J.D.T Management Pty Ltd v The Commissioner of Main Roads
[1990] QLC 4
•16 February 1990
|
LAND COURT,
BRISBANE.
16th February, 1990.
Re: Determination of Compensation -
Resumption for Road Purposes.
A88-77
J.D.T. Management Pty Ltd
v.
The Commissioner of Main RoadsJ U D G M E N T
The respondent Commissioner of Main Roads resumed on 6th June, 1987 for Road purposes part of Subdivision 1 of Resubdivision 1 of Subdivision B of Portion 33 (subsequently Lot 1 on R.P. 8085) contained in Certificate of Title Volume 6127, Folio 136 County of Ward, Parish of Boyd containing an area of about 1541 square metres. Lot 1 on R.P. 8085 (hereinafter called the parent parcel) contained an area of 8496 square metres prior to resumption and is situated at the north-west corner of George Street and Boundary Street, Beenleigh approximately 600 metres west of the main Beenleigh Commercial area and about 36 kilometres south of Brisbane City. The parent parcel at resumption date was zoned "Light Industry" under the provisions of the Shire of Albert Town Planning Scheme which was gazetted on 7th August 1982. The resumed land forms a 10 metre wide strip along the frontage of 128.78 metres to Boundary Street, and a tapered strip with a maximum width of 7.3 metres along the 65.98 metres frontage to George Street. George Street is also known as the Beenleigh-Kingston main road. Accordingly it can be said that the parent parcel enjoys a premier position within the "Light Industry" zoned lands in Beenleigh.
At the time of the gazettal of the resumption, the registered proprietor of the parent parcel was Gold Coast Milk Pty Ltd but J.D.T. Management Pty Ltd became the claimant pursuant to it having entered into a contract to purchase the land on 23rd October, 1986 for $500,000. Settlement of the contract was effected after the date of resumption. More about this purchase agreement later.
On 6th October, 1988, J.D.T. Management Pty Ltd filed in the Land Court Registry a claim for compensation in the sum of $228,835 plus an unquantified sum for reasonable valuation expenses and legal fees in connection with the preparation and lodgement of the claim. The component parts of the claim are $143,000 for the value of the land resumed and $85,835 for extra costs of road construction external to the retention area associated with the building of a service station on the land after resumption. During the hearing of the matter, leave was sought and granted to amend the claim in so far as the extra costs component was concerned to $78,400. Legal expenses and valuation fees were quantified so that in the end result, the claim for compensation before the Court was in the sum of $224,200 and was made up as follows:-
Value of land resumed $143,000
Additional extra costs of construction $ 78,400
Valuation expenses $ 2,350
Legal fees $ 450
Total claim for compensation $224,200
=====
Valuation expenses and legal fees are agreed between the parties in the respective amounts claimed.
To initially indicate the extent of the dispute in the matter, I should say now that the respondent Commissioner, through registered valuer Raymond John Scougall who is in the employ of the Department of the Valuer-General, assesses compensation for the resumption in the sum of $52,000. This assessment is for the value of the land taken and the respondent Commissioner claims that the resumption and the resultant consequent roadworks do not cause any extra costs of construction for the service station and for a light industrial building erected on the retention area.
Called in evidence for the claimant were several witnesses. The first was Michael John Collins who is the principal director of J.D.T. Management Pty Ltd and a developer/builder by occupation. Mr Collins outlined the circumstances leading to the purchase of the parent parcel. His company was approached by a real estate agent to reconstruct a Milk Depot (which was on the parent parcel) on the other land in Spanns Road, Beenleigh which site Mr Collins' company was obliged to acquire. This was accomplished and under the terms of the contract of sale, ultimately the parent parcel was transferred to J.D.T. Management Pty Ltd contemporaneously with the transfer of the Spanns Road property to Gold Coast Milk Pty Ltd about two years after the contract date. The contract price for the parent parcel was set at $500,000 for stamp duty purposes. Mr Collins does not regard the sale to the claimant as having been a normal sense transaction. The property at Spanns Road cost, in the end, together with the Milk Depot construction, much more than the $500,000 J.D.T. Management Pty Ltd agreed to spend on it. Perhaps this is not of any great significance here.
