Holmes v Council of the Shire of Laidley
[1999] QLC 108
•7 October 1999
LAND COURT,
[1999] QLC 108
BRISBANE
7 October 1999
Re: A98-52 -
Determination of Compensation consequent upon the resumption
by the Council of the Shire of Laidley, of an Easement for
Drainage purposes.
BETWEEN:
Jeffrey G. Holmes and Keran E. Woodrow
Claimants
AND
Council of the Shire of Laidley
Respondent Constructing Authority
J U D G M E N T
The Council of the Shire of Laidley, by Proclamation published in the Government Gazette on 17 July 1998 took, on and from that day, an easement for drainage purposes, described as follows:
"Easement D in Lot 26 on RP25622 on plan 904573, area 807m², part of the land in Title Reference 16767080, parish of Laidley."
Schedule 1 in the Proclamation set out the Definitions of the Easement, giving the Council "the full and free liberty at all times hereafter to enter upon the Easement for the purposes of construction and thereafter forever using and maintaining such relevant works as it deems fit from time to time, and, in so doing, the Council, by its employees, agents and other persons authorised by it shall have the right to" – (clauses 1 to 16). (It is mentioned here that references to "clause 13" in clause 13, and "clause 15.2" in clause 14.1, appear to be incorrect references.)
The claimants, Mr Holmes and Ms Woodrow, were, at the date of resumption, and remain the proprietors, as tenants in common, of Lot 26 on RP 25622. The land is situated on the northern frontage of Storr Street, Laidley, "on the south-eastern edge of the Laidley Township" in an area "surrounded by mainly residential and small acreage developments". Reticulated water, electricity and telephone services are available. Storr Street is of formed gravel construction, not kerbed or channelled, providing good access onto the land.
Lot 26 is an inside, rectangular-shaped lot with dimensions of 20.211 metres frontage and 101.389 metres depth, containing an area of 2039 square metres. It is zoned "Rural A". The land, prior to drainage works associated with the easement, was near level to gently sloping, of only fair elevation and traversed by a natural but not well defined drainage path, with small channels which fed into a dam excavation behind the site of the dwelling. The immediate street frontage of the site had been developed prior to 1994, with a modern low-set brick and tile dwelling with an enclosed concrete slab floor area of about 112 square metres. Behind the dwelling there was a 3-bay steel garage/shed.
The claimants had purchased the property for $89,990 in March 1994 and soon after had expended monies in the laying of carpets, fitting insect screens, construction of a pergola and a "weather proof" driveway. In mid-1995, work had commenced on the construction of a steel and concrete reinforced concrete block retaining wall/fence base, varying up to three courses above natural ground level, across the block about 30 metres back from the frontage alignment, then returning along the eastern and western boundaries and the western side of the frontage. A number of trees had been planted on the northern side of the dam. The dam in the natural drainage path, was in fairly close proximity to the rear of the retaining wall/fence base. The rear grounds were cleared and grassed. Old posts, steel picket and strand-wire fenced the boundaries.
Flooding Susceptibility and Drainage Scheme.
It was Mr Holmes' oral evidence that in December 1994, "there was a severe storm and there was a lot of water came down the back of the property and the front of the property". Ms Woodrow described the flooding as "disgusting" – "it used to hit the driveway, go behind the shed and then around the front of the place".
Mr G.N. Franzmann, commenced duties with the Laidley Shire Council in October 1994, as the Director of Technical Services. He gave evidence to the effect that, after the heavy downpour in December 1994, he and the mayor had been requested by residents to inspect the inundation in the Storr Street locality. He was "shocked by the extent of the inundation. I observed a sheet of water virtually over the whole of the area" ranging "for the most part between 150mm and 650mm deep". As an attachment to his tendered statement was an extract from an article in the local newspaper. Under the heading "Run-off threatens homes" a statement was attributed to Ms Woodrow and reported as follows –
"Standing at the back door, it was like a massive river – just a torrent. I was not impressed."
Mr Franzmann's evidence was that the Council, very soon after that flood event, commissioned John Wilson & Partners, (JWP), consulting engineers, to undertake an investigation of the Storr Street drainage problem. That study was completed in March 1995. The report had recommended a number of catchment management options and the construction of a grass-lined open channel from Douglas McInnes Drive (easterly of Storr Street), along the rear portions of the properties fronting Storr Street, then crossing Storr Street and Coates Street and discharging into the existing Jordan Street open channel.
