Heavey Lex No 64 Pty Ltd v Department of Transport - [2002] QLC 102

LAND COURT OF QUEENSLAND
CITATION: Heavey Lex v Department of Transport [2002] QLC 102
PARTIES: Heavey Lex No 64 Pty Ltd (applicant)

v
Chief Executive, Department of Transport
(respondent)

FILE NO:  A1997/0043
DIVISION: Land Court of Queensland
PROCEEDING:  Remittal
ORIGINATING COURT:            Court of Appeal and Land Appeal Court
DELIVERED ON:  6 August 2002
DELIVERED AT:   Brisbane
HEARD AT: Brisbane
MEMBER:Mr RP Scott
ORDER: I order that the respondent pay the applicant, Heavey Lex No 64 Pty Ltd compensation in the amount of $2,837,087 comprising loss of land and palms in the amount of $2,675,430 and disturbance in the amount of $161,657.
CATCHWORDS:   Resumption – determination of compensation – disturbance – professional costs of various experts – costs must relate to lodgement of claim – not allowed, as disturbance, if more related to later court proceedings. [21, 26, 48, 57]

Practice and Procedure – remittal to Land Court – requirement to provide reasons for decision – but no obligation to come to same monetary determination when reasons provided. [10]
Valuation – methods of valuation – bottom-up/top-down – considerations in which alternative to use – top-down applied. [68, 84, 85, 86]
Valuation – methods of valuation – before and after method – potential for higher use of balance land even with injurious affection – method of assessing such value. [61, 62, 64, 67]
Valuation – sales and basic evidence – acceptable sales – use of offers – when permissible to use, limits on use. [87, 88]

COUNSEL:Mr D Gore QC, for the applicantMr R Needham with him Mr R Jones for the respondent
SOLICITORS: Connor O’Meara for the applicantCrown Solicitor, Crown Law for the respondent

In reasons published on 22 December 1999 (my initial reasons) I determined compensation consequent upon a resumption of land from the applicant Heavey Lex No 64 Pty Ltd (Heavey Lex) pursuant to the Acquisition of Land Act 1967 (AOL) and the Transport Planning and Coordination Act 1994. I awarded compensation for loss of land, disturbance, severance and injurious affection as well as the loss in value of palms growing on the land. In those reasons I also determined disturbance compensation in favour of Salvatore Paino, a lessee of the land and the principal of Heavey Lex. Both Heavey Lex and Mr Paino had made claims for compensation under the AOL. Together, I refer to them as "claimants". Whilst I will recite some of the facts essential to these reasons, I will not repeat relevant facts recorded in my initial reasons nor details of my reasoning. I adopt my initial reasons and vary them only to the extent that they are modified or supplemented by my present reasons. A detailed understanding of these reasons can only be had, therefore, if they are read together with my initial reasons.
The resumption which was effected on 22 March 1996 involved the taking of 5.973 ha from a parcel of 37.43 ha. The resumed land comprised a corridor of land taken diagonally from the applicant's land which had…

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.

Continue reading Heavey Lex No 64 Pty Ltd v Department of Transport

Details

AGLC: Heavey Lex No 64 Pty Ltd v Department of Transport [2002] QLC 102
Case: [2002] QLC 102
Decision Date: 6 August 2002

CaseChat Overview and Summary

This case concerns a dispute between Heavey Lex No 64 Pty Ltd and the Department of Transport over the compensation to be paid for the resumption of land under the Acquisition of Land Act 1967 and the Transport Planning and Coordination Act 1994. The dispute was remitted to the Land Court of Queensland for reconsideration of the compensation amount. The legal issues to be decided by the court were the appropriate compensation for the loss of land, disturbance, and professional fees, as well as the value of the resumed land after the resumption.

The court reviewed the evidence and submissions from both parties, including the before and after values of the land, the disturbance compensation, and the professional fees claimed by the applicant. The court found that the applicant had over-prepared for the compensation claim, which resulted in excessive professional fees. The court also determined the appropriate compensation for the loss of land and disturbance, taking into account the before and after values of the land, the sales evidence, and the offer made by the respondent.

The court ordered that the respondent pay the applicant compensation in the amount of $2,837,087, which includes compensation for the loss of land and palms in the amount of $2,675,430 and disturbance in the amount of $161,657. The court also requested submissions from the parties on the question of costs and interest on compensation.

Orders