Hibiscus Holdings Pty Ltd v Director-General, Department of Transport
[1993] QLC 33
•28 October 1993
LAND COURT BRISBANE
[1993] QLC 33
28 October 1993
Re: Claim for Compensation - Acquisition of Land Act 1967 A92-5
Hibiscus Holdings Pty Ltd
v
Director-General, Department of Transport
J U D G M E N T
Introduction
In 1989 the Crown acquired two narrow contiguous parcels of land each with a frontage to the Pacific Highway (the "resumed land") from Hibiscus Holdings Pty Ltd (the "claimant") for road purposes. Pursuant to section 24 of the Acquisition of Land Act 1967, the Crown Solicitor, by letter dated 29 January 1992, requested that the Land Court determine the amount of compensation payable by the Commissioner of Main Roads. In accordance with section 24(6), the Crown Solicitor advised that the Commissioner was willing to pay
$2,650 as compensation for the resumption. The Commissioner, however, reserved the right to vary the amount if further information were to be received which would warrant variation of the assessment. In its claim lodged at the Land Court Registry on 13 May 1992 the claimant sought $1,340,217 in compensation.
At the hearing of the claim, the claimant sought compensation in the amount of $500,000. The Director-General of the Department of Transport (the "respondent"), who has taken the place of the now defunct Commissioner of Main Roads, contended that no compensation is payable because the value of the remaining land at the relevant date was increased by the scheme of the resumption.
The statutory basis for assessment of compensation
Section 20 of the Acquisition of Land Act 1967, which sets out the basis on which compensation must be assessed, provides:
"(1)In assessing the compensation to be paid, regard shall in every case be had not only to the value of land taken but also to the damage, if any, caused by either or both of the following, namely -
(a)the severing of the land taken from other land of the claimant;
(b)the exercise of any statutory power 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.
But in no case shall this subsection operate so as to require any payment to be made by the claimant in consideration of such enhancement of value."
Section 20(2) makes the date at which the value of the resumed land is to be assessed "the date when it was taken".
Section 12(1)(a)(i) provides that land taken by Proclamation shall vest in the Crown "on and from the date of the publication in the Gazette of the Proclamation." Section 12(5) provides that "on and from the date of the publication in the Gazette of the Proclamation" the land taken shall be vested in the Crown and the estate and interest of every person entitled to the whole of the land "shall thereby be converted into a right to claim compensation under this Act." As will be seen later in these reasons, the first Proclamation was published on 1 April 1989 and the second Proclamation was published on 2 December 1989. In my view, a reading of the relevant statutory provisions indicates that the date on which a right to compensation arose and at which the value of the land is to assessed is the date of publication of the first Proclamation, 1 April 1989.
The claimant's claim and the respondent's response - an outline
The claimant's claim for compensation was put on two bases, namely:
(a)the claimant should be compensated on the basis that the highest and best use of the caravan park land was as a service station, fast food outlet and possibly a
motel site; or
(b)in the alternative, if that was not the highest and best use of the land, then the claimant should be compensated for loss of profits after construction of the ramp on the resumed land, which loss was due to noise and air pollution emanating from vehicles using the ramp.
The respondent contended that:
(a)before the resumption, the highest and best use of the caravan park land was as a caravan park with a future potential for light industrial/retail warehouse development; and
(b)after resumption, the highest and best use of the remaining land is as a caravan park but with improved potential for a higher use. If the remaining land was put to a commercial use (other than as a caravan park), the enhancement to the remaining land as a consequence of works associated with the resumption exceeds the value of the land taken and any associated items of disturbance, and hence no compensation is payable by the respondent to the claimant.
The trial ran for some nine days. The claimant was represented by Mr DJ Dwyer and the respondent was represented by Mr RS Jones.
The Court viewed the on-ramp built on the resumed land, the remaining caravan park land, and a number of the properties to which the parties referred in their submissions. Oral and written evidence was provided by witnesses for each party. In support of the claimant's case, reliance was placed on a valuation report (Exhibit 6) and other evidence from by Mr TJ Verebes, a registered valuer. The respondent relied on a valuation report (Exhibit 7) and other evidence from Mr M Slater, a registered valuer. It will be necessary to consider the oral and written evidence in some detail to adequately deal with the parties' cases.
By way of background, and in order to resolve some legal issues, it is appropriate to consider the history of the caravan park land in the years immediately preceding and immediately after the resumption.
The history of the caravan park land
At all relevant times before the resumption of the resumed land, the claimant owned Lot 2 on RP117050 and Lot 1 on RP118748, two adjacent, irregularly shaped blocks with frontages to the Pacific Highway. The southern boundary of Lot 2 on RP117050 had a frontage to Main Street. The two blocks, together with Lot 2 on RP118748, have been used as Tandarra Caravan Park (the "caravan park land"). Access to the caravan park land was obtained by way of Reisers Road, which runs northward from the land and parallel to the Pacific Highway to George Street. A powerline easement traversed by high voltage power lines (the "SEQEB easement"), divides the southern part of the caravan park land. (See plans Exhibits 7 Annexure D.3 and 24 and aerial photograph (Exhibit 8)).
The land is zoned "Rural B" and falls within the area designated as Urban Residential on the Albert Shire Strategic Plan 1988. (See Exhibit 20, para 2.03)
Under cover of letter dated 17 December 1986, Jones Flint & Pike ("JF & P") Consulting Surveyors Pty Ltd, on behalf of the claimant, applied to the Albert Shire Council (the "Council") for the rezoning of the caravan park land to part "Special Facility/ Service Station, Fast Food Restaurant and Motel" and part "Light Industry". The application was made with respect to Lots 1 and 2 on RP118748 and Lot 2 on RP117050, having a total area of 3.87 hectares (See Exhibit 7 Annexure H.1 - H.4). According to the report of Mr PG Bell, a planner called by the claimant, the application (which was lodged in April 1987) was accompanied by Plan No. S0478/SS05A. The plan showed:
(a)1.9ha of Light Industrial land for use by retail warehousing on reclaimed land to the northern end of the site;
(b)0.3 ha for service station purposes on land created as a result of the new intersection of the Pacific Highway; and
(c)fast food restaurant and motel on 0.85 ha of land on the southern end of the site.
The application relied upon the creation of an intersection at the southern extension of Reisers Road linking a future roundabout at Main Street which would provide access to the northbound lane of the Pacific Highway. The traffic arrangements are described on drawings numbered S0478/BE01A and S0478/BE02A dated 2/87 (Exhibits 25 and 26 respectively). These plans were attached to a traffic report prepared by JF & P Consulting Engineers dated 11 March 1987 which accompanied the application.
In a letter dated 23 March 1987 to the Shire Clerk of the Council, the District Engineer of the Main Roads Department advised that "Main Roads objects to the proposal as submitted". The objection was made in light of planning considerations and proposals for roads in the Beenleigh district, as well as in light of particular problems in accommodating an on-ramp to the highway from Main Street and the site. It is appropriate to set out the precise terms of the letter of objection, the relevance of which will be apparent later in these reasons for decision.
"In the planning of the Beenleigh Bypass in the 1960's provision was made for a grade separated interchange at George Street. It is considered that this option should still be retained as a future connection between the expanding urban residential development of Eagleby to both the Highway and the township of Beenleigh. This is despite the fact that the original basis of the planning to provide another access into the centre of Beenleigh, is superseded by the system of inner and outer ring roads now proposed to divert through traffic around the central business district. It will be necessary to upgrade the existing ramps to current Main Roads standards.
Following the development of Windaroo and Mt. Warren Park residential estates to the south of the central business district Main Roads is proposing to provide an off-ramp and on-ramp from the Highway north at Main Street. This will allow traffic from those residential areas more direct access to the Highway alleviating traffic congestion on other parts of the local road network.
The distance between George and Main Streets at the Highway is 1000m. The on-ramp from Main Street will require a minimum of 470 metres and the off-ramp to George Street will require a minimum of 190 metres. To accommodate the proposal submitted, the on-ramp would commence some 300 metres further to the north. This would position the end of the on-ramp unacceptably close to the off-ramp to George Street when considering the possible volumes using both ramps.
Main Roads objects to the proposal as submitted.
In previous discussions Council and Main Roads officers put the proposal to Mr Wright for the consideration of dedication of the land for the on-ramp, access to this ramp would be permitted. Mr Wright accepted the access proposal but refused to dedicate the land.
Main Roads would withdraw its objection if the proposal were amended such that access to the on-ramp was along the principles shown on the attached drawing."
A copy of the letter, though not the drawing, is annexed to Mr Verebes' valuation report (Exhibit 6).
According to Mr VK Dippelsman, an engineer employed by Queensland Transport, the Main Roads Department objected to the proposal because the direct access ramps to the highway shown in Exhibits 25 and 26 were unacceptable. The problem would become worse when the George Street off-ramp was upgraded, a possibility that (as the letter shows) existed as at 1987. (See Exhibit 47 p 2)
JF & P Consulting Engineers Pty Ltd prepared a revised plan (SO478/BE 05, 29 July 1987, Exhibit 27) showing two way access to Main Street and an on-ramp to the Pacific Highway commencing just north of Main Street. This was acceptable "in principle" to the Department because it provided separation with the George Street exit and had a significant community benefit. (See Exhibit 47 p 2)
By letter dated 1 October 1987, the Shire Clerk advised that the Council had approved rezoning application No. 1507 for the following zones: "Light Industry and Special Facility/Service Station, Fast Food Restaurant and Motel". According to Mr Bell, approval was given on the basis of amended plan No. S478/BE05A. This plan varied significantly from the proposal plans in that direct access to the Highway was replaced by access to the acceleration lane from Main Street. Planning approval was subject to a number of conditions, including:
"7. Design and construction of the roadworks necessary to provide access to the site. Amendment of the access proposed as necessary to satisfy the requirements of the Main Roads Department and the Shire Engineer."
A copy of the letter and the conditions is an annexure to Exhibit 6.
Mr Bell said that, from his examination of the correspondence and discussions with Kerry Finn of JF & P (who was unavailable to give evidence), the Main Roads Department's position on negotiations was heavily influenced by the proposal to construct the accelerator lane from Main Street to the highway. The outcome of the application was that access from Main Street to the highway would be through the subject land (and hence the proposed service station etc). What the Council approved was a plan which is substantially what subsequently was constructed on the resumed land, rather than what was in the application. (Exhibit 20 para 3.01(b))
Mr DC Wright, a director of the claimant, gave oral evidence about negotiations with the
Council for the rezoning of the land. He agreed that the negotiations were conducted at a time when the Main Roads Department was talking about resuming land or creating a ramp onto the highway. The first person who spoke to him about such a road was the Albert Shire Engineer, Mr Penhaligon, who early in 1986 indicated that there was an overall plan to rearrange the roadworks around Beenleigh. The works were to comprise an inner and an outer ring road. Apparently Mr Penhaligon advised that some caravan park land might need to be resumed, but told Mr Wright not to be concerned as there was an alternative route that may make resumption unnecessary.
Mr Wright would have been aware of the proposed roadworks scheme at least as early as when he took over the operation of the caravan park in 1986 and well before receiving the notice of intention to resume or the preparation of the rezoning application. That knowledge did not deter him from engaging JF & P to carry out investigations about the possible use of the caravan park land for service station, fast food restaurant and motel development.
