each property for the constructing authority, considered that the highest and best use of each parcel was for the private single-unit residential purposes for which the land is currently used. He noted, however, that the Lees’ land has potential at some future time for town-house development. This potential is restricted by the current zoning and by the presence of the major open-cut drain across the south-west corner of Lot 65. The potential for future townhouse development was, in his opinion, remote.
Mr McLennan considered that the presence of the Bulimba Creek tributary drain on the western side and across the south-western corner of Lot 65 would have little effect on its value as a residential site given that it could be removed at no great expense. In any case, there is plenty of room to build a house elsewhere on the parcel and he thought that some people might consider the creek frontage to be attractive. The drain may have some effect on the development potential of Lot 65 but, in Mr McLennan’s opinion, development of that property is “well down the track”.
Although the valuers seemed to share a view about the development potential of the subject parcels, Mr Victor Feros, a town planner called by the claimants, suggested that the highest and best use of the land was for townhouse development. He concluded, from a town planning point of view, that a range of factors (including the current zoning, level topography, convenient accessibility to the CBD, good accessibility to local retail and commercial facilities at the intersection of Padstow and Warrigal Roads, the existing nature of development on the land, and the size of each parcel) made the land suitable for such development. He considered that an astute redesign of the sites could be made to accommodate the existing residences. Alternatively, the land could be subdivided into suburban residential allotments making provision for the retention of existing dwellings in the layout (Exhibit 9). Counsel for the claimants noted, however, that use of the land for townhouse development is prohibited in the Future Urban zone and that achievement of that use of the land would require rezoning.
Even with rezoning there would be setback, size and access requirements which would make it difficult to use single parcels for townhouse development. The subject parcels are smaller than the 5,000 m² minimum area prescribed in the relevant development standard in the City of Brisbane Town Plan. It may be possible, however, to have that standard relaxed (see Planning Policy No 7.28). It would be necessary to construct a road from Padstow Road through the allotment to provide access to townhouses on a subdivision. That road would provide a single entry/exit point. Such a road would have to meet planning scheme requirements for certain dimensions, and it is unlikely that developments on the single parcels (which are narrower, as well as smaller, than the required standard) could accommodate all the requirements. Mr Feros pointed to the potential for planning requirements to be applied flexibly, but agreed that the planning authority would be looking to a developer to amalgamate as many of the parcels as possible to minimise the number of access points to Padstow Road from these developments. He suggested that, in the case of the Lees’ land, a properly managed entry/exit point could be developed which would not require a single exit/entry point at Padstow Road. Mr Feros suggested that the number of townhouses which might be constructed on each parcel would be fewer than might otherwise be allowed because of the need to accommodate the road entry/exit and the existing dwellings, and the need to achieve an adequate level of amenity in relation to such things as the level of noise from passing vehicular traffic. He concluded that the sites “are heavily constrained both in relation to site access which is now rendered more difficult and has been rendered more and more difficult over a period of time, and secondly in relation to noise, the noise associated with the increased volumes and increased usage, but more importantly the increase in geometry of the roadway from two lanes to four lanes.”
Despite those constraints, Mr Feros suggested that a purchaser of the parent parcels at the date of resumption might have sought to realise the development potential of the land within three to five years. He pointed to three townhouse developments in relatively close proximity to the subject parcels (Exhibit 15). At least one of those sites already had appropriate zoning.
I am satisfied, however, that at the date of resumption, the highest and best use of each of the parent parcels was for single-unit residential purposes and that a purchaser would have paid little, if any, more money for some long-term potential for town house development.
Determining whether compensation is payable
In his valuation reports, Mr McLennan assessed the amount of compensation claimed by each of the claimants by a “piece-meal” method. The components for the calculations included a value of the land taken, an amount for injurious affection to the retained land, and the cost of replacing or reinstalling features along the road frontage on the resumed land.
The constructing authority contended that no injurious affection has resulted to any of the balance land from the resumption or the carrying out of the works. There was no dispute that the narrow strip of resumed land was used for part of the footpath and that there is no road pavement on the resumed land.
The constructing authority also submitted, in reliance on Mr Wood’s valuation reports, that no compensation was payable because the value of the land taken was more than offset by the enhancement to the value of the balance land as a result of the various works undertaken in connection with the upgrading of Padstow Road.
The issues of injurious affection and enhancement are considered later. The first issue is the value of the land taken.
Value of resumed land
The area resumed from each parcel was 47 m². Mr McLennan valued the resumed land at $3,760.00, applying an average value of $80/m². He based the valuation on his estimate of the value of land at 191 Padstow Road.
Mr Wood valued each parcel of resumed land separately and applied a value based on other sales evidence, which was common to all of the parent parcels. In summary he valued:
the land resumed from Lot 65 at $1,354.00, comprising 17 m² of sound land at $62.00/m² and 30 m² of “drainage easement” at $10.00/m² (based on a value of the parent parcel as affected by the easement of $150,000.00)
the land resumed from Lot 64 at $2,914.00, comprising 47 m² at $62.00/m² (based on a value of the parent parcel of $250,000.00)
the land resumed from Lot 63 at $2,914.00, comprising 47 m² at $62.00/m² (based on a value of the parent parcel of $250,000.00)
the land resumed from Lot 62 at $2,261.00, comprising 47 m² at $63.00/m² (based on a value of the parent parcel of $255,000).