Mr Collins told us that in December, 1986 an application was made to the Albert Shire Council to subdivide the parent parcel into four light industrial lots. I note however that the Albert Shire Council received the application on 3rd November, 1986, but again there is no significance in the date discrepancy. About that time Mr Collins heard of the interest of the Main Roads Department in up-grading the road system in the area and of its intention to resume 10 metres of land from the parent parcel along the George Street frontage to accommodate the necessary roadworks. The subdivisional application was approved on 22nd December, 1986 subject to certain conditions which are in evidence. These conditions include, inter alia, that all subdivided lots were to front Boundary Street due to future restricted access from George Street, and further that land was to be dedicated on the George Street and the Boundary Street frontages for road widening purposes to the requirements of the Main Roads Department and Council.
Mr Collins says that J.D.T. Management Pty Ltd considered appealing against the applied conditions but did not do so as a consequence of becoming privy to the Main Roads Department plans in the area and its intention to resume land from the parent parcel. Mr Collins learned the Department's intentions some three weeks after the Spanns Road property sale to Gold Coast Milk Pty Ltd settled.
At some subsequent time, and after the resumption giving cause to this claim, L J Hooker real estate advised the claimant company that the parent parcel was in its view suitable for the erection of a service station. It was then that the originally approved subdivisional application was withdrawn, and a further application was made for subdivision into two lots catering for a proposed service station development on the corner of George Street and Boundary Street and for a proposed light industrial development on the remaining lot facing Boundary Street. Discussions were held with a Mr Clive Jenkins of the Albert Shire Council about likely conditions to be imposed for the development. As Mr Collins recalls, he was advised by Mr Jenkins that all the requirements which were ultimately applied by Council on the subsequently approved second subdivisional application with regard to the service station development were purely at the behest of the Main Roads Department.
Since resumption, a round-about has been constructed by the Main Roads Department at the junction of George and Boundary Streets as part of up-grading the road systems in the area. Boundary Street as a roadway has been improved, and now caters for through traffic from the south of the intersection from suburbs such as Mt. Warren Park, as well as for the east-west traffic along the Beenleigh-Kingston Road (George Street). Mr Collins does not feel that these roadworks enhance the value of the service station site in comparison with its before resumption value, nor its viability notwithstanding that before the resumption, Boundary Street met George Street at a T-junction as opposed to the post resumption through traffic situation. Mr Collins was aware prior to the construction of the service station that Boundary Street was to be part of an outer ring-road bypassing the business centre of Beenleigh, and claims that the Boundary Street reconstruction results in the retention area being now well elevated above that street with increased access difficulties.
David Rodney Shaw, a consulting engineer client of the claimant company, was also called in evidence. Mr Shaw explained that as a result of the resumption and the subsequent two lot approval for subdivision, one for the service station and the other for light industrial development, J.D.T. Management Pty Ltd undertook the construction of certain roadworks and drainage on the pre-existing road and on the resumed land in accordance with the Albert Shire Council approval. In addition extra works were carried out on the retention area in the course of the construction on the service station. It is agreed between the parties that the total construction costs external to the retention area post resumption was $131,400.
Mr Shaw estimates the construction costs external to the parent parcel pre-resumption for the development of the site to have been $53,000. Accordingly the basis of the claim for the extra construction costs incurred as a consequence of the resumption is $78,400. Mr Shaw based his cost estimate for the pre-resumption works on a verbal indication by Mr Jenkins as to what the Albert Shire Council requirements would have been. It eventuated that the actual conditions applied by the Albert Shire Council on the original subdivisional approval into four lots was at variance with Mr Shaw's recollection of Mr Jenkins' purported verbal advice but again this is not significant as we are really more concerned with the subsequent two lot subdivision conditions.
Mr Shaw is of the opinion that pre-resumption, if it had not been for the requirements of Main Roads, then it would have been likely that there would have been no requirement by Council for widening of Boundary or George Streets providing Boundary Street remained a service road. It is on this basis that he calculates his pre-resumption construction costs.