The Council's intention to recommend to the Minister for Local Government that the rezoning be approved was also subject to no appeal being lodged. Local Government Appeal No. 92 of 1987 was lodged by the Brooker family who were proprietors of service stations on the highway. The main grounds of appeal related to access, traffic, need, oversupply of service stations, unsuitability of the location, land subject to flooding and the failure to supply full information. Mr Bell expressed his opinion (as a town planner with experience in local government matters and as a director of town planning and development consultants) that an appeal on those grounds would not have succeeded.
Apparently, however, there were negotiations between representatives of the claimant and the Brookers to determine the basis on which the appeal would be withdrawn. As a result of negotiations, and by letter dated 16 November 1988, the claimant withdrew the service station component of the Special Facility rezoning application. The application was left at "Light Industry and Special Facilities (Fast Food Restaurant and Motel)". The letter to the Council also stated "It is understood that this action will result in the appeal being withdrawn so that the matter may be settled". (See copies of correspondence annexed to Exhibit 6, Exhibit 11)
That action was taken before 29 November 1988, when a Notice of Intention to Resume was served upon the claimant. But it seems that the claimant had had some indication of the proposed resumption prior to that date. Mr Wright said that he had not abandoned the service station component of the application in order to deal with the objection. Rather he had decided to withdraw that proposal "because we had lost highway access" (transcript 28-9), presumably as a result of the resumption. That explanation is inconsistent with the reason implicit in the letter to the Council, but it highlights the need for highway access for the proposed development of the caravan park land. Mr Wright said that the concept of the service station, takeaway food outlet and motel development was entirely related to having access to the highway. Apparently he believed that, before the resumption, highway access was available from the caravan park land. That belief may have been prompted by a report from JF & P Consulting Engineers Pty Ltd. It is clear that he had no personal knowledge about such access or whether any road works would have been required to effect such access, and had not made inquiries of the Main Roads Department concerning direct access to the highway. Both Mr Wright and Mr Verebes stated that a couple of major oil companies (BP and Mobil) had been interested in the original proposal for the site. No direct evidence of that interest was produced in these proceedings, however it was clear that, after the resumption, no oil company would have built a service station on the site because it lacked highway access.
By Notice of Intention to Resume dated 28 November 1988 and addressed to the Manager of the claimant, the Secretary to The Commissioner of Main Roads advised that, in pursuance of the provisions of The Acquisition of Land Act 1967 and the Main Roads Act 1920, the Commissioner as constructing authority intended to take the land described in the Schedule to the Notice for road purposes. The Schedule described the land in the following terms:
"Parish of Boyd County of Ward
being part of (i) Lot 1 on R.P. 118748 (original Portion S10) and (ii) Lot 2 on
R.P. 117050 (Original Portion S.10) as shown on attached plan R1-601
Area to be taken: about (i) 326 square metres and about (ii) 2940 square metres
Title Reference: (i) C/T Volume 4286 Folio 70 and (ii) C/T Volume 4309 Folio 234Full name of Registered Proprietor: Hibiscus Holdings Pty. Ltd."
An agreement dated 29 November 1988 for the taking of land having an area of approximately 3266 square metres was signed by Mr DC Wright (Director) and bore the claimant's common seal. A copy of the Agreement is annexed to Mr Verebes' report (Exhibit 6).
By proclamation published in the Queensland Government Gazette on 1 April 1989 (the "first Proclamation") the Governor declared that the following land "is taken for Road purposes as from 1st April, 1989, and is vested in the Crown":
"1. County of Ward, parish of Boyd - An area of about 326 square metres being part of Lot 1 on R.P. 118748 (original Portion S.10), contained in C/T,
volume 4286, folio 70.
2. County of Ward, parish of Boyd - An area of about 2940 square metres being part of Lot 2 on R.P. 117050 (original Portion S.10), contained in C/T, volume 4309, folio 234."
(See also the letter dated 14 April 1989 notifying the Manager of the claimant of the Proclamation, a copy of which is annexed to Exhibit 6).
Section 11(1) of the Acquisition of Land Act 1967 empowered the Governor in Council, by proclamation published in the Gazette, to amend the first proclamation by correcting the incorrect description of the land purported to be taken under the first proclamation. The relevant parts of Section 11(2) provides:
"If amended by a subsequent Proclamation ... made pursuant to this section, the first Proclamation ... shall, on and from the date of the publication in the Gazette of the subsequent Proclamation ..., be read as one with the subsequent Proclamation ... and shall have force and effect accordingly."
By proclamation published in the Gazette on 2 December 1989 (the "second Proclamation") the Governor amended the proclamation published on 1 April 1989 by deleting the descriptions just quoted and inserting the following in lieu of those descriptions:
"County of Ward, parish of Boyd, being Lot 3 on Plan 230416 being a plan intended for registration in the office of the Director of the Department of Freehold Land Titles, Brisbane containing an area of 401 square metres and being part of the land contained in C/T, Volume 4286, Folio 70.
County of Ward, parish of Boyd, being Lot 1 on Plan 230416 being a plan intended for registration in the office of the Director of the Department of Freehold Land Titles, Brisbane containing an area of 2932 square metres and being part of land contained in C/T, Volume 4309, Folio 234."
The two Lots are adjacent narrow parcels of land, each with a long frontage to the Pacific Highway and together comprising a wedge shaped block running north west from the intersection of the Pacific Highway and Main Street. A copy of Plan 230416 showing the Lots 3 and 1 is annexed to Mr Verebes' report (Exhibit 6).
Both the claimant's claim for compensation made under section 19 of the Acquisition of Land Act 1967 (Exhibit 4) and Mr Verebes' valuation report (Exhibit 6) describe the resumed land in terms akin to those used in the first Proclamation. In particular they describe the total area of the resumed land as 3266 square metres when, according to the amended descriptions contained in the second Proclamation, the area resumed was 3333 square metres. Both counsel for the claimant and Mr Verebes assured the Court that, for present purposes, nothing turned on those differences in area.
On 29 August 1989, as a result of negotiations, Local Government Appeal No. 92 of 1987 was withdrawn.
By letter dated 17 July 1990, more than a year after the resumption, Hibiscus Holdings withdrew from the Special Facilities component of the rezoning and requested the Council that the approval be amended to encompass only the Light Industrial section.
By letter dated 27 September 1990 the claimant withdrew totally from the rezoning application.
The claimant's primary claim - highest and best use
The primary claim for compensation rests on the basis that the highest and best use of the caravan park land was as a service station, fast food outlet and motel development. Indeed, the claimant submits, the Court must assume that, but for the resumption scheme, the claimant would have had, as at April 1989:
(a)the land rezoned for the purpose of the proposed redevelopment;
(b)the approval of the Main Roads Department to a plan for the proposed redevelopment; and
(c)the rezoned land either subdivided or approved for subdivision subject to minor boundary adjustments.
The claimant refers to the history of its proposals for the caravan park land since 1986 as supporting the contention that, but for the resumption, the claimant would have had, as at April 1989, rezoning of the land and relevant approval for a service station, fast food outlet and motel development on the land.
Further, the claimant contends that any exercise to ascertain market value as a step in determining compensation must proceed on that assumption (rather than by using the actual state of the land as it was in April 1989, adversely affected by the relevant roadworks scheme). The claimant's case can be tested by asking the following questions:
(a)In April 1989 was the caravan park land a suitable site for a service station, fast food outlet and motel development?
(b)If the caravan park land was suitable for such development, is it likely that official approval would have been given to development of the type proposed by the claimant, including a ramp from the highway to the site (the "project off-ramp") and a ramp from the site to the highway (the "project on-ramp")?
To answer those questions it is necessary to consider such things as factors which would have affected commercial decisions about a proposal for the use of the caravan park land, the history of applications to use the land for those purposes, the designs for proposed use of the land, and the technical and other guidelines relevant to such aspects as the project off-ramp and the project on-ramp.
(a) Commercial viability
Evidence relevant to the commercial viability of the redevelopment of the caravan park land for a service station and other purposes was given by Mr DP Dempsey and Mr LV Maloney (consultants to the petroleum industry called by the respondent and the claimant respectively), Mr Bell (a town planner called by the claimant) and Mr J Olsen (an engineer and partner of Eppell Consulting, a firm who advise on transportation and traffic engineering and planning, called by the respondent). Most of the evidence focussed, not on the plans prepared to accompany the claimant's rezoning application, but on a concept plan prepared by Dredge & Bell Planning Pty Ltd, town planning and development consultants in March 1993 (the "Dredge & Bell plan") (Exhibit 20). The plan is a concept plan showing a service station, fast food restaurant and motel development on land adjacent to the highway. Access to the development would be gained by way of the project off-ramp and access to the highway would be gained by way of the project on- ramp.
Mr Dempsey is a qualified engineer who held executive positions with Amoco Australia Pty Ltd in Queensland between 1960 and 1984. His duties included the selection of service station sites for acquisition, construction and subsequent franchise. Since 1985 he has practised as an investor and property developer specialising in, among other things the acquisition of service station sites and related matters (including negotiations with relevant State and local government authorities about special conditions, layout of and access to such sites) and the operation and on-sale of such properties (see Exhibit 31).
Mr Dempsey prepared a written report about the suitability of part of the caravan park land for sale to, or acquisition as a service station site by, a major oil company or similar independent interests both before and after resumption in April 1989 (Exhibit 31). He noted that in both the before and after resumption states there were two possible
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restrictions on or deterrents to development of the land. The first restriction resulted from the Beenleigh-Robina Railway line reserve bounding the southern part of the land. The reserve land cannot be developed for residential or other purposes which could provide support for a service station. Another deterrent may result from the SEQEB easement, because the presence of transmission lines may be a consideration for oil companies venting petroleum vapour into the air. It was clear from Mr Dempsey's oral evidence, however, that the location of the SEQEB easement would only be relevant in a situation where the property was otherwise of marginal suitability. In that situation, the easement "wouldn't be a plus". Mr Maloney's evidence supported the conclusion that the SEQEB easement would have little, if any, significance if the site were otherwise suitable for service station development.
Mr Dempsey referred to the plans for which conditional approval was given by the Council on 1 October 1987, but directed his detailed comments to the Dredge & Bell plan, which is the plan on which the claimant relied in these proceedings. Most of his comments related to:
(a)access to the site and egress from it;
(b)the locations of the proposed motel, fast food outlet and service station relative to each other, and the visibility of each from the highway; and
(c)potential sources of revenue and volumes of fuel sales.
Access: Because the highway is a limited access road, Mr Dempsey said that securing access to the site would be the first priority. As he put it, "if you haven't got the access you haven't got a site." He noted that the Main Roads Department is "very reticent or reluctant to allow ingress and egress from limited access roads except under the special defined circumstances that they define".
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Mr Dempsey also stressed the importance of motorists having easy and safe access to the site from the highway. The site would have to be visible over a sufficient distance before the off-ramp to enable a motorist to position his or her vehicle in the appropriate lane to leave the highway safely. He calculated that the Dredge & Bell plan would give a motorist travelling at a permitted speed of 100 kilometres per hour approximately 35 metres after crossing the highway bridge over Main Street to slow down and enter the deceleration lane. In Mr Dempsey's opinion, the reaction time would be very limited for a motorist who crossed the bridge and then elected to drive into the service station complex. To some extent that problem may be overcome if sufficiently elevated signs were visible some distance south of the bridge, alerting motorists to the location of the service station and giving them more time to drive into the appropriate land.
Mr Dempsey stated that, when choosing a highway site, the oil industry prefers to have the service station clearly identified and visible with easy and comfortable access to the entrance to the site. He saw significant problems of ingress and egress in the Dredge & Bell plan. The layout shows the main ingress and exit at a point past the service station proper. A motorist would have to reverse his or her path to effect entry to the service station and reverse again to effect exit at the Main Entry. This procedure would not be acceptable to the heavier commercial vehicle driver and the potential for sales of food and fuel from that source would not be realised. The reverse layout entry would be "an initial significant deterrent" to selection by an oil company.