As noted earlier, there was no easement over Lot 65 at any time relevant to the matters in issue in these cases. Mr Wood said, however, that his opinion about the value of the land resumed from Lot 65 had not changed because the presence of the open-cut drain on the land affected its value, irrespective of the easement.
Whichever approach is taken to determining the result in these cases, it is essential to assess the value of the land resumed. Accordingly, it is appropriate to consider all the sales evidence presented.
Sales evidence: 191 Padstow Road: The property has an area of 1.196 hectares. Mr McLennan noted that there was a basic three bedroom house on the land. The property was sold in March 1991 (some 5½ years before the date of resumption) for $530,000.00. Mr McLennan relied on a listing for sale at $800,000.00 (an average of $66.89/m²), and recorded a report that the owner had refused an offer of $650,000.00. There was evidence, however, that the property was sold in November 1997 (one year after the date of resumption) for $750,000.00, an average price of $62.70/m². Mr McLennan agreed that the sale price of the land could be relied upon as a guide to the value of the land, and thought that it supported his valuation of the parent parcels (and, hence, the resumed land) at $80/m². The sale land is almost opposite the parent parcels and had a comparable building elevation. Mr McLennan considered that its frontage to Padstow Road gave it the same disability as those parcels. He pointed to the relative size of the sale land - almost three times the area of each parent parcel - and observed that significantly larger blocks usually attract prices which are lower on a value per square metre basis than smaller blocks. On that basis he valued the parent parcels at a higher rate per square metre than the sale would otherwise suggest is appropriate, making the adjustment in rates per square metre in reliance on his experience as a valuer.
Although he considered that the 1991 purchase price would have been much lower than the value of the land at the date of resumption, he did not consider that prices had changed much since the date of resumption and the November 1997 sale date. Accordingly, he accepted that the sale price could be applied to that land at the resumption date. Mr Wood agreed that there had not been a great deal of change in values in the year between November 1996 and November 1997. He also agreed that the sale price was of some assistance in deriving the value of the subject parcels. The issue was what development potential, if any, was reflected in that price.
Mr Wood considered that the sale land was a superior property to the parent parcels because of its size and far greater potential for redevelopment. He agreed that, as a general rule, a lower price is paid per square metre for larger blocks than for comparable smaller blocks. But he did not think that that general rule was borne out by the sales in this area. More importantly, he said that there was an application before the Council for the rezoning and subdivision of the land. Because there is alternative access to the land from Arcadia Street across adjoining land which was developed for townhouses, it has potential for townhouse development. Mr Wood, however, had not seen the application and did not know the details of any possible alternative access arrangements. There was no suggestion that direct access was available from a public road other than Padstow Road.
Mr McLennan was not aware that, in March 1998, the new owner of the land had made a planning application for a town house development on the site. He considered that, if the contract had been subject to the purchaser obtaining rezoning approval, the price would be lower than if the land had been rezoned previously. If the contract was conditional on approval being obtained, and the purchaser could withdraw if approval was not given, the purchaser would pay a higher price. Mr McLennan thought (correctly, it seems) that the land had access only to Padstow Road, but considered that, given the size of the parcel, the Council would be more agreeable to a town house development on that land.
There are a number of features of the sale property which mean that it is less comparable with the subject parent parcels than some other sale properties. The imprecision of the evidence about its development potential and the factors which may have influenced the sale price also suggest caution in placing too much reliance on that sale. It is best to consider it in the context of the sales of the other properties.
In arriving at his valuation of the resumed land, Mr Wood analysed seven sales of comparable land between July 1994 and March 1996. Two of the sale parcels are east of, and on the same side of Padstow Street as, the parent parcels. The other five parcels have frontages to Bleasby Road (the road parallel with and immediately to the north of Padstow Road) and are in the same city block as the parent parcels. All seven parcels are individual rectangular parcels (or pairs of parcels) with the same dimensions and hence the same areas (4,047 m²). They are comparable to the parent parcels in dimensions, location and other relevant respects. Sales 1, 2, 5, 6 and 7 are zoned Future Urban, the same zoning as the parent parcels. Sales 3 and 4 are zoned Residential BR3. The relevant features of each are summarised below.
242 Padstow Road: The property is elevated with a southerly aspect. It is situated three allotments to the east of the junction of Padstow and Warrigal Roads. The site is at road level for approximately half its depth, then falls gently to the rear. There is a slight cross fall in an easterly direction. Although dwellings adjoin the parcel, it is opposite a service station and a State school.
The property was acquired in October 1994 for $290,000.00 and was sold in October 1995 for $308,000.00, an increase of 6.2 per cent. The site was cleared after the latter purchase and a brick building for residential purposes was constructed. The sale represents an average land value of $76.10/m².
Mr Wood described the land as superior to the parent parcels, primarily because it is a more elevated, good level site. Mr McLennan described it as a “very good indicative sale” and “very indicative of the value of the subject block”. He did not consider it superior to the parent parcels and felt that, from a residential point of view, it had nothing more to offer than those parcels.
Apparently at the date when the land was sold, that part of Padstow Road was four lanes wide with concrete kerbing and channelling, a footpath but no parking lane. Mr McLennan accepted that, if a “before and after” method of valuation was being applied, the sale would assist in determining the “after” value of the balance land. But as that method of valuing was inappropriate given the small area and proportions of land taken in these cases, the use of the sale information should not be so confined.