After receipt of the JWP report, the Council held a public meeting for the purpose of discussing the open drain proposal with the residents of the area. Mr Franzmann said that the residents were informed that, before the Council was prepared to implement the recommended drainage proposal, "all of the affected property owners needed to agree to dedicate an easement to Council free of any compensation. It was made quite clear at the public meeting that if all the owners did not agree then the project would not proceed."
Mr Holmes and Ms Woodrow had indicated their willingness to dedicate the easement at no cost to the Council by executing an agreement to that effect on 8 May 1995.
It was Mr Holmes' recollection that there had been some rain in March or April 1995 and after perceived inactivity by the Council the decision had been taken by the claimants to construct the concrete block base wall enclosure to the immediate house yard. He said that protection of the dwelling from flooding was the primary purpose of the construction but not the only consideration. The flood protection purpose did however dictate the standard of construction which was necessary. It appears, from copies of correspondence from Ms Woodrow to the Council, included as attachments to Mr Franzmann's statement, that construction of the wall commenced in June 1995, after some difference of opinion between the claimants and a Council officer as to the status of the structure.
There was another flood event in November, 1995, when flood waters rose to the top of the still-incomplete wall. Except for the house yard, and apparently a strip of land adjacent to the rear boundary, the site again suffered significant inundation.
The first stages of the Council drainage scheme were constructed during 1996 and 1997. The overall scheme includes the construction of detention basins but as later stages, when residential developments proceed upstream. Further works will also be required at the downstream discharge point. The associated works on the subject land were completed in the absence of an easement document being executed by the owners. There was no suggestion that the works were constructed without permission or as any act of trespass. However, the owners for whatever reasons, changed their minds about granting an easement to the Council. The resumption procedure was then implemented subsequent to the works on the subject land being completed.
Easement D
The drainage easement encumbers a strip of land 40 metres wide for the full width of Lot 26, immediately adjacent to the rear or northern boundary. The encumbered area is 807 square metres. By deduction, the unencumbered area from the street frontage to the southern easement boundary would be 1232 square metres.
The easement accommodates the open grass-lined channel as designed, with battered banks to a depth below natural surface level of 1.2 metres.
Claim for Compensation
The claim for compensation as filed in the Court registry was in the amount of $29,500. At the hearing, leave was sought by Counsel for the claimants, to amend the claim as follows:
Diminution in land value = $ 5,385
Improvements and severance = $ 5,389
Injurious affection = $ 5,000
Valuation fees = $ 100
TOTAL = $15,874
Other than seeking to reserve any rights as to costs, Counsel for the respondent had no objection to the amendment and leave was granted accordingly.
Constructing Authority's Valuation
The valuation placed in evidence by the respondent, was made on the basis that the property of the claimants had been enhanced in value as a result of the drainage scheme, resulting in a "nil" compensation assessment.
The respondent agreed to the payment of the valuation fees, as claimed.
Basis of Claim
Land
The diminution in land value was based on a valuation conducted by Mr P.D. Beasley, a Registered Valuer in private practice. He had inspected the property in September 1998, after the drainage works had been completed. At that time his assessment of the market value of the property was as follows:
Land - $16,000
Improvements – dwelling $65,000
Other - $ 9,000 $74,000
TOTAL VALUATION $90,000
He had considered three sales in arriving at that valuation.
Mr Beasley assessed "the value of the easement rights over 807 square metres" as follows:
807/2039 x $16,000 say $6,335
Loss of use over the land 85% say $5,385
He stated:"I do not consider there to be any enhancement from the drain due to the fencing carried out on the property as well as the level of that land immediately adjoining the southern boundary of the drain having been raised above the normal land area."
More will be said about Mr Beasley's evidence later.
Improvements and Severance
Prior to the construction of the drain, there was fencing on the side boundaries comprising mixtures of round posts, steel pickets and barb wire, in generally only fair condition and with only nominal added value.