In Mr Dempsey's view, "an attractive ingress contributed heavily to ultimate site selection more significantly than any problems the site may have with providing comfortable exit for the motorist." But that did not mean that exit onto the highway was irrelevant, either to the cost of construction or to the attraction of the site for repeat trade. The Dredge & Bell plan provides for an exit from the site between the service station and the fast food by way of a swing left exit (presumably exit only) back on to the off-ramp. In his opinion, this exit "would have the potential to create a serious traffic hazard" and it would be most unlikely that the Department of Main Roads would agree to that exit in the overall layout. Drawing on his experience of other service station developments in the area, Mr Dempsey had particular reservations about the project on-ramp. He compared the location of the site with the Caltex site at Redbank where the Department insisted that a service road (similar to Reisers Road) be used. The cost of roadworks at Redbank would have been $1.4 million and the developers did not like the exit. He suggested that the Department may have required an upgrading of Reisers Road rather than permitting the project on-ramp. Such a long exit would require upgrading of the road to overcome susceptibility to flooding and, because of its length and location, would be unattractive to motorists, possibly deterring return custom.
Location of buildings: The Dredge & Bell plan provides for a motel, a fast food outlet, and service station, in that order from south to north. Mr Dempsey thought that the location of buildings relative to each other would detract from the visibility and attraction of the service station. Those problems may be reduced by the use of appropriate signs, although he thought that major oil companies (at least) would not share a sign with others (such as fast food retailers) using the land. In his opinion, irrespective of signage, the service station would suffer because a motel building and a fast food building would at
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least partially obscure it, no matter how attractively the service station site may be presented. That would present "confusion and a definite deterrent to the motorist contemplating service station entry." (transcript 374)
Sources of revenue and estimated volumes of fuel sales: Mr Dempsey estimated that the only source of volume sales would be from northbound light vehicle highway traffic. There is no ready residential back up source of sales because there is no access provision in the layout to enable possible customers from Beenleigh and Mt Warren Park to be included as part of the overall sales potential of the proposed outlet. By contrast, the Shell service station at Beenleigh, north of the proposed site, has always enjoyed substantial sales (450,000 to 600,000 litres per month) because it can tap the residential Beenleigh traffic travelling north towards Brisbane, as well as obtaining its share of "pure highway transient traffic".
Mr Dempsey also suggested that the lack of residential backup would affect the type of food outlet (if any) which the site could be expected to support. A major food company would require residential trade before operating at a site like the caravan park land. On this site a fast food cafe which operates as an integral part of the service station would be more likely.
Mr Dempsey suggested that once the northbound motorist has reached Beenleigh it is only a short run to Brisbane, which has a multitude of fuel purchasing options. For motorists travelling northward from near Gold Coast there was and is fuel available with direct highway access at:
(a)BP, Cades County - estimated current volume 700,000 litres per month
(b)Caltex, Coomera - estimated current volume 400,000 litres per month
(c)Mobil, Ormeau - estimated current volume 300,000 litres per month.
Of these service stations, the Mobil station in particular is heavily reliant on passing trade. Caltex at Coomera operates without any substantial heavy vehicle or nearby residential customers.
According to Mr Dempsey, the oil industry considers that fuel sales of 400,000 litres per month provide the minimum acceptable return, unless the site has the potential to quickly attain that volume. Based on his consideration of other highway service stations, Mr Dempsey thought that the caravan park land site would not have been capable of pumping more than 220,000 litres per month and would have been well below acceptable oil industry selection parameters.
Mr Dempsey pointed out that (assuming highway access was approved) major road works to gain highway access can add very significantly to establishment costs. Where major road works are necessary, the estimate of a minimum volume of fuel sales would have to substantially increase from 400,000 litres per month to ensure the site's viability. In the case of the proposed development, road and ramp construction costs appear "very
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substantial" and extra volume estimates would have to be placed on the site to justify the additional expenditure occasioned by the road works.
It is useful to note, at this stage, Mr Sauermann's evidence that the construction costs had been estimated to be about $80,000 for the off-ramp and $195,000 for the on-ramp (which was estimated to have a sealed surface area of 2,400 square metres). Those estimates were made from the concept plan only and were based on figures which JF & P assumed would be acceptable using present day contract rates. He agreed that in 1989 the cost in dollar terms would probably have been slightly lower.
General comments and conclusions: Mr Dempsey noted that around and before April 1989, increasing costs of construction and severe competition in the market place from the number of sites being offered to major oil companies contributed to a more selective approach by the oil industry to new service station developments. In his view, it would not be possible to nominate any of the five major oil companies as "seriously entertaining" the subject site for acquisition and development as a "major highway outlet" at the time of resumption. As a private development, the costs of construction and overall capital outlay allied to volume and profit margins would deter any investor (particularly one without the operating margins of a major oil company) from completing his own operation. He concluded that, prior to resumption, the site "was simply not an attractive proposition to the Oil Industry."
Mr Dempsey agreed that, if approval were to be given for a 24 unit motel on land which was surplus to the requirements of a service station and fast food development, a developer would be likely to sell off the motel land to concentrate on the service station and related development.
In his report (Exhibit 23), Mr Olsen also pointed to features of the proposed development which would make it unattractive to a potential operator. He listed five issues of concern on which he commented in oral evidence.
(a)A crest on the highway near the site means that visibility to the service station is poor from the highway approach.
(b)The location of the service station beyond the fast food site would not be favoured by a service station operator, whose site would be obscured by the fast food site and, potentially, by the motel.
(c)Fast food access is via the service station driveway and across the apron, which may interfere with the service station operations.
(d)Vehicles leaving the service station and heading toward the roundabout would need to cross the path of traffic entering from the roundabout.
(e)A fuel only outlet is provided and most major oil companies would seek a roadhouse site combining fuel sale with their own food outlet.
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He suggested that other aspects would necessitate re-design. Semi-trailers could not manoeuvre around the roundabout. The Reisers Road leg reduces to a width of 5 metres only 10 metres from the roundabout and would be too narrow for safe two way operation to/from Beenleigh. Mr Olsen agreed that, from an oil company's point of view, egress from the subject land to the highway via Reisers Road would not be a desirable arrangement.
Although Mr Olsen is an engineer, not a planner, his criticisms are consistent with, and add some weight to, the criticisms made by Mr Dempsey. For his part, Mr Sauermann (an engineer involved in preparing the Dredge & Bell plan for the claimant) seemed to accept that the design could be modified once the proponent was seriously concerned to develop a detailed design. Indeed he volunteered that the Council would probably not approve that layout, or at least part of it.
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Evidence was given for the claimant by Mr Maloney, who was employed by Ampol from 1949 until 1986 and is currently a consultant to the oil industry. He has had experience at a management level in the acquisition of sites for service station construction and the design of developments of such sites in Western Australia, Northern Queensland (1966- 1969), the Northern Territory and New South Wales (see Exhibit 32). One of his present functions is to locate sites suitable for service stations in southern Brisbane, the Gold Coast and Canberra, primarily in rapidly developing urban areas. Although he has had less experience than Mr Dempsey in the selection and development of sites in the area of the subject land, his evidence must be given weight.
Mr Maloney agreed with most of the things that Mr Dempsey wrote in his report about the Dredge & Bell plan, particularly Mr Dempsey's comments about the location of the service station and fast food outlet relative to each other, the difficulties with the entry and exit layout, the unattractiveness of the site for heavy vehicles, the need for the service station to be clearly identified and visible with the entrance to the site easily and comfortably accessed, the lesser importance of providing a comfortable exit, the significant establishment cost of major roadworks and the need to have a volume of sales to cover those costs.
But Mr Maloney distinguished between that layout (which he thought could be improved) and the general suitability of the site for service station and related development. He suggested, for example, that the Dredge & Bell plan could be improved by relocating the service station and fast food outlet so that the service station was more visible from the highway and there would be better access to the fuel pumps. He had arranged for a sketch plan to be prepared (Exhibit 33) which shows those modifications within the general boundaries shown on the Dredge & Bell plan. His evidence was that, about the time of the resumption, it was general policy for one company to include a take away food outlet within the service station development. He thought that there would have been no significant problems in moving the proposed fast food outlet to allow the service station to be more prominent. Like Mr Dempsey, Mr Maloney was looking at the layout from the perspective of the oil industry and he agreed that, if another food retailer were to be involved in the development, the retailer may have a different opinion about the relative locations of the two facilities. That point was not lost on Mr Dempsey, who regarded the sketch plan as showing a better layout than the Dredge & Bell plan, but thought that it would have other difficulties. For example, although the service station would have greater visibility, the visibility of the fast food outlet would be reduced and that would limit the prospect of attracting a fast food company to operate there.
Mr Maloney assessed the suitability of the caravan park land for the proposed development against the following criteria for selecting a service station site on a highway:
(a)the volume of passing traffic;
(b)the visibility of the site;
(c)ingress to and egress from the site; and
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(d)if possible, the availability of some residential trade as a back-up to the highway trade.
Volume of traffic: Mr Maloney suggested that for a service station to be viable there would need to be a minimum of about 3,000 vehicles passing a site each day. Traffic figures provided by the respondent show that the daily volume of traffic travelling in both directions on the highway to have been in 1991 - 44,570 vehicles, in 1992 - 45,609 vehicles and in 1993 - 47,552 vehicles. It is reasonable to assume (and Mr Maloney agreed) that in 1989 there was an adequate traffic flow past the site for a service station. Mr Maloney estimated that some 80% of those vehicles would travel on the highway on a daily basis, with people travelling to and from work. They would provide a consistent source of passing trade. By reference to other service stations in comparable locations, he estimated that the highway traffic would be the source of sales of up to 300,000 litres of fuel per month.
Visibility: Mr Maloney described the caravan park land as having "adequate visibility" and thought that, with some movement of earth "it could have made just a reasonable sort of service station, a good sort of service station". (transcript 299-300) In his opinion, a service station on the caravan park land with a large elevated sign (similar to the size and height of the sign at the former Ampol service station on the opposite side of the highway) would be visible some 300 to 400 metres south of the Main Street overpass and would be much more visible than the Caltex service station at Coomera, which is selling approximately 400,000 litres of fuel each month. However, because most of the potential customers would be habit-forming drivers who pass the site on a daily basis, those customers would position their vehicle to slow down well before arriving at the site, irrespective of whether the site or signage was visible to people on the highway south of or on the Mains Road overpass part of the highway.
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Ingress and egress: Mr Maloney agreed that road and ramp construction costs in this instance would be substantial, but stated that all service stations needing highway access would have to face that cost and that others have been built bearing such costs. In his view, the cost of putting in an appropriate road system would be offset by the increased volume of custom attracted to the site which in turn would pay those costs. Although direct access onto the highway (rather than access by way of Reisers Road) would be ideal, he considered that primary consideration would be an attractive ingress to the site from the highway.
