Hope v Brisbane City Council - [2012] QLC 41

LAND COURT OF QUEENSLAND

CITATION:Hope v Brisbane City Council [2012] QLC 0041
PARTIES:Roy Hope and Delia Hope
(Applicants)
v.
Brisbane City Council

(Respondent)

FILE NO:AQL856-07
DIVISION:General Division
PROCEEDING:  Application to determine compensation under the Acquisition of Land Act 1967
DELIVERED ON:                  28 August 2012
DELIVERED AT:                   Brisbane
HEARD ON:  11, 12, 13 April 2011; 29, 30, 31 August 2011; 1 September 2011; 6, 7, 8 February 2012
Submissions finalised 19 July 2012

HEARD AT:Brisbane
MEMBER:Mr WA Isdale

ORDER/S:1. Compensation is assessed at Two Hundred and Thirty Thousand Dollars ($230,000) in respect of the land compulsorily acquired.
2. Interest is payable at the rate adopted for the relevant year in the table of interest rates published by the Land Court and calculated in accordance with section 28 of the Acquisition of Land Act 1967.
3. Any application for costs is to be filed and served within 14 days of this decision. Any response to such an application is to be filed and served within 14 days thereafter.

CATCHWORDS: ACQUISITION OF LAND-WHETHER UNDER-LYING SCHEME TO RESUME THE LAND
Acquisition of Land Act 1967
Integrated Planning Act 1997

Bowers and Crane v Pine Rivers Shire Council (2007) 28 QLCR 196
Brisbane City Council v Mio Art Pty Ltd and Greener Investments Pty Ltd (In Liquidation) [2011] QCA 234
De Ieso v Commissioner of Highways (1981) 27 SASR 248; (1981) 47 LGRA 412 at 417
Haigh v Minister (1994) 85 LGERA 143
Housing Commission of New South Wales v San Sebastian Pty Ltd (1978) 140 CLR 196
Ipswich City Council v Wilson; Ipswich City Council v Wilson & Downey [2011] QLAC 0006
Minister for Public Works v Thistlethwayte [1954] AC 475
Mio Art Pty Ltd v Brisbane City Council [2009] QLC 177
Mio Art Pty Ltd v Brisbane City Council; Greener Investments Pty Ltd (In Liquidation) v Brisbane City Council [2010] QLAC 007
Mount Lawley Pty Ltd v Western Australian Planning Commission [2007] WASCA 226
Nelungaloo Pty Ltd v The Commonwealth (1948) 75 CLR 495
O’Kane v The Commissioner of Main Roads (1976) 3 QLCR 331
Peter Croke Holdings Pty Ltd v Roads and Traffic Authority (NSW) (1998) 101 LGERA 30 at 50
Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565
Redland Shire Council v Edgarange Pty Ltd (2008) 29 QLCR 91
Spencer v The Commonwealth (1907) 5 CLR 418
Sydney Harbour Foreshore Authority v Walker Corporation Pty Ltd [2005] NSWCA 251; (2005) 63 NSWLR 407
The Crown v Murphy [1990] 64 ALJR 593, 595
Vyricherla Narayana Gajapatiraju v. Revenue Division Officer, Vizagapatam [(1939) AC 302 at 318].
Wilson v Liverpool Corporation [1971] 1 WLR 302

APPEARANCES: Mr A Skoien of Counsel, instructed by McCarthy Durie Lawyers, for the applicants
Mr M Williamson of Counsel, instructed by Brisbane City Legal Practice, for the respondent

Background

In 1988, the applicants, Mr and Mrs Hope, bought a parcel of land located at the intersection of Green Camp Road and Tilley…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2012] QLC 41
Decision Date: 28 August 2012

CaseChat Overview and Summary

The case of Hope v Brisbane City Council revolves around the valuation of a parcel of land, which was acquired by the Brisbane City Council. The dispute concerns the determination of the value of the land in its unencumbered state, specifically whether it has any development potential. The matter was heard in the Queensland Supreme Court.