When the drain had been excavated through the Storr Street properties, the soil material had initially been stockpiled, external to the subject property, then apparently at the request of, or with the consent of other owners, spread and consolidated over their lands external to the easement, filling waterholes and excavations. The claimants had seen the potential for their land, being below the built-up level of nearby lands, to be disadvantaged by being in a "hollow". Mr Holmes said that although it was not in accordance with their understanding of the project design or their own requirements, the claimants believed they had little choice other than to agree to their dam being filled in and the level of their backyard raised. Trees which had been planted near the dam were removed by the respondent for later replanting but, for one reason or another, died. The level of their backyard was raised to near the top of the incomplete besser block wall/fence at the rear of the shed. Much of the fill material was of clay type and the surface area of the rear yard was compacted to such a degree that it became near impervious.
The Council had provided the claimants with tree seedlings to replant the area. However, the claimants had no success with these because, in their opinion, they were too immature and because of the nature of the fill material and the degree of compaction. Natural grasses had not properly re-established. The claimants purchased topsoil together with a number of more mature trees including fruit trees. The grounds had been sown on several occasions with purchased lawn seed.
The Council had not attempted to replace the original fencing. The rear yard had then been enclosed by the claimants with a tall round post and mesh security-style fence. The fence was constructed along the southern boundary of the easement effectively excluding the drain from the grounds.
It is the claimants' contention that they had acted reasonably in re-establishing the rear yard, as a consequence of the work carried out by the respondent. They said that the concrete block wall at the rear of the shed had been rendered useless, having been "buried" by the filling carried out.
The basis of the claim under this heading is as follows:
Re-establishment of trees and grass - $ 1,000The evidence of both claimants was that the cost of trees, topsoil, mulch and grass seeding had been about $1,000. No receipts were produced.
New fencing - $ 1,500
Both claimants said the cost of enclosing the four sides of the filled area from concrete block wall back to the southern easement boundary had been $2100.
As the fencing that had been lost had been boundary fencing on three sides, and the replacement fence comprised an enclosure with four sides, the claim of $1500 was intended to reflect an apportionment of the total cost, relative to the alleged loss which had been sustained.Replacing Concrete Block Fence - $ 2,890
The wall which existed prior to the filling had been regarded as having the dual purpose of flood prevention and the base of a proposed fence. It was estimated by Mr Holmes that replacement of the "fence" utility to the same height above the filled level, as was previously above natural ground level, would involve the laying of about 500 concrete-filled masonry blocks. That cost was calculated as being equivalent to $5.78 per laid block, comprising $2.28 as the cost of the block, $2.00 for concrete filling and $1.50 per block to lay.
It is not clear from the evidence just how the somewhat precise figure of $5,389 under the total heading, resulted.
Injurious Affection
This was, as Counsel for the claimants described it, an ambit claim unsupported by valuation evidence. It was submitted that the claim was intended to represent the claimants' perception of loss occasioned as a consequence of the character of the land having been changed from a "large town block" in a semi-rural area, to a small block adjacent to a large drain.
It was the evidence of both claimants that one of the attractions of the site to them had been its shape and size. They had seen the potential for the rear yard adjacent to the northern boundary to allow the accommodation of a tennis court. Subsequent to the construction of the drain, there was insufficient room remaining to develop the grounds in the manner they had hoped.
The overall evidence indicates that the claimants had not been aware of the flooding disability of the property at the time of their purchase. Nevertheless they were of the opinion that the rear section of the yard was still suitable for the construction of a tennis court, as it was the central section of the block which was affected by the more regular and less intense flood events.
The claimants saw the drain as unsightly and dangerous in an unfenced condition. Their decision to exclude the easement from the grounds by fencing it off, was indicative of their opinion that the drain had no utility value as private open space.
The Drainage Scheme
The initial technical investigations had been conducted by Mr S. Joughin, an engineer and the Manager of the Roads and Drainage Department of JWP. He had made the recommendations as to the construction of the grass-lined open channel which had been implemented by the Council.
Mr Joughin provided a report on that construction and was called to give evidence. His report included the following:"FLOODING SITUATION AT LOT 26, RP25622 PRIOR TO THE CONSTRUCTION OF THE STORR STREET CHANNEL
Prior to the construction of the existing Storr Street channel there was no well defined drainage path within the study area, except for small channels which interconnected a series of dams. Downstream of Douglas McInnes Drive flow was conveyed across the study area as wide, shallow sheet flow eventually discharging into the Jordan Street drain downstream of Coates Street. As a result, a number of properties, including Lot 26 RP25622 experienced inundation during periods of heavy rainfall.