Residential trade: Mr Maloney said that residential back-up would be desirable but not necessary. He agreed that neither the Dredge & Bell plan nor his suggested variation of that plan (Exhibit 33) could be relied on to draw residential demand. But, in his opinion, "considerable effort" would be put into devising a way of attracting some of the Beenleigh and Mt Warren traffic through the site to increase the volume of fuel sold. To attract traffic from Main Street would require a complete redesign of the project. He noted, however, that other highway service stations were trading without residential back-up, namely, Caltex at Coomera (400,000 litres per month), Mobil at Ormeau (300,000 litres), and Ampol at Reedy Creek (300-400,000 litres). In his view 300,000 litres per month is "a reasonable thing for a highway site with no residential backup", but he agreed with Mr Dempsey's statement that acceptable volume estimates are generally assessed at 400,000 litres per month minimum or with the potential to quickly attain that volume. In his experience, a service station which depends entirely on highway trade would need to have a food outlet or some other venture to support it. A service station which sold 300,000 litres per month may be quite adequate if it was next to a profitable food outlet or store which was paying good rent for its part of the site. Some of those stores, however, are likely to be located only where there is a nearby residential area, which is not the case here. To be viable, a highway service station would have to sell about 400,000 litres or "a lot more food".
Mr Maloney suggested that the site would not be designed to take trucks and agreed with Mr Dempsey that it would not be viable or practical to take them. He said that many service stations do not cater for trucks but are viable enterprises. Mr Dempsey did not seem to dispute that. He said that very few sites cater for trucks, but suggested that the size of the site may have made it suitable for heavy vehicles, which could have been the source of fuel and associated sales (especially food).
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Mr Bell opined, as a planner, that the proposal shown on the Dredge & Bell plan would be commercially viable in that the site has good visibility from the highway and contains land uses which are primarily directed towards highway patrons. In his view, it could be demonstrated by an oil company or service station proprietor that the site would be successful and that its success would demonstrate a need for the land use. (Exhibit 20 paras 5.12, 5.14). It is clear from his town planning report (Exhibit 20) that Mr Bell assumed that access to the site from the highway, and access to the highway from the site, as shown in the Dredge & Bell plan was "both practical and acceptable". He also assumed that the service station, fast food outlet, restaurant and motel would remain on the one holding. His qualifications to give such evidence are limited, and the limited factual basis for his opinion was apparent in cross-examination. Because he has had relevant experience in such things as the development of some major service stations, his opinion should not be disregarded. But his opinion cannot be given as much weight as that of more experienced and better qualified consultants. Mr Dempsey expressly disagreed with Mr Bell's assessment.
Mr Bell suggested that impediments to the viability of the proposed service station because it would be located before (or to the south of) the end of the project off-ramp could be overcome by moving the service station further north and providing fill or other modifications (possibly at substantial cost) to keep the service station above flood level.
For the sake of completeness, I note that there was a real likelihood of a legal challenge to the approval of a development of the type set out in the Dredge & Bell plan. As noted earlier, a challenge to approval of the claimant's original proposal seems to have had some influence on the claimant's subsequent modification of the proposal. There was evidence from Mr Bell (Exhibit 20 para 4.03 - 4.04) and submissions from Mr Dwyer (citing Meridian Nominees Pty Ltd v Redland Shire Council (1983) QPLR 167 at 172; see also Wyatt v Albert Shire Council [1986] QPLR 62 at 63) that the appeal would not have succeeded. It is not possible to assess with certainty the prospects of success of any objector's appeal to the relevant court against approval of a rezoning application based on the Dredge & Bell plan. All that can be said is that, as at the date of resumption, there was a real possibility that an appeal would have been lodged against approval of a proposal based on the Dredge & Bell plan and any such appeal would have been another hurdle for the claimant to overcome.
Putting to one side for the moment the crucial question whether ingress to and egress from the site could have been secured, the effect of the evidence just discussed is that, although one or two oil companies may have expressed some interest in the caravan park land, the prospects in 1989 were that a development of the type proposed in the Dredge & Bell plan would have been of marginal viability and hence unattractive to major or minor oil companies (let alone food retailers or motel proprietors). Substantial earthworks and construction costs would have been necessary, most if not all of the trade would have had to come from the highway, and there would have been no residential back-up for trade and no real prospect of attracting substantial business from elsewhere. Against that is the fact that the Council consented to a rezoning application for the caravan park land (albeit on a plan which provided for different access arrangements and some demonstrable community benefit) and the majority of the traffic passing the site is repeat traffic, so that
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habit forming drivers passing daily would provide a potential source of regular trade if the site was readily accessible and the services, facilities and products available from the site were otherwise attractive to such motorists.
The evidence shows that the caravan park land was at best only possibly suitable for some sort of service station and fast food (and motel) outlet development. But it was not an outstanding or obvious site for such development and the prospects for its commercial profitability were by no means assured. A couple of years before the date of resumption, Mr Maloney had been looking at possible service station sites in the area and a site at Reedy Creek was the only one which he found which Ampol felt it might be able to acquire. He said that "sites were pretty difficult to get back in 1986 on the Gold Coast Highway; everyone was trying to get them at that time." Despite that, he had not looked at the caravan park land as a prospective service station site. He said that the site had not come to his notice. Had the land been appropriately zoned and he had known it was on the market, Ampol would have considered and evaluated it. But there was no indication that Ampol would have taken the matter further.
If it is accepted that the caravan park land had some limited potential for development for a service station, fast food outlet and possibly a motel, then it is necessary to determine whether it is likely that official approval would have been given to development of the type proposed by the claimant, including direct access from and to the highway by way of the project off-ramp and the project on-ramp.
To answer that question it is necessary to determine whether access from and to the highway would have been approved and, if it would have been approved in principle, whether approval would have been given to the proposed project off-ramp and project on- ramp and other facilities.
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A report on highway access considerations was prepared by Mr J Olsen of Eppell Consulting (Exhibit 23). In the report it was contended that two broad criteria would be applied to the access configurations proposed in the Dredge & Bell plan, namely:
(a)a traffic planning test to consider whether it is appropriate that a development introduce additional ramps to or from the Pacific Highway; and
(b)a traffic engineering test to determine if geometric standards relating to ramp spacing, ramp lengths and safety can be attained.
(b) Traffic planning test
The first of these criteria involves what was referred to as the philosophy regarding planning for the highway. The section of the Pacific Highway which passes the caravan park land was declared a limited access road by proclamation of the Governor in Council published in the Queensland Government Gazette of 18 December 1965 and effective from that date (Exhibit 48; see also copy of plan in Exhibit 47 Drawing 1). Section 11A of the Main Roads Act 1920 provided that the written consent of the Commissioner of Main Roads was necessary before a person could construct any means of access to or from such a limited access road, and that the Commissioner could take steps to prevent access to such a road.
According to Mr Dippelsmann, the Department's objective in limiting direct access is "to promote a safer more efficient road network by restricting individual property access and progressively replacing at-grade intersections with regularly spaced interchanges." (Exhibit 47) He noted that the Dredge & Bell proposal disregards the limited access status of the highway.
Mr Olsen's report notes that the highway and its northern extension in the South East Freeway are the most heavily used arterial roads in south east Queensland. Queensland Transport (formerly the Main Roads Department) has long applied limitation of access to the highway. The report contends that "in these circumstances it is vital that the through road capacity be preserved and enhanced" and that the limitation of access provision "provides a mechanism which allows the traffic planning criterion to assume greater importance than it might on a normal arterial road." (Exhibit 23 para 1.1)
Some documentary evidence of what was described as the philosophy relating to arterial roads in the Gold Coast and Brisbane areas is found in extracts from the Gold Coast Area Transport Study of 1980 (Exhibit 39) and the Logan City Road Network Study of 1982 (Exhibit 38). The former study sets out classifications of types of roads, which classifications "convey a planning intent that a given road will serve a definite purpose, and should be constructed to a certain standard. It is not proposed to discuss standards, as determination of these should rest with the relevant constructing authority." Arterial roads are described as "roads whose main function is to form the principal avenue of communication for traffic movements within urban areas." They should be able to be developed into multi-lane facilities "with access control being a desirable feature to enhance traffic flow". Development of "maximum traffic capacity must be the prime
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consideration" and such roads "could be expected to be candidates for the full range of traffic management schemes" including service roads. The Logan City Road Network Study describes arterial roads in the same terms as the former study and continues:
"Control of frontage access is normally an important consideration. These roads cater for through traffic and geometric standards are related to same."
Mr Olsen recognised that there are cases where community benefit flows from providing additional interchanges or access points, and he suggested that there is a balance to be sought in the number of accesses and the spacing of accesses to maximise the through carrying capacity of the road. The addition of ramps or interchanges can provide a benefit to adjacent communities in terms of them having more ready access to a facility or to the highway. In his view the Dredge & Bell plan offered no benefit to the wider community and, in light of the policy about arterial roads, Mr Olsen suggested that "it is inappropriate for additional ramps to be introduced simply to benefit a particular development. Additional ramps introduce further conflicts and can affect through capacity." Experience suggested that the Main Roads Department would not accept the introduction of separate access to a development on the subject site.
Mr Sauermann was unaware that the highway had the status of a limited access road, was unsure of the implications of that status and was unaware of the restrictions which attach to such a road. He was not aware of the traffic planning criterion referred to by Mr Olsen and he was not familiar with the Gold Coast Area Transport Study or the Logan City Network Study. He had had no experience of negotiating with the Department about access to limited access roads. But he accepted that the Department has wider responsibilities to the community, that the Department would have as a primary objective the maintenance of maximum traffic capacity on the highway and that, when making a decision about a proposed development, it is appropriate for the Department to have regard to any community benefit flowing from the development. He confirmed that there was no indication on his firm's files that the Department would have approved an off-ramp and on-ramp combination of the type contained in the Dredge & Bell plan. Indeed the only file note of a discussion suggests that Departmental approval was unlikely, except to access to the highway of a type set out in the revised plan prepared by JF & P. (Exhibit 27)
Mr Dippelsmann gave evidence concerning the revised plan prepared by JF & P showing two way access to Main Street and an on-ramp to the Pacific Highway commencing just north of Mains Street. This was acceptable "in principle" to the Department because it provided separation with the George Street exit. A distinguishing feature between this proposal and the Dredge & Bell proposal and Mr Maloney's variation of that proposal (which Mr Dippelsmann said would not have been approved) is that the proposal shown in the JF & P plan had a significant community benefit component in that it incorporated many of the objectives that were achieved by the actual works carried out by the Department of Transport at the Main Street intersection. Mr Dippelsman stated, however, that notwithstanding the acceptability "in principle" of the concept shown in the plan, any access northbound either via Reisers Road or direct onto the Pacific Highway would have had to have been assessed fully once more detailed engineering drawings had been
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completed.
Mr Dippelsmann also stated that, because access was available to the blocks comprising the caravan park land by way of Reisers Road or from Main Street, the Department was under no obligation to consider approving direct access from the highway. (Exhibit 47 para 7)
In Mr Dippelsmann's opinion, because of the close proximity of the George Street and Main Street intersections and the increased requirements to maintain traffic flow on the Pacific Highway:
(a)it was extremely unlikely that a design proposal acceptable to the then Main Roads Department would have been possible (as it would have had to meet distance criteria between ramps and to George Street); and
(b)northbound traffic from the site would have been required to gain access to the Pacific Highway via Reisers Road. (Exhibit 47)
The only development to which the claimant could point as supporting possible in principle approval of access from and to the highway was BP service station near Smith Street near Gaven. It has an off-ramp to the service station and an on-ramp back to the highway. The BP service station is similar in concept to what was proposed for the caravan park land and is on a site away from interchanges. It does not preserve or enhance through traffic capacity on the highway. I accept that the Department gave approval to the access to and egress from the service station, that the location of the on-ramp is inappropriate and that it does not accord with some of the requirements in the Manual for a limited access road. However, there are two significant features which distinguish the BP site from the caravan park site land. First, before the roadworks, the site was landlocked and access could only be gained from the highway. Because the BP site does not have alternative access, the Department agreed to access from the highway, once rezoning for other development on adjacent land was approved. By contrast access to the caravan park land can be gained via Reisers Road or Main Street and so the limitation of access provisions apply to the subject land. Second, the current on-ramp layout from the BP service station is not the final configuration. Rezoning of the block behind the service station as industrial land in about 1986 was approved subject to further upgrading being required. That will involve (among other things) closing the current on-ramp from the service station to the highway. Traffic will go from the highway via the service station off-ramp to the service station or the development behind it, then along a service road to Smith Street or to the highway further south of Smith Street.