Mr Shaw considers that the extra traffic generated by the subject road development would not warrant the widening of George or Boundary Streets at the subject service station site, a view I might say that is not shared by the resuming authority.
It was Ronald Frederick Cervetto, a registered practising valuer, who prepared a valuation upon which the claim for compensation for loss of land rests. Mr Cervetto valued the site prior to resumption at $581,500, and after resumption at $438,500. He apportions his "before" valuation as between the value of a 3908 square metre proposed service station site at $375,000 ($96/square metre) and a 4588 square metre "Light Industry" zoned site at $206,500 ($45/square metre). In his "after" resumption valuation exercise, Mr Cervetto apportions his valuation to a 3000 square metre proposed service station site at $300,000 ($100/square metre) and to a 3955 square metre "Light Industry" zoned site at $138,500 ($35/square metre).
Mr Cervetto stresses that at resumption date, the subject property occupied one of the most prominent redevelopment sites outside the Beenleigh commercial area with excellent exposure to traffic in George Street and in Boundary Street. He informed the Court that originally the two lot subdivisional application was made for an area of 3908 square metres for the service station, and that this area was amended post resumption to 3000 square metres. He confirms that town planning consent for the use of the retention area as a service station site was conditionally granted by Council subsequent to the resumption date in November, 1987.
Mr Cervetto claims that the resumption has a serious and detrimental affect on the economic development and operation of the site as a service station since vehicular access is restricted by the post resumption roadworks to one combined ingress and egress from each street frontage. Further, there is a median strip along the George Street frontage preventing direct vehicular access to the site by west bound traffic. There is also a median strip along the length of the frontage of the service station to Boundary Street within which there is a break to allow vehicular ingress and egress to both lanes of traffic in Boundary Street. Mr Cervetto stressed that vehicles travelling west along George Street are now unable to gain access to the site from George Street other than through the round-about, and that vehicles travelling east along George Street are required to either turn around within the site to exit to George Street, or to exit via Boundary Street necessitating a U-turn to return to George Street. These same access difficulties apply to Boundary Street. Mr Cervetto believes that with these inhibitions, many potential customers would by-pass the subject service station and refuel elsewhere. He also points to impaired visibility from Boundary Street to the site since it is filled to about three metres above that new road level.
For his valuation of the service station site, Mr Cervetto relies upon four sales of either "Special Facilities - Service Station" zoned lots or lots of other zoning with consent for service station use. These sites vary in area from 2561 square metres to 3941 square metres and range in prices from $350,000 to $500,000. Mr Cervetto sets out in his tendered valuation document the comparison, as he sees it, between the sale sites and the subject parcel. Again, for the valuation of the subject "Light Industry" zoned land he relies upon six sales of "Light Industry" zoned lots. These are mostly situated in an industrial estate to the west of the subject land, and range in area from 1621 square metres to 4024 square metres and in price from $31.13 per square metre to $55 per square metre. For the reasons outlined in his valuation document, Mr Cervetto sees his applied values in his "before and after" valuation exercise appropriate, taking into consideration the sales evidence.
Mr Cervetto is of the opinion that the highest and best use of the parent parcel and the retention area is as used as a service station site and as a light industry lot, and not for subdivision into four "Light Industry" sites.
Mr Cervetto does not rely upon the sale of the parent parcel from Gold Coast Milk Pty Ltd to the Claimant company on 23rd October, 1986 for $500,000 for valuation purposes since he gains no comfort from the value it reveals as he feels that the price was not struck in relation to the valuation of the parent parcel, but in relation to the value of land elsewhere (Spanns Road) and to the estimated cost of the Milk Depot. The sale does not, he suggests, pass the Spencer test in valuation terms.
Mr Cervetto fairly conceded during the course of the case that there would have been some risk in gaining Council approval for the two lot subdivision and for consent for the service station use within the "Light Industry" zone, and that he has made no allowance for such risk in his valuation notwithstanding that Council approval for the two lot subdivision and for service station use was not granted until after the date of resumption.