Prior to the construction of the Storr Street drain, Lot 26 RP 25622 was a level lot with a slight fall from the rear to the front and from east to the west. During periods of heavy rainfall, runoff from the upstream catchment would flow east-west across the lot. The entire lot, except for a small area behind the existing dwelling, would be inundated to a maximum depth of approximately 500 millimetres during the 100 Year ARI flood event. Effectively the lot had a 100 percent probability of being flooded in any one year (ie flood immunity of less than 1 Year Average Recurrence Interval (ARI)).
FLOODING SITUATION AT LOT 26, RP 25622 SUBSEQUENT TO THE CONSTRUCTION OF THE STORR STREET CHANNEL
The Storr Street open channel consists of a grassed lined open channel with a base width of approximately twenty (20) metres and an average depth of 1.5 metres. The channel was constructed along the rear of Lot 26, RP 25622 at a depth of approximately 1.2 metres.
The channel was designed to initially provide Lot 26, RP 25622 with a 10 year ARI flooding immunity (ie 10 percent probability of inundation in any one year) and, with the construction of a number of upstream detention basins, ultimately a 100 Year ARI flooding immunity (ie 1 percent probability of inundation in any one year).
In accordance with current engineering practice the channel was designed to provide a minimum freeboard of approximately 300 millimetres.
In December 1996 JWP reviewed the as-constructed channel and drain capacity. The review indicated that due to additional lot filling undertaken by Council, the channel could cater for a 50 Year ARI flood (ie a 2 percent probability of occurrence in any one year) prior to any flow across Lot 26, RP 25622 occurring."
Mr Joughin agreed under cross-examination that the easement area was part of Lot 26 and was designed to carry flood flow in each flood event, on the average once in every year. The flooding immunity to which reference was made in his report was he said, intended to be the area exclusive of the easement encumbrance. The reference to the 100 percent probability of Lot 26 being flooded in any one year prior to the work, was intended to indicate that some flooding could have been expected, on the average, in any one year. However, the extent of the flooding would have depended on the intensity of the event. The probability of an event inundating the entire site to a maximum depth of approximately 500mm, except for a small area behind the existing dwelling, had been on the average 1 year in each 100 years.
Mr Joughin had carried out his investigations prior to the construction by the claimants, of the concrete block wall. He was unable to give an opinion as to the extent of flood immunity that the wall might have provided to the house and the immediate house yard. The event which Mr Joughin had investigated in December 1994, had been one with a 2 to 5 Year ARI. From photographs tendered through Mr Holmes (exhibit 5) Mr Joughin thought that the flood event in November 1995 would have been also one within the 2 to 5 Year ARI. According to Mr Holmes that event had reached the top of the incomplete concrete block wall, but the immediate house yard had been protected from the path of the flowing flood waters.
It was clear that the claimants remained unconvinced that the drainage works were of sufficient capacity to contain the extent and volume of flood water which they had witnessed in December 1994 and November 1995. Nevertheless, there is no professionally based challenge to the opinion of Mr Joughin as to the extent of immunity to flooding which the unencumbered area of the subject land may be expected to enjoy, consequent upon the implementation of the drainage works.
The claimants and the respondent have accepted that the works external to the surveyed easement (the filling above natural ground level) formed part of the drainage scheme. Although the easement definitions did not include the right to carry out works on the claimants' land external to the easement as surveyed, the claimants, albeit apparently with some reluctance, gave permission for their land to be filled. It was that work which gave rise to the claim for compensation for the items under the heading "Improvements and Severance". The effect of the filling works on the land external to the easement is also a significant factor in considerations relevant to the question of enhancement. In the absence of submissions to the contrary, I will determine compensation on the basis that the filling works external to the easement on the subject and other lands, formed part of the overall scheme for which the easement was taken.
Valuation Evidence
Mr Beasley
The basis of Mr Beasley's valuation was that the site value of the land was spread evenly, on a pro rata area basis, over the total area of the site. His verbal evidence however seemed to accept the theory that rear land was not as valuable, on a unit of area basis, as road frontage land and that, all other things being equal, residential site values were not affected on a direct pro rata basis, through differences in the size of the sites.