In my view, given the policy concerning limited access roads, it is highly unlikely that the Department of Main Roads would have given approval for direct access from the highway to the caravan park land and from the caravan park land to the highway, of the type contemplated by the Dredge & Bell plan.
(c) Traffic engineering test
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In case I am wrong in coming to that conclusion, it is necessary to consider whether approval would have been given to the project off-ramp and project on-ramp. Much evidence was given about this matter and it is appropriate to look at it in some detail.
The Dredge & Bell plan provides for a project off-ramp, project on-ramp and other facilities (in order heading northward along the highway from the northern end of the bridge over Main Street) with the following dimensions:
Road to southern edge of off-ramp 10m
Northern edge of off-ramp 45m
Off-ramp deceleration zone 170m Entry and exit roundabout 40m
On-rampacceleration lane 440m TOTAL 705m
To the components of the Dredge & Bell plan must be added provision for: Separation to the off-ramp to George Street off-ramp; and
George Street off-ramp.
Written and oral evidence concerning these parts of the Dredge & Bell plan was given on behalf of the claimant by Mr A Sauermann, an engineer (though not a traffic engineer) who is the manager of the Brisbane office of JF & P Consulting Engineers. Mr Sauermann designed the project off-ramp and project on-ramp which was adopted in the Dredge & Bell plan (Exhibit 21). He said that he had incorporated into the design the relevant guidelines or standards contained in Chapter 6 of the Urban Road Design Manual (the "Manual") published by the Main Roads Department, which guidelines were operative at all relevant dates.
Mr Sauermann explained that 10 metres from the northern abutment of the bridge was allowed to avoid the bridge guide rail and any other obstruction. The project off-ramp tapers at a 1 in 15 ratio so that it is three metres wide some 45 metres from it's southern starting point. The Manual provides that a deceleration zone 170 metres long commences at the three metres wide point. From there the deceleration zone continues to the tangent point of the curve in the ramp which turns to the entrance to the service station site and other developments. From the tangent point on the project off-ramp to the tangent point on the project on-ramp (where the acceleration zone to the highway would commence) is a distance of 40 metres. The project on-ramp runs for 440 metres to the point where the left hand side of the taper touches the highway. Mr Sauermann noted that the length of the project on-ramp would vary depending on its geometry, so that it would be related to the angle at which the project on-ramp joins the highway. He specifically referred to Figure 6-250A of the Manual which shows the acceleration distance required from the tangent point of any curve preceding the acceleration commencement to the point closest to the highway where the taper is three metres wide. He explained that the 440 metres project on-ramp would comprise the 320 metres acceleration distance and 120 metres of taper at a rate of 1 in 40 (the minimum taper required by Figure 6-250A). It should be noted that the desirable taper is at a ratio of 1 in 50, which would be 150 metres, giving the
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project on-ramp a total length of 470 metres.
For there to be any real prospect that the Dredge & Bell plan would have been approved, all the components of the plan together with the requisite separation distance to the George Street off-ramp and the off-ramp itself would have had to fit within the available distance along the highway between the northern abutment of the bridge over Main Street and George Street. In his written report (Exhibit 21) Mr Sauermann expressed the opinion that the ramps could be accommodated within the overall distance to the Main Roads Department's standards and could provide the required access to the proposed development on the site.
Mr Sauermann estimated that the existing George Street off-ramp commences approximately 900 metres north of the northern abutment of the bridge. Accordingly, on his estimate, there would be a distance of 195 metres from the end of the project on-ramp taper to the commencement of the George Street off-ramp. However, Mr Sauermann had not measured the distance from the bridge to the start of the George Street off-ramp. Mr Dippelsmann measured the distance to be 865.883 metres and I accept that as the more accurate description of that distance. It emerged, albeit with less precision, that the existing curved off-ramp to George Street is some 60 metres long. That indicates that the distance from the bridge to the eastern edge of George Street is about 925 metres. I also accept that the distance from the northern abutment of the existing overpass bridge at Main Street to the centre of George Street was 940 metres. (See Exhibit 23 figure 1 and aerial photograph Exhibit 8)
Mr Dwyer submitted that, for legal reasons (to be discussed later), the components of the Dredge & Bell plan would need to be contained within the distance from the edge of the Main Street bridge to the start of the existing off-ramp (that is, 866 metres). It is appropriate to consider whether the claimant's proposal could have been contained in either the existing or the possible future configuration of off-ramp to George Street.
For the respondent, written and oral evidence critical of components of the Dredge & Bell plan was given by Mr Olsen and Mr VK Dippelsmann. Mr Dippelsmann is an engineer employed by Queensland Transport who, after holding various engineering positions in Queensland and the Northern Territory, commenced work with the Main Roads Department in May 1989 as Senior Engineer (Construction) for Moreton District, which includes the Albert Shire and Gold Coast. Since August 1989 he has been the Senior Engineer (Development & Planning) for Moreton District, managing the planning group responsible for planning and development control activities in Moreton District. (see Exhibit 47) That work involves dealing with development planning applications, including assessing such things as accesses to sites.
Both Mr Olsen and Mr Dippelsmann were of the view that it was unnecessary to decide whether a scheme like the Dredge & Bell plan could be accommodated, because no proposal involving direct access to and from the limited access highway would have been approved. Mr Olsen contended that in the unlikely event that the Main Roads Department would have agreed to direct access from the highway to the development, the Department would not have approved the project because an access and egress layout which fully
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conforms with the appropriate standards cannot fit into the distance between the overpass of Main Street and George Street. At the appropriate standards (generally those contained in the Manual) the following distances apply to fitting a concept as proposed by the Dredge & Bell plan:
| Bridge to off-ramp nose to achieve sight distance | 220m |
| Balance of off-ramp deceleration distance past nose | 70m |
| Allowance for turn radii at ramp intersection | 40m |
| On-ramp acceleration distance + taper | 470m |
| Separation to off-ramp to George Street (lane change) | 180m |
| George Street off-ramp taper and Deceleration Distance | 215m |
| TOTAL | 1195m |
The components that are common to the Dredge & Bell plan would take 800 metres. The total distance (which includes the upgraded George Street off-ramp) is some 270 metres longer than the available distance of 925 metres would allow. Even if the calculation is made to include the existing George Street off-ramp then the preceding components total 980 metres, some 114 metres more than the available 866 metres. Consequently, if the standards in the Manual are strictly applied, the project off-ramp and project on-ramp could not fit into that section of the highway.
The distances for components of the Dredge & Bell plan referred to by Mr Olsen can be checked against the standards specified in the Manual. For present purposes it is necessary to look in some detail at the basis of the parties' calculations of the length of some components in light of the relevant standards. Particular attention will be given to the line of sight to the nose of the project off-ramp, the length of the project on-ramp and the George Street off-ramp.
I note that the parties agreed on the distance necessary to provide for lane changing between the end of the project on-ramp and the off-ramp to George Street. According to Mr Olsen, the 180 metres distance between successive on-ramp and off-ramps "would be an absolute minimum" and would have been required by the Department at that time. Mr Sauermann agreed that 180 metres was the minimum distance required by the standard. If that distance is added to the distances on the Dredge & Bell plan the total distance would be 885 metres, more than the 866 available to the existing off-ramp to George Street. But, as will be seen, there are other reasons for concluding that the Dredge & Bell plan could not meet the relevant design standards and fit within the available distance.
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Line of sight to nose of off-ramp: Much of the disagreement between the parties involved the location of, and line of sight to, the nose of the project off-ramp. The nose is the meeting point of the shoulders of the highway and the off-ramp, or the shoulders of the on-ramp and the highway. The Manual contains specifications for a sight distance from the highway to the nose of an exit. Paragraph 6-300 states:
"On roads with a design speed of 80km/h and greater, sight distance to noses, 1.15m to 0 (Standard D) at exits and diverges should be at least that given in Table 6-300 ..." (emphasis added).
Table 6-300 "Freeway sight distance to the nose" provides that where the design speed of a freeway is 100km/h the "desirable" sight distance to the pavement surface at the nose is 360 metres and the "minimum" sight distance is 260 metres.
There was much discussion about whether the minimum requirement could be met from the highway to the nose of the project off-ramp. Mr Sauermann estimated that the nose of the project off-ramp on the Dredge & Bell plan would be located approximately 100 metres northwards of the 3 metre point which is 55 metres from the northern abutment of the bridge, that is, it would be some 155 metres north of the bridge.
As noted above, Mr Olsen said that a distance of 220 metres from the bridge to the off- ramp nose would be necessary to achieve the sight distance required by the Manual. He did so because he calculated that there was an observation point some 40 metres southwards onto the bridge (just after where a vehicle comes onto the southern end of the bridge in the left hand lane) from which the design criteria could be satisfied. From the nose a further 70 metres of deceleration distance is required, giving a total of 290 metres from the northern edge of the bridge. If those figures are correct, the off-ramp would terminate some 65 metres to the north of what was proposed for the project off-ramp in the Dredge & Bell plan. (See Exhibit 23, Figure 2) I understand that those calculations were made on the assumption that the relevant part of the highway is level. Mr Sauermann confirmed that if the service station were to be located some 60 metres or more to the north of where it is shown on the Dredge & Bell plan then some fill and other compensatory works may be required.
Mr Olsen also pointed out that Mr Maloney's revision of the Dredge & Bell plan provides for the access point to be brought further south with the problems that, not only is the line of sight to the nose inadequate, but entry to the site would be made before deceleration is completed. In his view that would have no prospect of approval by the Main Roads Department.
Mr Dippelsmann's evidence was even more critical of the Dredge & Bell plan which, he said, overlooks the visibility criteria. He marked on the Dredge & Bell plan the location of a notional off-ramp from the highway to comply with relevant standards (see Exhibit 47, Drawing 6). Because of the vertical and horizontal geometry of that part of the highway, visibility along the road surface is restricted. The visibility to the nose of the off-ramp in the Dredge & Bell plan would only be about 150 metres, instead of the required 260 metres. (Exhibit 47, Drawing 7 - Vertical Curve Detail). Mr Dippelsmann's plan showing vertical
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curve details was prepared in reliance on construction drawings and a recent survey and is an accurate representation of the current configuration of the highway. It shows that to, achieve the minimum sight line, the highway would have to be raised by 1.35 metres north of the bridge or over three (3) metres south of the bridge. This would be impractical and the cost would be prohibitive.