In view of the claimant's case, it was clear that the respondent Commissioner was also obliged to call several witnesses. The first was Clive Russell Jenkins, a local government engineer (formerly mentioned in this judgment) who was subdivisional engineer with the Albert Shire Council at resumption date. Mr Jenkins confirmed that he had discussions with the claimant's consultant Mr Shaw in connection with the application for subdivision of the parent parcel into four industrial lots, and about the subdivisional application into two lots prior to both applications being submitted to Council. Mr Jenkins believes the conditions under which the Council approved the two lot subdivision and consent use for the service station as advised on 24th December, 1987 are of a type and nature consistent with approval for a service station, having regard to the fact that Council regarded Boundary Street as a future ring-road. He points out that George Street is a declared main road and was therefore legally under Main Roads control in so far as the application of development conditions is concerned rather than under Council's control. Mr Jenkins disagrees with a contention made by the claimant company that, if there was no resumption, the use of the subject land for a service station and light industrial complex would not involve road development works either along George Street or on the service station frontage in Boundary Street.
Mr Jenkins does not recall having verbally advised Mr Collins that the development conditions applied by Council were as a consequence of intervention by the Main Roads Department. In the end, he says that Council sought the requirements of the Main Roads Department and after having received that Department's advice, applied the recommended departmental conditions.
Now Brian James O'Keefe, who is a civil engineer now employed by Gutteridge, Haskins and Davies but who at resumption date was in the employ of the respondent as a planning engineer, also was called by him. It was Mr O'Keefe's responsibility to assess all development applications involving Main Roads within his district of Moreton of which the subject application was one. Mr O'Keefe confirms that on 31st October, 1986, M.J. Hedges and Associates, a firm of Surveyors, made application to subdivide the parent parcel into four "Light Industry" zoned lots, and that approval was granted by the Albert Shire Council for the subdivision subject to the dedication of land on both the George Street and Boundary Street frontages for road widening purposes to the requirements of Main Roads Department and Council. He also confirmed that all approved sites were to face Boundary Street only due to restricted future access from George Street. Mr O'Keefe too also confirmed that this subdivision did not proceed.
Following application by the claimant company to Council on 19th August, 1987 (after the resumption date) for Town Planning consent for use of part of the retention area for a service station, the Main Roads Department advised of its objection to the proposal. It also advised of the required amendments to the four lot subdivisional approval which, if effected, would result upon the withdrawal of the Departmental objection. Included in the new conditions was that road widening would be required along Boundary Street and that roadworks should be designed as part of a planning layout for a future arterial road system in Beenleigh, prepared by the Main Roads Department on behalf of that Department and the Albert Shire Council. The application was approved on 19th October, 1987. Following this, and on 18th November, 1987, M.J. Hedges and Associates submitted the revised plan for subdivision of the retention area into two lots. Mr O'Keefe confirms that Council approved this subdivisional application on 24th December, 1987 subject to certain conditions, including one which provided specifically for the construction of storm water pipes from the end of the existing culvert in Boundary Street to the northern boundary of the site.
Mr O'Keefe told us that after resumption, J.D.T. Management Pty Ltd carried out the development works on Boundary Street at the agreed cost of $131,400.
Mr O'Keefe points out that the Albert Shire Council forwarded a Beenleigh Development Control Plan to the Local Government Department for advertising before the date of resumption. This plan was not gazetted until June 1988, but he says that it formed the basis of Council policy since 1984. Under the Control Plan, Boundary Street was part of the outer ring-road and the future road reservation width was to be 35 metres. The Main Roads resumption provided for a 30 metre road reservation.
Mr O'Keefe stressed that Council control over the development conditions applicable to service stations on a corner site is exercised under Clause 19 of Section 2 of the Albert Shire Council Town Plan, and that Council would take into consideration the Main Roads requirements together with the implementation of its own policy under the proposed Development Control Plan.