He said that he had valued the land as he had inspected it with the drainage works, including the filling, completed. That would have been expected to equate the "after" works situation, except for the actual easement encumbrance. His verbal evidence seemed to confirm that his assessment of loss in value, resulted specifically from the granting of the easement rights over the existing drain.
He agreed that, in essence, a residential site with no or minor flooding disability, would be expected to be more valuable, all other things being equal, than a site with a significant flood disability. However, in the subject case, he did not think that the value of the site, as he had inspected and valued it, reflected any enhancement as a result of the drainage scheme. He was unaware of any directly comparable sales evidence, presumably in Storr Street, which allowed a true "before and after" assessment.
He made mention of a comparable, although slightly superior, lot nearby to the east, with an easement for the same drain over the rear section and with some filling external to the easement, being on the market at an asking price of $12,000. He did not rely on the asking price as evidence of market value. However, he saw the asking price as an indication that the drainage scheme had not had an enhancing effect on site values in Storr Street.Mr McDonald
The valuation placed in evidence by the constructing authority had been carried out by Mr B.J. McDonald, Registered Valuer, and a Senior Valuer with the State Valuation Service. Mr McDonald's basis of valuation had been to assess the improved value of the property as at the date of resumption, first on the assumption that the works associated with the scheme had not been implemented, then with the works on the subject land completed and the land encumbered by the drainage easement .
In his valuation report, Mr McDonald referred to the sale price of the subject property in March 1994 in the amount of $89,990. He said that prior to commencement of the drainage scheme, eight improved residential properties had sold in the Storr Street locality, in the range from $69,000 to $125,000, while ten vacant sites of comparable size to the subject land had sold in the range from $15,000 to $23,000. Subsequent to the implementation of the works, two improved properties in Storr Street had sold, one (Lot 15) for $55,000 in November 1996 (previously sold in October 1994 for $29,000), and the second (Lot 20) in March 1999 for $70,500 (previously sold August 1993 for $73,000). No information was provided as to the extent of flooding, if any, experienced by those two properties prior to the drainage scheme. They are both easterly of the subject property and according to the contour mapping in evidence before the Court, at a higher elevation. Both properties were affected by the constructed drainage channel adjacent to their rear boundaries.
In support of his valuations "before" and "after" he had relied on sales of properties at 135 Edward Street; 95 Alfred Street; and corner Taska and Summer Streets, Laidley. The sale of the 95 Alfred Street property had also been used by Mr Beasley.
Mr McDonald offered the opinion that the rear land which accommodated the drain may have been worth 10% of the overall site value before the drain was constructed and 5% after. He saw the usage potential of the rear land, in common with other similar blocks in the locality, as being limited to such as a pony paddock or private yard space. He saw no reason why the easement could not have been fenced along the side and rear boundaries if an owner had decided to graze an animal in the grassed channel during dry periods.
In his opinion in the "after" situation, even though the easement was subject to flooding as designed, the fact that flood susceptibility of the balance area of approximately 1200 square metres had decreased to the degree estimated by Mr Joughin, made the land a safer and far more attractive residential site. It was also his opinion that with the threat of flooding to the immediate house area significantly reduced, the added value of the house and shed would logically have increased.
Mr McDonald had researched the marketing history of a number of residential properties in Laidley. In only two cases, out of eleven properties which had sold in 1994 or later then subsequently resold, had the resale been at a higher price. In the other nine examples, the resale had been at a lower level. Mr McDonald had formed the opinion, assisted by discussions with local real estate agents, that values had declined by a "conservative" 25%, from 1995 to 1998. It was his opinion that the lesser decline indicated by the Storr Street sales, would have resulted from the improved market potential of that locality since the implementation of the drainage scheme.
Mr McDonald had been aware that various improvements had been carried out to the subject property since its purchase by the claimants. On the assumption that, as at the date of resumption, the property was "improved with the dwelling, shed, dam, fencing on concrete block base, and landscaping with use of the rear flood prone land and the improvements thereon, but allowing for storms and flood water to encroach close to the structural improvements at the front of the lot" he valued the property in the amount of $78,000 with a land content of $16,000.
Then, with the property as it stood as at the date of resumption "with the dwelling, shed, fencing on concrete block base and landscaping at front (including the dam filled) but with the rear fenced off and the drain constructed" he valued the property in the amount of $83,000 with a land content of $18,000.