The alternative solution is to measure the distance to the nose from a point five metres north of the northern end of the bridge. That is the first point at which, on Mr Dippelsmann's calculations, the required visibility can be obtained. On that basis the off- ramp would commence 142 metres north of the bridge and enter the site at 357 metres from the northern edge of the bridge. That point is a further 132 metres north of the bridge than that indicated by the Dredge & Bell plan. It would place the entrance well beyond the Service Station and possibly into the next property. If such a plan were acceptable, egress from the site would have to be via Reisers Road and George Street. (see Exhibit 47 Drawings 6 and 8)
In coming to this conclusion Mr Dippelsmann relied on both paragraph 6-300 of the Manual (quoted earlier) and paragraph 6-290 which provides:
"6-290 Sight distance along the lane centre line shall be at least equal to the stopping distances given in Tables 3-610 and 4-190. The combined vertical and horizontal alignment and the clearance of lateral obstructions such as walls, bridge piers and guard rail shall be checked to ensure that adequate sight distance is maintained, See Fig. 6-290. Sight distance diagrams for vertical and horizontal visibility shall be plotted for all ramp and through roadways for a 1.15m observer and 0.2m and 1.15m objects. Where the sight distance is less than average (but equal to the minimum) for a short distance, modifications to achieve a uniformly higher than minimum standard shall be considered." (emphasis added)
There was some argument about whether this paragraph is relevant, but I accept Mr Dippelsmann's view, on the basis of his experience, that this paragraph is relevant and applicable to this case because a driver would be unable to see the nose located on the Dredge & Bell plan at a point 260 metres south of, let alone continuously from, that point northwards to the nose. If, as Mr Dwyer submitted, the overriding factor is safety, then that factor would support a stricter compliance with the standards rather than an incomplete compliance.
For reasons which are clear from his evidence about the line of sight requirements, Mr Dippelsmann's suggestion is somewhat different from Mr Olsen's suggestion for an off- ramp which meets the standards in the Manual criteria. Each of them would place the entrance a significant distance to the north of what the claimant proposed. If it were necessary to choose between them, I would prefer Mr Dippelsmann's plan because it takes account of vertical as well as horizontal criteria and because Mr Dippelsmann is better placed to know what would have been acceptable to the Department.
Mr Sauermann's evidence on this issue was vague and unconvincing. He was either unaware of, or had not appreciated the significance of, the minimum sight distance
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requirement of 260 metres in Table 6-300 in the Manual. He had not expressly taken it into account when preparing the project off-ramp component of the Dredge & Bell concept plan, although he did say that to achieve sight distance "you would have to look at a longitudinal section, levels and so forth". (transcript 218) Mr Sauermann recalled his initial impression from driving to the site was that the road was sufficiently flat to allow the standard to be met, but he had not looked at the longitudinal topography of the road. He suggested that the requirement would not be an obstacle to obtaining approval of the global concept of the Dredge & Bell plan, and that the requirements could be incorporated in the final detailed design of the off-ramp. Once approval was granted to a scheme which could fit within the available distance then (at some cost) any problems would be overcome by earthworks, though he dismissed any suggestion of putting fill into any dip in the highway. That conclusion, of course, begs the question whether it would be possible to obtain approval to such a design in the first place.
Mr Dwyer suggested that the problem with the lack of a line of sight for 260 metres south of the proposed nose could be overcome in either of two ways. First, it could be ignored because the tops of motor vehicles travelling northward where the road dips could be seen by vehicles to the south. Drivers of vehicles to the south could see any vehicles to the north turning onto the off-ramp and so could determine where the off-ramp is located. That suggestion overlooks the fact that if none of the northerly vehicles turned to the off- ramp then the motorists following them would have to rely on their own observations, impeded by the rise in the road. Even where vehicles are turning, it would not be possible to see the indicator lights on those vehicles. The suggestion also ignores the standards contained in the Manual.
Second, I understood Mr Dwyer to suggest, in reliance on two other drawings showing a
260 metres sight line (Exhibit 52), that the problem of instantaneous visibility of the proposed nose at a point 260 metres south of it or of a lack of continuous visibility from that point to the nose could be solved by trimming earth from an area to the west of the road between approximately 15 metres and 55 metres south of the nose and by raising the level from a point approximately 15 metres south of the nose to beyond the nose along the off-ramp. Again that suggestion ignores the requirements of the standard that there be a continuous line of site from the highway, along the 260 metres.
The evidence just summarised leads to the conclusion that that part of the Dredge & Bell plan showing the project off-ramp does not satisfy the line of sight standards set out in the Manual.
Project on-ramp: With respect to the on-ramp acceleration distance and taper, Mr Olsen nominated 470 metres because he adopted a 1 in 50 taper. In his view that taper is appropriate because traffic volumes on the road are such that merging onto the roadway is difficult. Mr Sauermann adopted the minimum standard of a 1 in 40 taper to calculate a 440 metres on-ramp "because it was a bit shorter", and because (rightly or wrongly) he understood that to accord with the guidelines, it would be necessary to provide a two lane on-ramp if the on-ramp were to exceed 450 metres in length (or if a truck starting at rest cannot reach the nose with a speed of 50km/h). But he said that it would have been for the Main Roads Department to determine what it required. He also suggested that it may
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have been necessary to adjust the final design to take account of such things as grades and the acceleration speed at the curve onto the on-ramp. It is apparent from Mr Sauermann's oral evidence that his design for the project on-ramp was done in conceptual terms on the basis that the land was reasonably level, without using actual levels and preparing a detailed design showing any necessary grades.
George Street off-ramp: The remaining issue relates to the George Street off-ramp, that is, whether the claimant's proposal could have been contained in either the existing or the possible future configuration of off-ramp to George Street.
There was some discussion about what would have been an appropriate amount to allow for reasonable management and maintenance costs of a caravan park such as Tandarra. At all relevant times, Mr Wright took an active role in the management of Tandarra and controlled its financial affairs. He or the other manager (who was a family member) did most of the maintenance work, except where tradesmen are required. Mr Wright said he does not draw a salary but does take an annual payment. Mr Verebes adopted the sum of $25,000 as an appropriate annual management fee, based on the amount paid to a husband and wife management team at a comparable caravan park where accommodation for the couple was provided. (Exhibit 16) Mr Ford thought that was too low and agreed that, if one were to value the caravan park as a free-standing business, a figure of about $50,000 would be appropriate. In my view, $25,000 was too conservative a figure for a purchaser other than an owner operator. It cannot be assumed that the purchaser would be the operator and $50,000 is an appropriate allowance for management costs.
Applying a capitalisation rate of 19% and an allowance of $50,000 for management fees to Mr Verebes' before valuation leads to the following result:
| Net return plus depreciation and interest | $228,096.00 |
| Less allowance for management wages | $ 50,000.00 |
| Net return per annum | $178,096.00 |
| Capitalise @ 19% shows value of | $937,347.35 Adopt $937,000.00 |
Applying those figures to Mr Verbes' after valuation calculations leads to the following result:
| 110 sites @ 3,325.83 per annum @ 70% * | $256,088.91 |
| less outgoings | $118,982.00 |
| Net profit | $137,106.91 |
| Capitalise @ 19% shows value of Loss of land $215,000.00 | $721,615.30 Adopt $722,000.00 |
| (* The same figure is reached by the following method: |
Trading at 85% in 1989 = $310,966 Trading at 70% = 70 x $310,966
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= $256,089)
I note in passing, that Mr Dwyer put to Mr Slater in cross-examination that Tandarra was purchased in 1984 for $875,000. Mr Slater had said he would have expected an increase in value from 1984 to 1989. Although Mr Dwyer's assertion is not evidence, the before value just calculated is consistent with that price.
(b) Loss of income from the Australian Posters sign
One of the few matters which was not in dispute was the loss attributable to the loss of income from Australian Posters for a sign previously located on the resumed land and facing the Pacific Highway. At the time the sign was removed the claimant was receiving $432.96 each quarter as rental for the site on which it was located. Some nine months after its removal the sign was erected on the remaining land. The lost income was 3 x $432.96, that is $1298.88.
(c) Costs incurred relating to abandoned scheme to rezone and subdivide the property
The claimant seeks compensation of $8,517.19 under this heading for such things as application fees paid to the Council and payments to JF & P Consulting Engineers, which are particularised in an annexure to Mr Verebes' report (Exhibit 6).
The respondent submitted that there is no probative evidence to show that the costs associated with the abandoned rezoning scheme were associated with the resumption. It pointed to two letters from JF & P on 16 November 1988, one to the claimant and the other to the Albert Shire Council (Exhibit 11), which dealt with the service station application. The letter to Mr Wright stated as follows:
"The attended is the alteration required to the rezoning application in order for Brooker to withdraw his appeal (as I understand it). Harry Smith has requested this some time ago as the matter is due for mention in the Local Government Court. ..."
The letter to the Council included the following:
"We refer to Council's approval to the application dated October 1, 1987 and subsequent objector appeal by Brooker via Harris Sushames and Associates.
Our client, Hibiscus Holdings Pty Ltd, has advised that it will not proceed with the service station component of the Special Facilities Zone. It is understood that this action will result in Harris and Sushames withdrawing the appeal so that the matter may be settled. ...
The proposed zone(s) will now read:
Light Industry and Special Facilities (Fast Food Restaurant and Motel)."
The respondent submitted that there are two persuasive factors which would lead to the conclusion that the service station was abandoned for reasons other than the works by the constructing authority. First, the correspondence strongly suggests that the service station was abandoned to avoid an objector appeal in the Local Government Court. Second, it is not consistent to say that the service station was abandoned because of the proposed works whilst maintaining a fast food outlet and motel proposal which would be equally reliant for financial viability on access arrangements similar to those which would be required for a service station.
I agree that the history of the rezoning application (both before and after the resumption) indicates that scheme was not abandoned as a result of the resumption and so the costs relating to that scheme are not items of disturbance. Consequently they are not recoverable in these proceedings.
(d) Cost of replacing trees
Following resumption of the resumed land, most of the trees (some 6 metres in height) were removed. Evidence about the effect (or otherwise) of those trees to retard noise and absorb fumes from vehicles and to provide visual amenity was dealt with in some
detail earlier in these reasons. The claimant contended that it should be compensated for the full replacement cost of the lost trees. Mr Wright thought it would be beneficial for the southern end of the land as a caravan park to have the removed trees reinstated. Mr Carrall prepared a quote on the basis that Cadagi trees can be transplanted up to a height of 4 metres only and gave oral evidence to support that quote of $1,800 per tree. (See Exhibit 6) Mr Carrall agreed that quite a large range of tree types could effectively replace the removed trees, but he noted that one of the attractions of Cadagi trees is that they grow relatively quickly.
Small shrubs were planted by the respondent along the roadside boundary of the remaining land, but these do not perform the functions attributed to the previous large trees. Because a road now passes much closer to the caravans than previously and the shrubs do not provide a visual screen or partial barrier to noise and fumes, it is appropriate to compensate the claimant.
The respondent submitted that the amount of compensation should be lower than the
$32,400 sought, because less expensive, fast growing shrubs could be purchased or a fence could be erected. There was limited evidence as about the extent to which a properly designed and constructed hardwood paling fence, perhaps with some planting, could provide a partial sound barrier and a visual amenity of the type previously provided by the mature trees. I am satisfied that, the claimant would be properly compensated if it received an amount equal to the cost of an appropriate fence and fast growing shrubs to soften, or enhance the visual amenity of, the fence. The only figure in evidence was Mr Slater's estimate that the cost of erecting 100 metres of fencing to screen the caravan park from the roadway would be a maximum of $6,000, that is, $60 per metre. In his opinion that should be taken into account in the valuation, particularly if it has potential to lift the occupancy rate and hence the income of the caravan park. There was little direct evidence concerning the cost of appropriate shrubs one to two metres high, but $1,000 would seem to be a realistic figure. An appropriate sum in compensation would be $7,000. (That figure does not take account of any increase in occupancy rates which might be consequent upon the expenditure of this sum on such improvements.)