Table 2 of Clause 19 of Part V of the Shire of Albert Town Planning Scheme in force at the date of resumption (refer Government Gazette No. 130 P.2587) reads:-
"A service station shall not be erected on a corner site if the intersection contains traffic islands or traffic signals, or if the Council considers the intersection may require either of these facilities in the future: Provided the Council may give consent to such a site under such conditions as it may consider desirable or necessary"
Mr O'Keefe suggests that, apart from Departmental requirements in Boundary Street, a passing lane and acceleration and deceleration lanes would have been required in George Street. For the balance of the property not part of the consent Service Station application, he says that the developer would have had to provide kerbing and channelling in Boundary Street.
Mr O'Keefe says that the nett effect of the development conditions results in construction costs of $141,827 for roadworks in both George Street and Boundary Street in the pre-resumption situation. Complete details of his costings are in evidence. The conclusion to be drawn from Mr O'Keefe's evidence is that the estimated cost of roadworks in the without resumption exercise is $141,827, and in the after resumption case the agreed $131,400. This results in his contention that the roadworks associated with the resumption have saved the claimant J.D.T. Management Pty Ltd $10,400 in development costs external to the retention area and that, of the 1541 square metres ultimately resumed, 662 square metres would have been required for dedication to Main Roads should the subject land had not been resumed and the site approved for service station use.
Mr O'Keefe was the Officer who set the development conditions required by the Main Roads Department when the application was referred by the Albert Shire Council.
Mr O'Keefe provided the Court with the result of Departmental traffic counts on the intersections of Boundary Street and George Street and Hammell and George Street taken in May 1986 (prior to resumption) and at the new round-about in June 1988, May 1989 and October 1989. These are in evidence but in reality, although showing an increased traffic volume, do not assist much if they are intended to show that the service station site exposure is enhanced by the resumption. They do, however, reflect greater traffic volumes at the corner of George and Boundary Streets.
Like Mr Cervetto, Mr Scougall assessed compensation using the "Before and After" method of valuation. He values the parent parcel before resumption at $500,000 which he apportions as follows:-
1800 m2 standard site cnr George
and Boundary Streets at $90/m2 $162,000
Balance 6696m2 to Boundary Street
at $50.50/m2 $338,148
$500,148
====="Before" value adopted $500,000
Mr Scougall values the land after resumption as follows:-
1800 m2 standard site cnr George
and Boundary Streets at $90/m2 $162,000
Balance 5157m2 to Boundary Street
at $55.55/m2 $286,138
$448,138
====="After" value adopted $448,000
It is the difference between the "before" value ($500,000) and the "after" value ($448,000) which leads Mr Scougall to assess compensation for the value of the land resumed at $52,000.
Mr Scougall relies for his valuation assessment both "before" and "after" resumption on a series of some seven sales (one is a resale) of mainly "Light Industry" zoned lots in the subject area, one of which is the sale of the subject land from Gold Coast Milk Pty Ltd to the claimant company. In his sales analysis Mr Scougall properly ascribes no value to the Milk Depot improvements on the parent parcel since they were to be, and have been, demolished. It seems abundantly clear that the sale of the subject land provided Mr Scougall with the primary basis for his "before" valuation. The remainder of the sales included in his valuation schedule vary in size from 1184 square metres to 8094 square metres and in analysed unimproved value from $29.50 per square metre to $84.50 per square metre. As did Mr Cervetto, Mr Scougall indicates his comparison between the sale lots and the subject land and I note that this reveals that nearly all the sale lots are regarded by him to be in an inferior location to the subject property. One of the sales ie. valuation document reference no. 4 - is an adjoining owner sale and this shows the highest reflected value of $84.50 per square metre. The next highest sale in his schedule reflects $44.70 per square metre. I note that Mr Scougall considers the adjoining owner sale to be the best valuation basis of all the sales referred to by him, apart from the sale of the subject property, although he recognises that some adjoining owner premium would have been paid in the purchase price. I also note that of all the sales relied upon by the valuers, only one is common to each valuation exercise. It is Mr Cervetto's Sale A and Mr Scougall's Sale 5 which reflects $44.70 per square metre.