Enhancement of $5,000 was indicated by his "before" and "after" valuations, and, as a consequence, compensation was assessed as "nil".
Valuation Conclusions
The drainage works on the subject land formed part of a much wider scheme. The respondent constructing authority carried out the works with the consent of the owners and had expected that an easement would have been granted by agreement. At the date of the resumption, the drainage works had been completed. Compensation is to be assessed at the date of the resumption.
Mr Beasley said his valuation had been made on the basis that the works were in place. His oral evidence was that his assessment of damage related to the effect of the easement conditions over the existing drain. I am unable to accept that he had not, in fact, in assessing the "loss of use over the land" included the damage caused by the excavation of the drain.
The circumstances of this case are such that the claimants are not disadvantaged by compensation being assessed on the assumption that the land had existed in its original condition immediately prior to the resumption. Otherwise, damage would indeed be limited to the effect of the easement definitions over the existing drain on the subject land.
However the effects of enhancement, if any, would also have been in place at the date of resumption. Section 20(3) of the Acquisition of Land Act 1967, requires that "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 work or purpose for which the land is taken. (Emphasis added).
It was Mr Beasley's evidence that no enhancement flowed from the purpose for which the easement was taken. The purpose was the overall flood mitigation scheme. It was his opinion that if anything, there was now a defined channel through the locality exposing to the marketplace the fact that a drainage problem did exist, where previously it was not obvious. Nevertheless, he agreed that it would be logical to expect that, if flood susceptibility of the site was removed or reduced, the site should become more valuable as a result.
The asking price of the nearby site is of no assistance in considering the effect of the resumption scheme. Apart from the recognised principle that an unconcluded sale does not provide evidence of market value, the Court was not informed of the circumstances of the owner, the owners' local knowledge, or the previous flood history of the site. Mr Beasley had suggested that the subject land had been worth $16,000 with the works, but not the easement, in place. Mr McDonald suggested $18,000 with both the works and the easement in place. Both valuations were said to have been derived from an apportionment of the improved value of the subject property, based on market evidence of comparable improved properties.
The claimants took some comfort from the fact that Mr Beasley's after resumption valuation of the land would have been, by deduction, $10,615 ($16,000 minus $5,385) when the asking price of the comparable lot was $12,000. However, I have concluded that Mr Beasley's assessment of loss is flawed, first because of the premise on which it was founded. I do not accept, on the overall evidence, that the rear of the site before the easement encumbrance, possessed value directly proportionate, on an area basis, to the overall value of the site, that is 807/2039 x $16,000, or $6,335. Mr McDonald suggested that the original easement area, before the encumbrance would have possessed only 10% of the overall site value, then the drain and easement encumbrance would have had a 50% deleterious effect. I think he was too harsh in his estimate of only 10% but much closer to reality than was Mr Beasley's basis. I could accept that once the drain had been constructed and accommodated within an easement, the deleterious effect on the use potential of the encumbered area, and its visual impact as an adjunct to a residential site, could have warranted a loss assessment based on 85% of the unencumbered value of that rear land. Adopting Mr McDonald's "before" site value of $16,000, I could have accepted, for example, that the site value reduced to say $14,000 due to the existence of the drain and easement encumbrance, before consideration of enhancement.
In my opinion there was no validity for a further claim of $5,000 on a piecemeal basis, for injurious affection to the balance area. The property may have been altered in character and it can be accepted that the hopes of the claimants to have used the rear area for a tennis court have been disappointed. However, disappointed hopes are not compensable unless those hopes equated the highest and best use of the land and as a consequence, its market value. The value of the rear land and the loss in its use potential is capable of being considered, in relation to the overall site value. There were minimal improvements of added value on the easement area and the filled area, prior to the implementation of the scheme. The claimants have clearly re-instated the rear yard at least to the easement boundary, in an attractive manner with lawns, trees and fencing. It was perfectly reasonable that they should develop it as best suited their requirements. However, it is unreasonable, in my opinion, to seek to be compensated for the cost of re-instatement to an overall standard far in excess of that which previously existed. There was no cogent evidence as to the added value of the improvements which had existed in the rear yard prior to implementation of the scheme. It seems to me that the added value of the previously existing grass cover, planted trees, old fencing and the dam, would not have exceeded $500.