(e) Cost of relocating five caravan sites which are now in breach of the Council's regulations
The claimant submits that it should be compensated for costs to be incurred in relocating five caravan sites which, as a consequence of the resumption, are located within 20 metres of the boundary with the road on the resumed land and so are in breach of standards set in the Town Planning Scheme for the Shire of Albert, published in the Government Gazette in March 1988 (Exhibit 45). The Town Planning Scheme provides that premises shall not be used for a caravan park unless caravan sites are set back at least 20 metres from any road boundary and seven metres from any other boundary of the caravan park. The boundary areas to be developed solely as tree planted buffer strips (section 36(4)).
The Council's attempts to ensure compliance with certain layout criteria predate the
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resumption of the resumed land and the present Town Planning Scheme. By letter dated December 1986 (Exhibit 7 Annexure M), the Shire Clerk wrote to the claimant's Manager requiring a site plan of the caravan park and stating that, until the plan was submitted and approved, no further transportable homes were to be placed in the park. In a letter dated 6 March 1991 (Exhibit 7 Annexure L), the Shire Clerk advised Queensland Transport that the Council would consider a relaxation of the setback requirement subject to the area adjacent to the resumption being densely landscaped, a site plan of the whole of the park being submitted to the Council for approval, compliance with all conditions of approval and the Town Planning Scheme; and a landscaping plan being submitted for approval.
On 31 May 1991, the Shire Clerk wrote to the claimant giving notice that, because the resumption of the resumed land apparently affects the setbacks of sites as required under the Town Planning Scheme, it was necessary for the claimant to submit to the Council an overall site plan showing all sites, structures, services, etc (Exhibit 7 Annexure N). The letter continued:
"The area adjacent to the resumption is to be densely landscaped and a plan of the landscaping is to be submitted for approval. Until this plan is submitted Council is unable to approve the new setbacks as affected by the resumption."
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The claimant estimates that it would cost $15,000 to relocate the five caravan sites at the same standard as currently exists, that is, $3,000 per site. (Exhibit 6 p 16) That sum may include the cost of providing on site fill where necessary. Despite the terms of the letter, Mr Wright said that the Council has not required the claimant to remove those caravan sites located within 20 metres of the new roadway. In Mr Wright's opinion it would be cheaper to relocate the sites than to lose them.
According to Mr Verebes, approximately 160 metres of boundary would be affected by the requirement for dense landscaping. It seems that the claimant has sought unsuccessfully to ascertain the Council's requirements for the landscaping alternative. Any dense landscaping would involve some expense. In Mr Verebes' opinion it would be less costly to do the landscaping than to relocate the five sites.
The respondent tendered a letter dated 26 March 1993 from the Shire Clerk to Queensland Transport (Exhibit 41) advising that the "recent upgrading of the buffer strip" to the highway frontage is "considered appropriate. In order that the buffer will eventually provide the desired screen a regular maintenance program should be implemented".
That letter does not, of itself, prove that the Council will not enforce compliance with the requirement in section 36(4) of the Town Planning Scheme. But the totality of the evidence suggests that the Council will not require that the van sites be removed, and that it will accept appropriate landscaping, irrespective of who takes responsibility for, and bears the cost of, that landscaping. Consequently, the potential cost to the claimant arising under this heading must be substantially less than the $15,000 estimated. If a fence is erected along at least part of that boundary, the cost of complementary landscaping may be reduced.
Bearing in mind the conclusion under the previous heading for an item of disturbance and that it seems that the respondent will bear at least part of the cost of meeting the Council's requirements, $5,000 should be awarded under this heading.
(f) Conclusion about claimant's loss
In conclusion, the claimant has established that, if it is assumed that the highest and best use of the land was as a caravan park both before and after the resumption, the claimant has suffered the following losses and items of disturbance for which compensation is payable:
| Loss of land | $215,000.00 |
| Loss of income from Australian Posters | $ 1,298.88 |
| Cost of replacing trees | $ 7,000.00 |
| Cost of landscaping | $ 5,000.00 |
| Total | $228,298.88 |
Compensation is payable for that amount unless it can be shown that the value of the remaining land has been enhanced as a result of the resumption and roadworks on the
resumed land.
Enhancement
The respondent argues that there has been such enhancement, and that the enhancement has more than offset any compensable loss suffered by the claimant. As noted at the outset of these reasons, section 20(3) of the Acquisition of Land Act 1967 provides:
"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."
Mr Slater suggested that, both at and after the date of resumption, the use of the land was an under-development of the site. He said that, although at the date of resumption the highest and best use of the land was its existing use, the value of the land had increased at a greater rate than the value of the caravan park. In other words, while the use of the land for caravan park purposes was commercially appropriate, at least at the date of resumption, the land had potential for industrial use which potential should be reflected in the after resumption valuation of the remaining land. Mr Verebes made a similar point about sales 1 and 2 of the caravan park on which he relied when he observed that they had potential for industrial development. The potential of the caravan park land was recognised by the claimant in its original application for a rezoning of part of the land for industrial purposes, which application was subsequently amended to remove the Special Facility (Service Station, Fast Food Restaurant and Motel) component and was amended in July 1990 "to encompass only the Light Industrial Section".
The respondent submits that access to the remaining land has been enhanced not only by the construction of the on-ramp on the resumed land but by the on-ramp as part of a road scheme at the intersection of the highway and Main Street (citing Brell v Penrith City Council (1965) 11 LGRA 156; Reeve v The Commissioner of Main Roads (1926) 11
CLLR 119, Ray v Commissioner of Main Roads (1939) 17 CLLR 171 ; Finch v The Crown (1938) 17 CLLR 13). In his report (Exhibit 7), Mr Slater described the pre- resumption and post resumption means of access. In summary:
(a)before resumption, access to the caravan park land was by way of Reisers Road only so that:
(i)northbound traffic on the highway had to travel to the land by way of the off-ramp to George Street, then along George Street to Reisers Road; and
(ii)southbound traffic on the highway had to travel via City Road and George Street, with the highway exit some two kilometres north of the subject (see plan Annexure E to Exhibit 7);
(b)after resumption and the construction of the on-ramp and nearby works:
(i)direct access is available to the balance of Lot 2 from Main Street for traffic travelling east from Beenleigh, or northbound traffic from the highway along the Main Street off-ramp;
(ii)southbound traffic along the highway can travel along the off-ramp to Main Street, then along the highway underpass and the on-ramp (see plan Annexure F to Exhibit 7); and
(iii)direct egress from the remaining land to the northbound lanes of the highway is gained by way of the on-ramp from the stub road.
Mr Slater also noted that egress from the remaining land to the southbound lanes of the highway via the Main Street underpass could, in principle, be provided from the remaining land by the addition to the on-ramp of a traffic lane to Main Street, at a cost of some $35,000 to the claimant. That amount would be in addition to the $10,000 to be contributed by the claimant to the cost of constructing the stub road. Those figures can be compared with the approximately $300,000 cost of the on-ramp and the $90,000 which Mr Dipplesmann estimated a ramp from Main Street to the site would cost to construct. In Mr Slater's opinion, had it not been for the roadworks scheme, the claimant would have had to face substantial costs to turn the land to a commercial use. (See Exhibit 7 page 8)
There was no suggestion from either the claimant or the respondent that the resumption or the roadworks on the resumed land had provided any significant benefit to the Tandarra caravan park business. Prior to construction of the on-ramp on the resumed land (at least as early as February 1988), Mr Wright indicated that he wanted left-in/left- out access to the existing ramp and it was agreed that the Department would construct that access. It was also agreed that Mr Wright would contribute the sum of $10,000.00 for those works, (Exhibit 47) although at the time of the hearing of this case the amount had not been paid. The reason for his request was unclear, but Mr Wright was emphatic that access to the caravan park by northbound highway traffic has not been enhanced as a consequence of the construction of the on-ramp. This was despite, but not inconsistent with, evidence that the Department had erected signs at various points along the highway indicating the location of the caravan park. (see Exhibit 50) Mr Verebes argued, and I accept, that for all practical purposes the route of access to Tandarra Caravan Park is the same after resumption as before, that is, via Reisers Road. The on-ramp does provide a formed, legal route of access from the caravan park to the highway in times of flood when Reisers Road is inundated. Before the resumption, it was possible to obtain emergency physical access to the highway from the caravan park land (across what became the resumed land) in times of flooding. Apart from that, the on-ramp is of no direct value to the caravan park. According to Mr Slater:
"It is doubtful that the Scheme has provided any significant benefit to the caravan park business. With a high level of permanent residents, any increase in business from passing trade would be minimal." (Exhibit 7)
Indeed, it has been demonstrated, use of the on-ramp by other vehicles has contributed to the drop in patronage of the caravan park.
Although the stub road could provide a future means of access to the caravan park, it would be necessary to relocate the office to that site and possibly block the existing Reisers Road access to the site so that park management could monitor ingoing and outgoing traffic and ensure that all departing customers have paid. The cost of those works is not justified for a park of this nature, and there was no evidence to establish that custom would increase if access were available from the stub road. (See Exhibit 6 pages 5-6)
There was evidence that, although the southbound roundabout configuration from the highway to Main Street was constructed at the same time as the other roadworks (including the on-ramp), that construction may not have taken place at that time had not the owner of adjoining land contributed a substantial amount ($400,000) to those works. That does not detract from the roundabout being, in fact, part of the scheme. It also emerged, though with less clarity, that at the time of the resumption, traffic travelling northward along the highway could reach Main Street (and hence the southern boundary of the caravan park land) by way of the off-ramp (although the off-ramp configuration has been varied so that traffic enters Main Street east of where the off- ramp once ended, and there is a ready crossover of Main Street to where the on-ramp has been constructed). Although access to the caravan park land was available to
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northbound and southbound traffic on the highway before the resumption, the routes of access were substantially longer or less direct than those now available by virtue of the construction of the on-ramp and associated roadworks on and around Main Street. In other words, access to the remaining land as a consequence of the roadworks is superior to the access available to the caravan park land before the resumption.
In his oral evidence, Mr Slater contended that the access options are at least twice as good as they were before resumption. He concluded, "While there may be argument as to the quantum of the enhancement, there can be no doubt that, as a site with commercial potential, the land has benefited greatly." (Exhibit 7 page 8)
If that enhancement is not reflected in the use of the remaining land as a caravan park, how is it evident? In Mr Slater's opinion and the respondent's submission, the roadworks at the Main Street intersection (including the on-ramp constructed on the resumed land) provide a "considerable" benefit to a commercial use and so had improved the prospects of turning the land to a higher use. In his view, they would accelerate the realisation of the potential of the remaining land for some sort of light industrial, retail or warehouse type of use, the potential for which was latent before resumption of the resumed land.
Against any such enhancement must be balanced the loss of the area of land taken from the claimant, and the loss of a length of highway frontage and some proximity to the highway together with any benefits (such as visibility for advertising) which flowed from having that frontage. Indeed, Mr Slater accepted that the commercial attractiveness of the southern part of the land was related to its exposure to the highway, which exposure (for advertising as well as retail or other purposes) was more prominent and hence superior prior to resumption.
It is relevant to note that the SEQEB easement divides that part of the remaining land with a frontage to Main Street from the southern edge of the land on which caravans are located. Large buildings could not be constructed on the easement, although it may be possible to use that land for such purposes as a carpark. (See terms of the Memorandum of Transfer of Easement Exhibit 7 Annexure D.) One or two caravan sites are located within the northern boundary of the easement but otherwise the easement land is not used as part of the caravan park. Nor, it seems, has any of the land between the easement and Main Street been used by its owners. If that land were to be developed and services were to be provided across the easement from the caravan park side then it may be relatively expensive to provide those services.