I am satisfied that the sale land was comparable to each of the subject parent parcels.204 Padstow Road: The property is elevated with a slight cross fall to the west. It is at road level at the front and has a very gentle fall to the rear. A group of shops (including a video shop and a delicatessen/cafe) adjoins it on the corner allotment to the east (at the intersection with Warrigal Road). There are dwellings to the west. Apparently there is some screening between the shops and the sale land, but the land adjoins a delicatessen/cafe with a commercial kitchen which, Mr Wood agreed, is not a positive attribute.
The land has improvements which, at the date of sale, comprised a relatively small lowset brick and tile dwelling (approximately 40 years old) with a detached brick and tile roofed single lock-up garage, a concrete and bitumen driveway and a garden. Mr Wood estimated the maximum added value of the improvements to be in the vicinity of $45,000.00.
The property was sold in July 1994, more than two years before the date of resumption, for $270,000.00. Because, in his opinion, the dwelling is “substantially below the standard expected for this priced property”, Mr Wood stated that the full purchase price could be regarded as land value, at an average of $66.72/m².
Mr Wood described the sale land as more elevated and superior to each of the parent parcels. Mr McLennan described it as “a very comparable sale”. It is not superior to the parent parcels because, given the slope of the road and the proximity to the intersection roundabout, vehicles (including trucks) would be changing gears near the land. Rather it is “reasonably comparable”, that is, “comparable enough not to differentiate greatly between the values”. Mr McLennan agreed that the house would have added no value to the land, but considered that there would have been an increase in the value of the land in the period between the date of sale and November 1996. Mr Wood conceded that between 1994 and November 1996 there was “probably a slight increase” in the value of land in the area, but it would have been “only marginal” and not as much as 6 per cent. In his opinion, there was not “a great deal of movement in that period of time in values in that area”.
I am satisfied that, having regard to its location, the sale land is comparable, but not superior, to the subject parent parcels and that the value of the land as at the date of resumption would have been somewhat higher than the value at the date of sale in July 1994.Bleasby Road, corner with Warrigal Road: The land comprises two parcels with a total area of 8,093 m². It is an elevated site at and slightly above the level of the fronting roads. There is an extensive outlook in the northerly and north-westerly directions, where there are gentle falls. Warrigal Road is of bitumen formation with gravel verges. Bleasby Road is bitumen kerb to kerb.
On the adjoining land to the south are shops (the same as adjoin sale 2 to the east). There is vacant land on the western side and dwellings opposite.
The property was sold in March 1996 for $750,000.00, an average of $375,000.00 per allotment and $92.67/m².Bleasby Road: The land is a vacant parcel with an area of 8,093 m² adjoining the western side of the sale 3 land. It is of similar contour but slightly lower elevation than that adjoining land. Mr Wood described it as good quality land for redevelopment purposes.
The land was sold in March 1996 for $750,000.00, an average of $92.67/m².
Sales 3 and 4 need to be considered together. They were sold to the same purchaser in 1996 and it seems that the purchaser was amalgamating blocks for the purpose of redevelopment. Townhouses were subsequently constructed there. The Residential BR3 zoning allowed townhouse development as an as-of-right use of the land.
Mr Wood described the Sale 3 and Sale 4 parcels as having superior residential amenity and being superior to each of the parent parcels. Mr McLennan, said that the sales show what land in the area is worth. Although they are not out of line with the other sales, he did not rely on them because the land was not comparably zoned to the parent parcels.
I am satisfied that the zoning, size and location of the Sale 3 and 4 parcels make them more valuable than each of the subject parent parcels.
112 Bleasby Road: The land is elevated slightly above the level of the fronting road and rises gently to the rear. It has a gentle cross fall to the west and a northerly aspect. Good quality dwellings adjoin and surround the land. It is located in a treed area with a pleasant residential amenity.
The land was sold in July 1995 for $365,000.00, an average of $90.10/m².
Mr Wood described the sale land as superior to each of the parent parcels. He considered that Bleasby Road has a superior residential amenity It is, in his opinion, “quite a desirable residential setting” and is “substantially superior” to Padstow Road, being a quieter, green, treed location. Consequently, parcels of residential land in Bleasby Road have higher values than comparable parcels in Padstow Road. He considered that owners of Bleasby Road properties have a greater prospect of obtaining approval from the Council for townhouse development on that land. Mr Wood estimated that 4,000 m² parcels in Bleasby Road would be worth “substantially more” than $40,000.00 above the price of comparable parcels in Padstow Road.
Mr McLennan also considered that a parcel of residential land in Bleasby Road would be superior to, and hence be worth more than, comparable residential land in Padstow Road. He agreed that, generally speaking, properties in Bleasby Road are superior to properties fronting Padstow Road in terms of residential amenity. Properties in Bleasby Road may also have greater potential for townhouse redevelopment.
I am satisfied that the sale land was superior to, and hence more valuable than, each of the subject parent parcels.120 Bleasby Road: The land has an area of 8,094 m², is slightly above road level at the front and rises to the rear. It has a gentle cross fall to the west. The land adjoins the western side of the sale 5 land, and is of slightly lower elevation. It is an extensively treed property in a green setting and has quiet residential amenity.