Mr Scougall confirmed that it is general policy of Council that it would apply development conditions to a consent use - such as for a service station within the "Light Industry" zone. He has made his valuation on the basis of the "Light Industry" zoning, and says there would also be some risk and a time delay factor associated with obtaining the service station consent use post resumption.
Mr Scougall explained why he selected the area of 1800 square metres as being, in his view, an appropriate area to apportion the higher corner influence site value for the subject land. He sees a block of this area as conforming more or less to a standard size site for "Light Industry" zoned land in the Beenleigh area.
Now Mr Scougall believes that the sale of the parent parcel was somewhat above market value, obviously an opinion not shared by Mr Cervetto. He claims to have resolved any doubt in his compensation assessment in favour of the claimant in basing his "before" valuation on this sale.
Now Mr Scougall explained that in his "after" valuation, he applied the higher value of $55.55 per square metre to the balance area because he is of the view that the resumption results in better access to and exposure from Boundary Street after the roadwork construction.
One further witness was called by the respondent Commissioner. He is Daniel Perry Dempsey who also is a qualified engineer and who seems to have been involved in the marketing arm of the oil industry whilst in an oil company's employ for 20 to 22 years up till June 1984. He is now self-employed. I do not propose to review Mr Dempsey's evidence at length save to say that it is his view that the subject service station has, post resumption, all the good features which did not exist before resumption. He believes that the subject service station development is a superb layout and does not feel the roadworks impose any serious difficulties with access to the site. Much of Mr Dempsey's evidence relating as it does to fuel volume sales at various service station outlets is difficult to interpret in terms of the value of the subject service station site.
Really in this case two basic matters fall for consideration. The first is to establish the loss in the value of the parent parcel due to the resumption, and the second to consider if the resumption itself was responsible for extra expenditure on road and drainage costs external to the retention area as claimed. I propose to deal with the latter matter in the first instance but before so doing, I should comment that I am led by the weight of the evidence in the case to find that the parent parcel at resumption date did possess potential for the construction of a service station on the corner of George Street and Boundary Street and an industrial building on the balance area. It may well be that the anticipated subsequent roadworks, including the round-about with its redirection of traffic and increased through traffic volume triggered as it were, the subsequent development of the retention area as such, but the parent parcel, as Mr Cervetto said, was always a very prominent corner position within the Beenleigh area fronting an already declared main road (George Street) and the secondary but well recognised future Beenleigh ring-road (Boundary Street).
The claimant company is at a disadvantage when I turn to consider the evidence about the claimed extra development costs. Firstly, Mr Shaw bases his pre-resumption estimate of development cost of $53,000 upon the presumption that no road widening would be required. He allowed only for site preparation, kerbing, earthworks, pavement costs, A.C., drainage and turfing, pavement testing and the construction of a concrete footpath. It seems clear that this would not meet the requirements of the Main Roads Department and, as a consequence, the Albert Shire Council. To this finding I am led by the evidence by Mr O'Keefe and Mr Jenkins, and as I was reminded often during the hearing, for consent use for service station use in the "Light Industry" zone, Council is entitled to impose conditions it considers desirable or necessary under the provisions of the Town Planning Scheme. It follows that I favour the evidence of Mr O'Keefe and Mr Jenkins on the point especially as I have direct evidence from these engineers as opposed to Mr Shaw's recollection of verbal advice from Council in relation to proposed development conditions. I find that no additional external road and drainage costs for the subsequent construction of the service station and the "Light Industry" development flow from the resumption. I accordingly award no compensation under this head of claim.
I turn now to consider compensation for the loss of the land. It is often difficult, if the need arises, and in this case it does, to reconcile divergent valuations since they depend so much upon opinion evidence. Here we have experienced valuers with widely differing opinions as to the affect of the resumption, but it is to be noted that there is little difference in the post resumption valuations of the retention area (Mr Cervetto $438,500 and Mr Scougall $448,000). I adopt Mr Cervetto's post resumption value to extend any doubt in favour of the claimant.