It is clear that the roadworks at and around the intersection of the highway and Main Street have improved the potential for access by traffic to that land. Mr Verebes properly observed that, although the land previously had a boundary to Main Street, it did not have good physical access to the street. He had not taken into account the provision of access from Main Street in either his before or after valuation. In his view, the prospects for developing that part of the land south of the SEQEB easement were remote both before and after the resumption.
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I accept that any development of the land on the Main Street or southern side of the SEQEB easement land would involve road construction of a significant order. There was some difference between the parties about how much land would have been involved and the cost of constructing an appropriate means of access, there being a substantial drop from the subject land to Main Street which would have necessitated earthworks. Mr Bell, for example, suggested that the landowner could have constructed an access ramp from Main Street which could have been steeper and of a lower standard of construction than the on-ramp constructed by the respondent on the resumed land. In other words, access would always have been available from Main Street via a short roadway generally on the alignment of the existing acceleration lane, thus taking advantage of existing road configurations. Mr Dippelsmann estimated that a vehicular access from Main Street to the site (but not to the highway) constructed to the Council's standards would cost $90,000. That estimate, however, was calculated by reference to the cost per square metre to the Department for the construction of the on- ramp, which construction may have been to a higher standard than either the claimant or the council might require depending on the surrounding earthworks and the nature of the development on the site. If the remaining land were to be used for commercial or industrial purposes, the Department may require an up-grading of the on-ramp and it may be appropriate to construct a southbound lane to Main Street from the stub road entrance to the remaining land. As noted earlier, the cost of a southbound lane would be in the order of $35,000.
The claimant provided a set of four plans prepared by JF & P (Exhibit 24) showing the part of the caravan park land to the south of the SEQEB easement in the before and after resumption circumstances.
Diagram A: the area of the site before resumption (2,005m²);
Diagram B:the useable area of the site before the resumption, that is, the area on which building would have been allowed taking into account setbacks from the boundaries with the Pacific Highway, Main Street and the railway reserve (1,220m2);
Diagram C: the area of the site after the resumption (934m2); and
Diagram D:the useable area of the site after the resumption, that is, the area on which building would have been allowed taking into account setbacks from the boundaries with the resumed land, Main Street and the railway reserve (460m2)
The useable area shown in Diagram B would have been the maximum available if access to it were to be obtained across the powerline easement from caravan park land to the north, by vehicles entering the caravan park land by way of an off-ramp of the type shown on the Dredge & Bell plan or by way of Reisers Road and the caravan park. If access to the site were to have been provided from Main Street, then some of that area would have been taken up by the access route. There would have been no other practical alternative access route which did not use some of the land.
I agree with Mr Slater's assessment that the only benefit that the remaining land receives while it is used as a caravan park is that the unused land to the south of the
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SEQEB easement has some potential for development which it didn't have previously without "a prohibitive cost" of providing access from Main Street. Although, as Mr Verebes said, the amount of land to the south of the SEQEB easement available for development after resumption was probably insufficient for a viable motel development, the land is not without value.
Bearing those matters in mind, it is useful to consider Mr Slater's calculations, which were made on the basis that the highest and best use of the land in the before situation was as a caravan park with a future potential for light industrial/retail warehouse development and in the after situation was as a caravan park but with improved potential for higher use. Each calculation had regard to two land components:
(a)the land used for caravan park purposes on a value per site basis; and
(b)the undeveloped land including the SEQEB easement.
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Those calculations were as follows:
Before: In this case the undeveloped area of about 5,335 square metres (including the easement area) is considered to have been of negligible added value considering the limited potential and the cost of providing access.
The before value is assessed at: 110 sites at $8,000 = $880,000
After: 110 sites at $8,500 $935,000
Plus undeveloped land
3,260 square metres @ $20/sqm $65,200
say $65,000
Total $1,000,000
Accordingly, the respondant submits, value of the property at the relevant date has been increased by the scheme of the resumption.
Mr Slater explained that he had applied an additional $500 per site in the after resumption valuation as a minimal way of reflecting the enhanced prospects of redevelopment which would be reflected in the value of the property. In light of the criticisms of the value per site method noted earlier in these reasons, it is necessary to see if there is other evidence to support such an increase. If the highest and best use of the remaining land is for light industrial or other commercial purposes then it should be possible to show that the land would have a higher value than as a caravan park. Sales evidence about industrial land provides a useful means of checking the conclusion just reached.
In valuing the southern part of the remaining land, Mr Slater relied on sales of blocks of vacant industrial land at Staplyton, the main features of which are noted in a schedule of sales (Annexure O to Exhibit 7) and on a plan (Exhibit 14). For present purposes the key features are as follows.
Sale 1 - Elliot Drive, Staplyton: The rectangular block has an area of 3.696 hectares and was sold in October 1988 for $320,000 (an average of $8.66 per square metre). It is zoned Rural C.
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Sale 2 - Pacific Highway, Staplyton: The irregularly shaped block is bounded by a creek and has an area of 3.369 hectares. It was sold in September 1989 for $440,000 (an average of $13.06 per square metre). It is zoned Light Industry.
Sale 3 - Pacific Highway, Staplyton: The irregularly shaped block has an area of
4.072 hectares and was sold in September 1988 for $500,000 (an average of $12.28 per square metre). It is zoned Light Industry.
Access to the sites is by way of a service road off the Pacific Highway. All are visible from the Highway. Mr Slater described these sales as being the best guide because they were purchased and used for uses similar to those for which he though the subject land could be used. He was satisfied that there was no better evidence at the relevant date along the highway. As Mr Verebes noted, those sales were of much larger areas and the size of the blocks influenced the rate per square metre.
The claimant produced evidence about three sales of land in Christensen Road, Stapylton to show the market for smaller sites with highway exposure but without highway access. The general location of the blocks is marked on Exhibit 14 and a plan of them is Exhibit 17. The blocks are separated from the highway by a reserve, but an access road from the highway leads to them.
The main features of the sales blocks are found in Mr Verebes' report (Exhibit 6 pages 9-10).
Sale 1:The block has an area of 2,591 square metres and was sold in July 1990 for $189,998 (an average of $73.32 per square metre).
Sale 2:The block has an area of 2,750 square metres and was sold in January 1991 for $210,000 (an average of $76.36 per square metre).
Sale 3:The block comprises two lots, one of which has visual exposure to the highway across the reserve and the other lacks visual exposure to the highway, being separated from it by a school reserve. The total area is 4,511 square metres. It was sold in May 1990 for $300,000 (an average of
$66.50 per square metre).
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The blocks have subdivision and zoning in place and services are available to them. They were sold between May 1990 and January 1991, well after the date of resumption and at a time when real estate prices were rising to a peak. For that reason, Mr Verebes placed relatively little reliance on them, particularly the January 1991 sale and Mr Slater was cautious about their applicability. Mr Verebes said that these sales would be indicative only if there was a light industrial component to the caravan park land. He agreed that, if the land were to be used for industrial purposes only, those sales would be relevant to its valuation. As Mr Slater pointed out, the other difficulty in applying these sales to the caravan park land as a whole is that they are much smaller blocks and they are part of a fully developed estate, with roadworks and other services in place. Allowance for those factors would have to be made in applying the sales, particularly to the part of the caravan park land southwards of the SEQEB easement.
The sales most applicable to the remaining land as a whole suggest that an average rate of $9 to $12 per square metre would be appropriate. On that basis, the value of the remaining land would be in the range of $318,000 to $436,000, well below the after value as a caravan park.
However, the sales are a guide to the value of the southern park of the remaining land not used as a caravan park. Having regard to such factors as the area of that land, the access now available by way of the on-ramp and stub road, the need for other services to be provided, the SEQEB easement over some of the land, and the physical and market features of the six sales just summarised, I am satisfied that the southern part of the remaining land not used for caravan park purposes had a value of $20 per square metre after the resumption of the resumed land.
In other words, after resumption that part of the remaining land is worth $65,200. Before resumption the land was not worthless and its unimproved value (as a proportion of the Valuer-General's valuation of the caravan park land) was $38,000 or $11.65 per square metre. (See Exhibit 6 page 3). Consequently, I am satisfied that the value of that land was enhanced by $27,200.
Summary and order
In summary, the findings of fact are as follows:
(a)the highest and best use of the caravan park land immediately before the resumption was as a caravan park, with some future potential for light industrial/retail warehouse development;
(b)there was a drop in the occupancy rate (and hence the income) of the Tandarra caravan park which was substantially, if not entirely, attributable to the noise and fumes from vehicles using the on-ramp on the resumed land (particularly the heavy vehicles that change gears or brake as they are driven along the on-ramp and onto the highway), but not from the construction activity;
(c)after resumption, the highest and best use of the remaining land is as a caravan
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park but at least some of the land has improved potential for a higher use, and that potential provides some enhancement of the value of the remaining land;
(d)the claimant is entitled to compensation for the diminution in the value of the remaining land due to the loss of the resumed land and damage from activity on the resumed land, as well as some other items of disturbance;
(e)the amount of compensation otherwise payable is reduced by an amount as set- off or abatement calculated by reference to the enhancement of part of the remaining land attributable to the carrying out of works on the resumed land and the purpose for which the resumed land was taken.
| The amount of compensation is calculated as follows: Loss of land | $215,000.00 |
| Loss of income from Australian Posters | $1,298.88 |
| Cost of replacing trees | $7,000.00 |
| Cost of landscaping | $5,000.00 |
| Total | $228,298.88 |
| Less amount of enhancement | $27,200.00 |
| Total | $201,098.00 |
| Adopt | $201,000.00 |
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Compensation payable by the respondent Director-General, Department of Transport is determined under all heads of claim in the sum of two hundred and one thousand dollars ($201,000). I order the respondent to pay the claimant interest on the sum of two hundred and one thousand dollars ($201,000) at the rate of 10.75% per annum for the period commencing on 1 April 1989 and ending on the day immediately preceding the date upon which the final payment of compensation is paid.
Member of the Land Court.
| Re: Claim for Compensation - Acquisition of Land Act 1967 A92-5 | LAND COURT BRISBANE 28 October 1993 |
| Hibiscus Holdings Pty Ltd v Director-General, Department of Transport | |
| OUTLINE OF DECISION | |
| Page | |
| Introduction | 1 |
| The statutory basis for assessment of compensation | 1 |
| The claimant's claim and the respondent's response - an outline | 2 |
| The history of the caravan park land | 3 |
| The claimant's primary claim - highest and best use | 10 |
| (a) Commercial viability | 11 |
| (b) Traffic planning test | 21 |
| (c) Traffic engineering test | 25 |
| (d) Conclusions | 43 |
| The claimant's alternate claim | 46 |
| (a) Tandarra Caravan Park - its features | 46 |
| (b) Effects of resumption on Tandarra Caravan Park | 47 |
| (i) Occupancy rate | 48 |
| (ii) Noise levels | 52 |
| (iii) Levels of fumes | 58 |
| (iv) Conclusions about cause of drop in occupancy rate | 59 |
| (c) Quantifying the claimant's loss | 61 |
| (i) Loss of land | 67 |
| (ii) Loss of income from the Australian Posters sign | 75 |
| (iii) Costs incurred relating to abandoned scheme to rezone | |
| and subdivide the property | 75 |
| (iv) Cost of replacing trees | 76 |
| (v) Cost of relocating five caravan sites which are now in | |
| breach of the Council's regulations | 77 |
| (vi) Conclusion about claimant's loss | 79 |
| (d) Enhancement | 80 |
| Summary and order | 88 |
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