The legal issues before the court were primarily focused on the interpretation of the Integrated Planning Act 1997, particularly in relation to the assessment of development potential in conflict with the planning scheme. The court needed to determine whether the land had any development potential at the time of acquisition, considering the relevant planning scheme and any potential impacts of development on the environment. The court also had to decide whether the hypothetical prudent purchaser would have been aware of the planning scheme constraints and the environmental impacts of potential development.

The court found that the proposed multi-unit dwelling development would have been required to be impact assessed against the whole planning scheme, including the Local Plan Code, at the date of acquisition. The court held that the land had obvious conflicts with the planning scheme, and an application for development would have been required to be refused unless sufficient planning grounds existed to justify approval. The court further found that the hypothetical prudent purchaser would have been aware of the planning scheme constraints and environmental impacts, and would not have been able to point to any planning grounds that might warrant approval of the development. The court concluded that the land had no development potential in its unencumbered state.

The final orders of the court were that the Brisbane City Council's acquisition of the land was valid, but the council was to pay compensation to the landowners, taking into account the development potential of the land at the time of acquisition. The court determined that the land had no development potential, and the compensation payable was to be calculated accordingly.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In this area a proposed multi-unit dwelling development would at the date of acquisition have been required to be impact assessed against the whole planning scheme including the Local Plan Code,[38] in respect to which it has obvious conflicts.[39] At that time, the then Integrated Planning Act 1997[40] relevantly provided:[38] Exhibit 12 Ch 4 p.352e, 8 and Ch 3, p.5, 2.5.2.[39] T2-30 L30 - T2-33 L60.[40] Reprint 4N, reprinted as in force on 1 July 2003.3.5.14 Decision if application requires impact assessment(1) This section applies to any part of the application requiring impact assessment.(2) If the application is for development in a planning scheme area, the assessment manager’s decision must not—(a) compromise the achievement of the desired environmental outcomes for the planning scheme area; or(b) conflict with the planning scheme, unless there are sufficient planning grounds to justify the decision. The highest and best use of the land, upon which the applicants’ valuer, Mr Crawford, has based his valuation, namely a multi-dwelling development, is in conflict with the planning scheme such that an application for that development would be required to be refused unless sufficient planning grounds would justify approval. On the evidence, a prudent purchaser would be aware of that. The hypothetical purchaser would also be aware that they were not in a position to point to any planning grounds that might be sufficient to allow the scheme to be approved. The possibility that there had been a change in circumstances in the locality such that a conflict with the planning scheme would be warranted was not supported since, as Mr Ryan pointed out, there was not “development occurring immediately around or adjacent to the property”[46] which is, understandably, the location where such development would be relevant to and likely to be influential upon a decision made on a development application.[46] T2-65 L38. When considering a development of the sort contemplated by Mr Crawford, the purchaser would understand that it would necessitate placing some fill in the waterway in order to construct the two envisaged pads upon which buildings could be constructed above flood level. The land is entirely with a waterway corridor[47] so proposed filling within it requires the purchaser to be mindful of the Filling and Excavation Code.[48] Performance criterion P3 of this code is that filling or excavation must not cause any increase in flooding or drainage problems. The first acceptable solution is that no filling or excavation be located in any waterway corridor as shown on a planning scheme map and defined in the definitions. Other solutions may be acceptable but filling in the waterway corridor is a sensitive matter.[47] Exhibit 12 Ch 4 p.352l and 352m. The Waterway Corridor is such because it is so designated on the maps; see Exhibit 28, the definition of Waterway Corridors.[48] Exhibit 12 Ch 5 p.83 at p.84, P3. Reference so far has been to the Wakerley Local Plan, effective on and from 1 January 2002[49] and clearly relevant at the date of resumption, 15 August 2003. The question first posed in the List of Disputed Issues set out in [16] is whether that Local Plan, in Exhibit 12, is to be used to determine the development potential of the land or whether Exhibits 14 and 19 are to be used. The difference is that Exhibit 14 is, and Exhibit 19 contains “Map B: Wynnum/Wakerley South” which shows the subject land to have a designation of “Potential development area” and to have on it a much smaller area of “Environmental and waterways corridor” as compared to the maps in Exhibit 12.[49] Exhibit 12 Ch 4 p.352a and following. The date of effect is printed at the foot of each page.

Ratio Decidendi

Legal Principle Established

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