I am not persuaded to use the sale of the subject land as the basis for my determination of the value of the parent parcel. I find the circumstance of this sale somewhat unusual, and not a normal sale of land party to party for a set consideration. Indeed as events turned out, it cost J.D.T. Management Pty Ltd considerably more than the contract purchase price of $500,000 to provide Gold Coast Milk Pty Ltd with land and a new depot by way of a replacement property. I am also not influenced by the aforementioned adjoining owner sale in George Street since it involved Mr Scougall's discounting of the sale price for the assessment of value due to the adjoining owner premium paid. It is a fundamental principal of valuation, that if a sale price is to be discounted before it is used as a basis for valuation, then the reliability of such a sale for that basis is called into question.
I favour Mr Cervetto's approach to his valuation in apportioning a value to what he sees as an appropriate area for the service station at the corner of George and Boundary Streets rather than that of Mr Scougall in his apportionment of value to an 1800 square metre "Light Industry" site at that corner. Taking into consideration the length of the parent parcel's frontage to George Street (65.98 m), a resultant 1800 square metre corner would only have a depth of 27 metres. Whilst it may be that a site with an area of 1800 square metres does conform more with the area of "Light Industry" zoned sites in Beenleigh, it seems the resultant lack of depth in relation to street frontage would fail to capitalise on the advantage of both the corner influence with the notional site and its long frontage to George Street.
I am satisfied on the evidence that the subject site has benefited from greater traffic exposure since the resumption, and that some of this increased exposure is due to the roadworks carried out by the resumption authority. This is particularly so in view of the increased traffic through the new round-about from the south. I might also say that I am led to a conclusion that Boundary Street would not have remained a service road had there not been a requirement to provide for the Main Roads works. Although the Development Control Plan was not gazetted at date of resumption, Council policy at resumption date was to regard Boundary Street as a future ring-road. It is difficult to imagine that Council would not have regard to this policy in nominating conditions for consent and/or subdivisional approval of land facing Boundary Street. It is that the Development Control Plan did not, at resumption date, have the force of law, but to take a contrary view would not be realistic, notwithstanding that an aggrieved landholder would have the right of challenge to any development conditions he saw as being unreasonable, in another place. I am also convinced that at the relevant date, the highest and best use of the parent parcel, ignoring the affect of the resumption as I must, was as it was subsequently developed shortly after the resumption date as a service station and light industry development.
It is well established that, for the purpose of the determination of compensation, when land is compulsorily acquired, dispossessed owners should receive the benefit of more liberal assessments than would normally be the case in revenue determinations (vide Commissioner of Succession Duties (S.A.) v. Executor Trustee and Agency Company of South Australia (1947) 358 C.L.R. (H.C.). Applying this principal within the constraints of the evidence in this case, particularly that of the excellence of the subject site, its size in relation to the area of the lots used by the valuers as basic sales evidence, its exposure and access, I find that fair compensation for the loss of the land in the instant resumption results from the following exercise:-
Value "before" resumption
3908 m2 proposed service station
site at $90/m2 say $352,000
4588 m2 "Light Industry" zoned land at
$40/m2 say $184,000
$536,000
Less - Value "after" resumption
(as per valuation of Mr Cervetto) $438,500
Compensation for loss of land $ 97,500
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It follows that I determine compensation in the matter as follows:-
Value of Land resumed $ 97,500
Additional extra cost of construction $ nil
Legal & Valuation fees $ 2,800
Total award of compensation $100,300
Section 28 (1) of the Acquisition of Land Act 1967 -1986 provides that the Court may order that interest be paid upon the amount of compensation determined by it. Such interest may be at such rate per centum as the Land Court deems reasonable. An advance against compensation of $50,000 was received by the claimant company on 21st March, 1988. Accordingly I order that the respondent Commissioner of Main Roads pay to the Claimant J.D.T. Management Pty Ltd interest at the rate of 12.75% on the following sums for the following periods:-
.On the sum of $100,300 for the period commencing 6th June 1987 and ending on 21st March, 1988 and;
.On the sum of $50,300 for the period commencing 22nd March, 1988 and ending on the day immediately preceding the date upon which final payment of compensation is made.
Member of the Land Court.
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