In Mr Wood’s opinion, the improvements comprising an older large lowset timber dwelling and outbuildings add little value to the land. The property was sold in January 1995 for $630,000.00, an average of $315,000.00 per allotment and $77.83 /m². Mr McLennan agreed that the price reflected land value only.
Mr Wood described the sale land as superior to each of the parent parcels. Again Mr McLennan considered that residential blocks in Bleasby Road would be worth more than similar land in Padstow Road. He also thought that the value of the land would have increased between the date of sale and November 1996.
I am satisfied that, although the land may otherwise be comparable, its location makes it superior to that of the parent parcels.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.
In answer to the first question, the constructing authority submitted that “damage caused by ... the exercise of any statutory powers by the constructing authority” within the meaning of s 20(1)(b) of the Acquisition of Land Act is restricted to damage flowing from the activities of the constructing authority on the land taken from the claimant. The activities on the resumed land were confined to the construction of a footpath. Because the injurious affection for which the claimants claim compensation does not flow from activities on that land, the claimants’ remaining land has not been injuriously affected in the sense contemplated by s 20(1)(b).
The constructing authority appeared to accept the principle that, where the resumption forms an integral and inseparable part of the resumptions necessary for the construction of the road, compensation is payable for damage flowing from the use made of the land acquired in conjunction with other land acquired for the same purpose because, in a practical sense, a separation of the damage flowing from the use of the lands taken cannot be made. It submitted, however, that these three cases cannot be brought within that principle because, in each case, the lands taken were used solely for the construction of footpath works. The damage for which a claim is made flows from works carried out on, and the use made of, the road reserve as it existed before the resumption.
The answer to the second question involves the resolution of disputes about various factual matters, including whether there has been an appreciable increase in noise from traffic on the widened road. Counsel for both parties agreed that if I were to find, as a matter of law, against the claim for injurious affection arising from activities on the road reserve then the evidence in relation to those activities is irrelevant and there need be no assessment of injurious affection.
I have concluded that the claims for injurious affection fail at the legal threshold. In summary I feel compelled to reach that result because that aspect of the claims for compensation can only succeed if the statute permits it. The preponderance of legal authority is to the effect that compensible injurious affection can occur only where the activity complained of is on the resumed land. Even if a broader view is taken, the footpath work undertaken in part on the resumed land was not integral and inseparable part of the resumptions necessary for the construction or upgrading of the road where a separation of the damage flowing from the use of the lands taken cannot be made. Because that conclusion is so critical to the outcome in these cases, it may be of interest to the claimants if the reasoning leading to that conclusion is set out in more detail.
Statutory provisions and the interpretation of them: The entitlement to compensation for injurious affection is conferred by statute. Consequently, the scope or limit of that entitlement must be determined by reference to s 20(1)(b) of the Acquisition of Land Act which provides that compensation may be paid for the damage caused by “the exercise of any statutory powers by the constructing authority otherwise injuriously affecting such other land”. Those words can be contrasted with the provision in s 20(3) relating to enhancement of the value of the interest of the claimant in any land adjoining the land taken by “the carrying out of the works or the purposes for which the land is taken”.
In summary, the words of s 20(1)(b) have been construed as restricting the damage to that flowing from the activities of the constructing authority on the land taken from the claimant. By contrast, s 20(3) has been held to refer to enhancement from the scheme rather than merely the activity on the land taken from the claimant: see Zoeller v Brisbane City Council (1973) 40 CLLR 25 (LC) and 198 (LAC), The Crown v RH and JM Corbould (1986-87) 11 QLCR 50 at 57 (LAC).
The relevant principle to be applied when interpreting s 20(1)(b) is found in Edwards v Minister of Transport [1964] 2 QB 134, [1964] 1 All ER 483, where the English Court of Appeal ruled on the scope of s 63 of the Lands Clauses Consolidation Act. That section stated:“In estimating the ... compensation to be paid by the promoters of the undertaking, ... regard shall be had ... not only to the value of the land to be purchased or taken by the promoters of the undertaking, but also to the damage, if any, to be sustained by the owner of the lands by reason of the severing of the lands taken from the other lands of such owner or otherwise injuriously affecting such other lands by the exercise of the powers of this or the special Act, or any Act incorporated therewith.”
The relevant passage was “otherwise injuriously affecting such other lands by the exercise of the powers” - words which are almost identical to those used in s 20(1)(b). The “other lands” in the Edwards case were the claimant’s lands which were not taken by the promoters. The issue was whether the claimant was entitled to receive compensation for injurious affection to the remainder of his property as a result of the construction and future use of the new trunk road lying both inside and outside the boundaries of the taken land.
The principal judgment was delivered by Harman LJ who reviewed previous decisions and texts and concluded that “if some of my land be taken, I may claim compensation for the deterioration of my land which is left by what is done on the part which has been taken” ([1964] 1 All ER at 487). He agreed that the test is “whether that which is done on the claimant’s land has caused injury to the claimant’s other lands. All the cases are, as I see it, one way.” (at 489) He considered various cases which illustrate “the principle that the damage for which one may claim is damage to one’s retained land in respect of acts done on the land of which one has been deprived and not further” (at 491). Donovan LJ agreed with Harman LJ. He considered that the “true construction” of s 63, when it speaks of damage “injuriously affecting such other lands by the exercise of the powers of this or the special Act” is that the section refers “only to damage due to things happening on the land compulsorily taken. The contrary view is also against authority.” (at 493) Russell LJ, agreeing, wrote that the “true view” of the construction of s 63 “is that it relates only to powers exercised on land taken from the claimant” (at 494).