Furthermore, I was not persuaded that the concrete block wall, as the base of a proposed fence, could not still be used for that purpose. Certainly there remains no added value in the wall as a flood protection structure, but any loss in value for that purpose has been clearly replaced by the more efficient flood mitigation scheme.
It seems to me that the damage resulting from the drainage works and resumption would not have exceeded $2,500. There remains to be considered the question of enhancement.
It is the claimants' submission that not only is any enhancement incapable of identification in terms of quantum, as suggested by Mr Beasley, it did not, in fact, occur. It is submitted that the real result of the scheme was merely to redirect the flow of flood water from a natural shallow drainage path through the centre of the property to a constructed drain at the rear.
The significant difference they say in the before and after situation, is that the total site, although occasionally affected by flooding, was capable of private use, while subsequently the rear 40% of the land is rendered permanently useless or near useless, by the nature of the constructed drain.
Factual as that may be, the submission conveniently ignores the reason for the scheme being implemented in the first place. In the original condition of the land, minor flooding was clearly no more than a temporary inconvenience. However, in events of intensity of a 2 to 5 Year ARI which Mr Joughin termed "babies" in hydrological terms, the natural drainage path became a significant disability with destructive potential, sufficient to cause the anxiety expressed by Ms Woodrow as well as other local residents. The correspondence produced by Mr Franzmann indicated the not unnatural disappointment that the claimants suffered when they realised the severity of the property's flooding disability. They clearly had not been made aware of the nature of the disability at the time of their purchase and felt aggrieved by the lack of exposed information relative to the flooding history of the property. They had taken steps to protect, as best they could, the dwelling and its immediate environs from the effects of flowing water, by construction of the concrete block wall. The wall did not reduce the degree of flooding to the immediately adjacent rear yard, nor did it offer proved protection to the dwelling from flood events more intense than those experienced in 1994 and 1995.
Having heard the evidence and having come to a conclusion as to the added value which the rear land gave to the site value before the resumption, I am left in no doubt that, in a well informed marketplace, the flooding status of the property before and after the scheme, would have resulted in it being considered a safer and more desirable property consequent upon the implementation of even the initial stages of the overall flood mitigation scheme.
Mr Beasley's dilemma in not being able to prove enhancement by reference to direct market evidence is understandable. However, the expectation of enhancement was so logical, that his reasoning behind deciding that no enhancement had occurred, must have, in my opinion, been clouded by his exaggerated assessment of the extent of damage.
The piecemeal assessment of both damage and enhancement can clearly be a difficult valuation task. The "before" and "after" method of valuation has consistently found judicial approval in the determination of compensation where only partial resumption has taken place.
Mr McDonald took that approach. His research had shown that a significant decline in the value of Laidley real estate had occurred subsequent to the claimants' purchase. There was some dispute as to the degree of decline, but the extent of Mr McDonald's research provided convincing support to his considered opinion. Evidence from the Storr Street locality indicated to him that the decline there had not been as significant as elsewhere in Laidley. He believed that the flood mitigation scheme may have been a reason for that.
There was a challenge to his opinion that not only had the subject land value been enhanced by the scheme but also the added value of the main structural improvements. He was unshaken in the opinion that the property would have been enhanced overall because the significantly reduced flooding disability would have made the residential property more attractive to well informed purchasers.
While I thought Mr McDonald was somewhat optimistic in the verbal opinion he expressed relative to the deleterious effect of the drain, his formal valuation of the improved property, after the resumption, was not shown to be excessive in comparison with Mr Beasley's valuation.
There was no persuasive challenge to Mr McDonald's "before" valuation as Mr Beasley had not attempted that exercise.
All that needed to be shown, in fact, was that the improved value of the subject property after the resumption exceeded the value before the resumption, for enhancement to be proved. After that, the degree of enhancement is irrelevant.
Mr McDonald's evidence and his "nil" compensation assessment, is persuasive and is accepted as indicative of the practical effect of the resumption and the purpose for which the easement was taken.Finding
Enhancement pursuant to section 20(3) of the Acquisition of Land Act, is found to exceed damage caused to the property and no compensation is payable under the headings of claim as set out, other than for the valuation fees.
Compensation is therefore determined in the amount of One hundred dollars ($100) which was the agreed amount to be paid for those valuation fees.(RE WENCK)
Member of the Land Court
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