Harman LJ and other judges recognised that, in some cases where activities are carried out both on the land taken and other land, it will be difficult to determine which part of the damage can be attributed to activities on the land taken. Donovan LJ gave a concrete example which is relevant to the present cases:“If a public authority acting under statutory powers constructs a highway opposite my house but takes none of my land for the purpose, I cannot claim compensation for any diminution of value of my house caused by the noise and other inconvenience inflicted by the traffic. If, on the other hand, part of my frontage is compulsorily acquired and made part of the new highway, the position is different.” (at 493)
He continued:
“In assessing this latter claim, however, regard must be had only to things done on the land taken from me. Where a highway is concerned, this restriction is, of course, artificial. The noise of traffic will begin well before it reaches the plot of land which was formerly part of my frontage and it may continue long after the traffic has passed it. All the noise will contribute to any diminution of the value of my house; and it will be very difficult at times to say how much of that diminution of value is due to what the traffic does simply on the land taken from me.” (at 493)
It is clear that the principle enunciated in the Edwards case has been applied consistently in Queensland to the interpretation of s 20(1)(b) of the Acquisition of Land Act. In Vanhoff Pty Ltd v The Commissioner of Main Roads ((1992) 14 QLCR 331 at 340, see also 341), for example, the Land Appeal Court repeated the finding of the Land Appeal Court in The Crown v RH and JM Corbould ((1986-87) 11 QLCR 50 at 57) that:
“It is well settled that the words ‘the exercise of any statutory powers by the constructing authority’ contained in paragraph (b) of subsection 1 of the section restrict damage to that flowing from the activities of the constructing authority on the land taken from the claimant.”
Although there have been cases where, on the facts, courts have drawn a distinction from cases where the principle applies, I am aware of only one case in which the applicability of the principle in Queensland has been queried. In the course of obiter comments in Barns v Director-General, Department of Transport (unreported decision of the Land Appeal Court dated 15 August 1997) Fryberg J wrote:
“[T]his is neither the time nor the place to consider whether Edwards represents the law of Queensland. It has been applied or distinguished in a number of cases in this court, but as far as I am aware in none has its correctness or applicability in this state been expressly considered. It has always been assumed to have been correctly decided and to be applicable. In particular, in Vanhoff Pty Ltd v. Commissioner of Main Roads the appellant assumed its correctness and sought to distinguish it. The Court in that case was not invited to depart from Edwards and did not do so, although the judgment raised a number of factors which suggest that it is questionable whether Edwards represents the law. Whether it is open to this Court to re consider this matter and whether that ought to be done, are questions which can await another day.” (at 5)
I am bound to follow the decisions of the Land Appeal Court in which the principle in the Edwards case has been applied in Queensland. Unless those decisions can be distinguished because of some special circumstances in these cases, the claims of injurious affection must fail.
The broader view: The claimants sought to avoid the effect of the line of authorities following the decision in the Edwards case by relying on passages from judgments of members of the High Court in The Commonwealth v Morison (1972) 127 CLR 32. That case, however, is distinguishable from these three cases on both the statutory and factual bases.
In the Morison case the relevant section of the Lands Acquisition Act 1955 - 1966 (Cth) provided:“23(1)In the determination of the amount of compensation payable in respect of land compulsorily acquired under this Act, regard shall be had to ...
(c)the enhancement or depreciation in value of the interests of the claimant, at the date of acquisition, in other land adjoining or severed from the acquired land by reason of the carrying out or the proposal to carry out the public purpose for which the land was acquired.”
Under s 23(1)(c) both enhancement and depreciation in value were assessed by reference to the carrying out or proposal to carry out “the public purpose for which the land was acquired”. So the inquiry was directed to the purpose of the acquisition rather than the use to which the acquired land was put. For that reason the words of s 23(1)(c) can be contrasted with s 63 of the Lands Clauses Consolidation Act and s 20(1)(b) of the Acquisition of Land Act, and can be seen to be similar to those in s 20(3) of the latter Act.
Most of the Justices discussed the significance of the differences between the wording of that provision and those on which decisions in the Edwards line of authority relied. The two to draw the distinction most clearly were Menzies J and Gibbs J.
Menzies J considered that the decision in the Morison case turned upon the meaning to be attributed to s 23(1)(c). It is in that context that one should read his rejection of the Commonwealth’s contention that the depreciation in value to which regard is had should be confined to depreciation resulting from the actual use of the land taken without regard to the use of the development as a whole. His Honour stated:“I do not think this section requires artificiality of the sort that the Commonwealth construction would demand. Regard is to be had to the depreciation in value of retained land by reason of the proposal to carry out the public purpose for which land taken was acquired and the natural sense of this provision requires that regard should be had to the whole purpose for which land was acquired and not merely to so much of that purpose as is to be fulfilled upon the land taken from a single land owner.” (at 44)
He distinguished the decisions about s 63 of the Land Clauses Consolidation Act in the following terms:
“If s 23(1)(c) were in pari materia with the English section, these authorities might be of overwhelming weight, but it is not. No good purpose would be served by discussing the language of s 63 ... . It is sufficient to say that its language is quite different from that to be found in s 23(1)(c).” (at 45)
For Gibbs J, the sole question to be answered in the appeal was whether the trial judge was right in assessing compensation under s 23(1)(c) on the basis that the assessment of the depreciation in value of the retained land was to be made by reference to the proposed development as a whole rather than the proposed use of the land acquired (at 55). In his opinion, the words of s 63 of the Lands Clauses Consolidation Act upon which the English decisions were given are “materially different from those of s 23(1)(c)” (at 56). The “exercise of powers” referred to in s 63 appeared to him:
“to mean the particular exercise of statutory powers by which the land in question was taken. Since the section referred to injurious affection resulting from the exercise of the powers to take the land, it is understandable that it was held to limit compensation to the damages resulting from what was done or expected to be done on the land actually taken. In other words, it is natural to confine damage resulting from the exercise of a power of resumption to damage caused by activity on the land resumed. However, depreciation caused by carrying out the public purpose for which land was acquired may be more extensive than depreciation caused by the use of the land acquired in conjunction with other land, and in carrying out the public purpose use may be made of land other than that resumed.” (at 56-7).
Gibbs J concluded that all of the statutory provisions considered in other cases “are distinguishable from s 23(1)(c)” (at 58). He pointed out that statutes ought to be construed according to their own terms and not upon the assumption that parliament intended to give the words in Australian Statutes the same affect as that which authorities had held should be given to the different words of the English and Canadian statutes (at 60-61). He concluded:
“The ordinary and grammatical meaning of the words of s 23(1)(c) is in my opinion that the depreciation to be considered is that caused by reason of the carrying out or the proposal to carry out the public purpose for which the land was acquired. It is not implicit in their meaning that the public purpose should be carried out, or should be proposed to be carried out, on the land acquired.” (at 61).
Barwick CJ and Walsh J, while acknowledging the distinction between the statutory provisions, did not make as firm a stand on the implications of the difference. For Barwick CJ, the appeal in Morison turned in the meaning and application of s 23(1)(c). He considered that the formulae of s 23(1)(c) and s 63 of the Lands Clauses Consolidation Act “are not identical” and “where the accomplishment of the stated public purpose involves the use of other land in conjunction with the acquired land, divergence of result might possibly arise in the application of s 23(1) as compared with the application of s 63 in identical circumstances, particularly if the statutory powers to which that section refers are limited to the use of the acquired land” (at 39). He did, however, later express the opinion that “whilst the formula of s 23(1)(c) is not in identical terms with that of s 63 of the Lands Clauses Consolidation Act, the principle that the dispossessed owner is only entitled to compensation for the depreciation in value of his retained lands adjoining or severed from the acquired land which is due to the work done on the acquired land or to the use of that work is applicable to assessments made under s 23” (at 41-2). Thus, although he did not regard s 23 as a mere attempt to reproduce s 63, he was not prepared, because of the difference in the expression of the two provisions, to regard the decisions upon s 63 as necessarily inapplicable to the assessment of compensation under s 23 (at 42).
For Walsh J the question in dispute in the Morison case concerned the proper construction and the operation in the circumstances of the case of s 23(1)(c). He distinguished that provision from s 63 of the Land Clauses Consolidation Act by observing that the latter provision “refers to damage sustained by an owner of land by reason of the severing of the lands taken from the other lands of such owner, ‘or otherwise injuriously affecting such other lands by the exercise of the powers of this or the special Act or any Act incorporated therewith’ ” (at 49). Although it seems that he did not consider the textual differences between various statutes to be very significant, he thought there was a measure of support for the view that they are distinguishable (at 49). He did not, however, consider that the English decisions lay down an inflexible rule that the amount of depreciation caused by activities on the taken land must be fixed separately. Rather, where it can be done, there should be an appropriate dissection of the total amount of damage (at 53).
The effect of those judgments was to draw a distinction between the terms of s 23(1)(c) and the terms of the legislative provision which have been interpreted in the English cases and which are continued in the provision on which the present three cases turn. For that reason alone, the Morison case does not assist the claimants in these proceedings.The factual circumstances in the Morison case were also quite different from the circumstances in the present cases. The Commonwealth compulsorily acquired 65.5 acres of land for the purpose of extending an airport. The land taken formed part of a grazing property. The purpose of the resumption was not merely to do work on the resumed land but to extend the aerodrome so as to fit it for a use that had previously not been possible, or at least was not possible on the scale which the extension enabled. The work done on the acquired land was the paving of an extension of a runway for 80 or 90 feet, with a further 200 feet as a “premature touch down area”, the placement of navigational aids and the construction of a new main taxiway. Barwick CJ concluded that:
“These works had no utility if not used in conjunction with the existing aerodrome and its facilities. But so used, a considerable increase in the depreciatory effect of the existing aerodrome and its use was clearly to be expected. There can be no doubt that the use of the airport as a jet airport has had a depreciatory effect on the retained land, its proximity effecting privacy, its noise reducing attractiveness, pleasantness and general amenity.” (at 35)
Barwick CJ considered that:
“In a real sense the results of the use of constructions on the combined areas can properly be said, in my opinion, to flow from the use of the constructions on the acquired land, once it is clear that it is not possible to refer any part of such results exclusively to the use of the constructions on the acquired land. After much consideration, I see no practical way in which in the facts and circumstances of this case, the effect of the use of the constructions on the acquired land could be isolated so that it related exclusively to such use.” (at 39)
He went on to state that “the depreciatory factors, deriving from the use of the extended aerodrome as a jet airport, were the result of work done on the acquired land and its use in conjunction with other land and the works thereon” (at 41).
Walsh J described the public purpose of the land acquisition as the extension of the airport in order that it might be used for the operation of jet aircraft and the training of pilots. “In the achievement of that purpose the use of the land acquired from the respondent was not intended to play a minor part in comparison with the use of other land. On the contrary it was solely or primarily by the use of the respondent’s land that the purpose of extending the airport so as to permit the desired operational changes was to be accomplished.” (at 51)
The facts in the present three cases are quite different. Part of a footpath and none of the highway has been constructed on the resumed land. All of the highway, kerbing and channelling as well as part of the footpath are in the previously existing road reserve. This is not a case where, by analogy with the Morison case, part or all of a lane of the highway traversed the resumed land.
In my opinion, because the decision in the Morison case was made on a statutory provision and factual circumstances which are distinguishable from the statutory provision and factual circumstances in these cases, that case provides no assistance to the claimants.
The claimants also submitted that much turns on what is a “road” for present purposes. They point to decisions in which English Courts held that a road, generally, includes its footpaths. There is, for example, authority for the propositions that an unpaved footpath is part of a turnpike road (Loveridge v Hodsoll [1831] 2 B & Ad 602); a motor vehicle that was parked on a footpath was standing on the road so as to cause any unnecessary obstruction of the road (Bryant v Marx (1932) 147 LT 499); because a footpath is a highway and a highway is a road, a footpath falls within the definition of a road (even if it was not a road within the ordinary meaning of that word) and it was an offence to drive a motor vehicle on a footpath (Land v Hindmarsh [1986] RTR 271); and a pedestrian using a footpath pavement is using a road to which the public had access, as the pavement provides a means of passage for pedestrians going up and down the named Road (Price v Director of Public Prosecutions [1990] RTR 413).
The decision in each of those cases turned upon the words of specific statutes. But that is not the only reason for distinguishing them for the purpose of dealing with the present cases. The resumed land was taken from the claimants for “road purposes”. There was no dispute that, whether or not the footpath is part of Padstow Road, the land was properly resumed for “road purposes”. It may be that the part of Padstow Road along which motor vehicles travel could function without a footpath. That is, a footpath is ancillary to the road but not essential to the use of the road surface for vehicular traffic. But even accepting for present purposes that the footpath is part of Padstow Road does not mean that the claimants must succeed, when their claims are considered in light of the judicial decisions just considered.
Mr Neil Viney, a traffic engineer called by the claimants, expressed the professional opinion that entering the properties from Padstow Road is more hazardous after the roadworks because of the relatively narrow width of the kerb lane. Drivers must decelerate for a tight turn into their properties and vehicles following them, including trucks, have to decelerate or change lanes. Before the road works were done, people entering the parent parcels could use the gravelled edge of the road. The creation of the median strip in the centre of Padstow Road has limited the turning options of persons driving out of the parent parcels.
Mr Wood considered that the replacement of the gravel verge with kerbing constituted an enhancement, even though he conceded that it might now be more difficult to enter or leave the properties and there is no longer a breakdown or parking lane.
The lack of a parking lane on the widened road does not seem to affect the balance land. People visiting the owners of the subject parent parcels did not use the grass verge for parking because each parcel was large enough, and each house was set back so far from the road, that people parked their vehicles on parts of the balance land.
Mr Wood considered that, in relation to each of the balance land properties, the carrying out of the works on Padstow Road and the resumed land “has enhanced the presentation of the property and accordingly its value”. He concluded that “enhancement has occurred to the value of the balance land by the completion of the roadworks and the upgrading of the fronting road and footpath and that such enhancement exceeds the value of the land taken” which he assessed, in each case, as “slightly in excess of 1%” of the value of the Lots before resumption. (Exhibit 11)
As noted earlier, he put the values of the parcels of resumed land at $1,354.00 for the Lot 65 land, $2,914.00 for the Lot 64 land, $2,914.00 for the Lot 63 land and $2,261.00 for the Lot 62 land. I have determined that each parcel was worth somewhat more than that.
Mr Hinson for the constructing authority relied on Mr Woods reports to show that enhancement in value to the balance land outweighs the compensation that would otherwise be payable.
Mr Cochrane for the claimants submitted that, although he could not say for certain that there was no enhancement, there was no valuation and no probative evidence that would enable this Court to put a price on the worth of the concrete driveways from the road to the balance parcels. He further submitted that the potential enhancement created by those driveways is offset, in part or in whole, by the fact that they are not wide enough and create an impediment to access.
Despite the imprecise and impressionistic nature of the evidence, I am satisfied that the improvements constructed on the resumed land and the road reserve at the frontage to each parcel of balance land enhance the appearance of each parcel, but the extent of that enhancement is substantially reduced by the restrictions on access to and egress from each property. The works undertaken on the balance parcels which are additional to the replacement or reinstatement of previous improvements also enhance the value of those parcels. Although the figures are necessarily somewhat arbitrary, I determine that the following amounts should be allowed for enhancement of the balance lands: $1,000.00 in relation to Lot 65, $2,000.00 in relation to Lot 64, $2,000.00 in relation to Lot 63 and $2,750.00 in relation to Lot 62.
Disturbance costs
The claimants also claimed reimbursement for legal and valuation costs which they incurred in lodging their claims for compensation. Such disturbance costs are often allowed in compensation cases.
Mr Cochrane argued that legal and valuation fees were properly incurred by the claimants, who could reasonably have been expected to take proper advice about whether they had claims which were worth pursuing. Mr Hinson pointed out that, although there was no evidence before the Court about legal and valuation fees, Mr Wood’s reports recorded that an advance of $2,150.00 had been paid in each case and there was no dispute about the quantum of those items. Mr Hinson then submitted that if I found that the balance land had been enhanced I would not allow as compensation the amounts referred to in Mr Wood’s reports. Although there was no direct evidence about the costs incurred by each party, the amount is apparently not in dispute between the parties and is within the range of what is reasonable and sometimes allowed by the Land Court.
The claimants in each matter are entitled to receive from the constructing authority the sum of $2,150.00 as compensation for legal and valuation expenses incurred by them in preparing and making the claims for compensation.
Conclusions
For reasons which given earlier I have reached the following conclusions:
(a)At the date of resumption, the highest and best use of each of the parent parcels was for single-unit residential purposes and a purchaser would have paid little, if any, more money for some long-term potential for town house development.
(b)At the date of resumption, each 47 m² parcel of land resumed from Lots 62, 63 and 64 was worth an average of $78/m² and a total of $3,666.00. The 47 m² parcel of land resumed from Lot 65 was worth $75/m², a total of $3,525.00.
(c)The claim for compensation for injurious affection to the balance land fails because s 20(1)(b) of the Acquisition of Land Act 1967 provides that compensation may be paid for the damage caused by “the exercise of any statutory powers by the constructing authority otherwise injuriously affecting such other land” and those words have been authoritatively interpreted to mean that compensible injurious affection can occur only where the activity complained of is on the resumed land. The only activity on the resumed land was the construction of part of a footpath. No injurious affection is alleged, and no compensation is sought, as a result of that exercise of statutory powers by the constructing authority.
(d)The constructing authority took all reasonable steps to replace or reinstate, to a comparable or higher standard, the improvements which were present on the resumed land. In almost every instance where the standard of some of the work was initially inadequate, repairs have been made. The only structure which remained in an unsatisfactory state at the date of the hearing was the western pillar supporting a gate on the driveway to the Smiths’ land. The only estimate of the cost to repair or substantially rebuild the pillar was $1,000.00. Although the fence on the Hansens’ land was not replaced, a treated timber border was put in its place at the request of the owners. It is appropriate to allow $500.00 for the notionally lost fence and the cracks in the concrete driveway and garden edging.
(e)The improvements constructed on the resumed land and the road reserve at the frontage to each parcel of balance land enhance the appearance of each parcel, but the extent of that enhancement is substantially reduced by the restrictions on access to and egress from each property. The works undertaken on the balance parcels which are additional to the replacement or reinstatement of previous improvements also enhance the value of those parcels. The following amounts should be allowed for the enhancement of the balance lands: $1,000.00 in relation to Lot 65, $2,000.00 in relation to Lot 64, $2,000.00 in relation to Lot 63 and $2,500.00 in relation to Lot 62.
(f)The claimants in each case are entitled to receive from the constructing authority the sum of $2,150.00 as compensation for legal and valuation expenses incurred by them in preparing and making the claims for compensation.
(g)Having regard to the amounts determined as the value of the land resumed, the amounts owing for repairs or loss of improvements, the amounts to be allowed for enhancement, and the agreed amounts of disturbance costs, the amounts of compensation payable under all heads by the constructing authority are as follows: $6,341.00 to Mr and Mrs Lee (rounded up to $6,350.00), $4,316.00 to Mr and Mrs Hansen (rounded up to $4,350.00), and $4,316.00 to Dr and Mrs Smith (rounded up to $4,350.00).
Payments
There was evidence that the constructing authority has made the following payments by way of compensation to the claimants:
$4,600.00 as compensation plus $2,150.00 in legal and valuation fees to the Lees on 27 November 1997; and
$5,500.00 as compensation plus $2,150.00 in legal and valuation fees to the Hansens on 16 December 1997; and
$3,118.00 as compensation and $2,150.00 in legal and valuation fees to the Smiths on 9 December 1997.
The basis on which the payments were made is described in Mr Wood’s compensation reports (Exhibit 11).
It is apparent that, calculations of interest aside, the sum paid in each case exceeds the amount awarded by this Court in compensation under all heads.
Orders
In A97-78 the compensation payable by the constructing authority to the claimants under all heads is determined in the sum of four thousand three hundred and fifty dollars ($4,350.00). The constructing authority shall pay to the claimant interest on that sum at the rate of seven per cent per annum from the date of resumption until 15 December 1997.
In A97-79 the compensation payable by the constructing authority to the claimants under all heads is determined in the sum of six thousand three hundred and fifty dollars ($6,350.00). The constructing authority shall pay to the claimant interest on that sum at the rate of seven per cent per annum from the date of resumption until 26 November 1997.
In A98-04 the compensation payable by the constructing authority to the claimants under all heads is determined in the sum of four thousand three hundred and fifty dollars ($4,350.00). The constructing authority shall pay to the claimant interest on that sum at the rate of seven per cent per annum from the date of resumption until 8 December 1997.
GJ NEATE
MEMBER
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