Kuhn v The Crown
[1998] QLC 88
•9 April 1998
|
BRISBANE
9 April 1998
Re: Claims for Compensation - Acquisition of Land Act 1967
(A94-92, A94-93)
Geoffrey G and Hilary R Kuhn
v.
The Crown
Geoffrey G Kuhn
v.
The Crown
(Heard in Cairns)
Introduction
Rainforest covers areas of the Macalister Range west of Cairns. These areas are considered to be so ecologically significant that they have been incorporated into the Wet Tropics World Heritage Area as part of what ecologists have called the “Black Mountain Corridor”. Approximately 145.45 hectares of that Corridor were once owned by the claimants, Geoffrey and Hilary Kuhn - part of the land as joint tenants and part by Mr Kuhn. The claimants appreciated the ecological value of the land and urged the Queensland Government to acquire it in order to obtain the level of environmental protection which it did not have as privately owned freehold land.
Discussions about the proposed boundaries of the rainforests for World Heritage listing date back to 1987. In 1989 the claimants were apprehensive that a high voltage powerline might be built by the FNQEB across their properties. The acquisition process in relation to the land taken for National Park purposes did not commence, however, until about April 1991. That process did not go as smoothly or as quickly as the claimants would have liked. They had hoped for a prompt, voluntary acquisition process. It became, at the claimants’ request, a compulsory taking under the Acquisition of Land Act 1967.
By notice dated 28 May 1992, Mr Kuhn was advised that the Crown intended to take approximately 80 hectares of his land for National Park purposes. The land was in two parts which were portions of Lot 109 on Plan SR 146, County of Solander Parish of Mowbray (the “original Lot 109”). Lot 109 then had an area of 106.1288 hectares.
By notice on the same date, Mr and Mrs Kuhn were advised that the Crown intended to take about 64 hectares of their land for National Park purposes. That land was part of Lot 108 on Plan SR 146 in the County of Solander Parish of Mowbray (the “original Lot 108”). Lot 108 then had an area of 91.0543 hectares and adjoined Lot 109.
By proclamation published in the Queensland Government Gazette on 11 December 1992, the Governor notified and declared that the following parcels of land were taken by the Crown for National Park purposes:Lot 998 on Plan 852235 (formerly part of Lot 108) containing an area of 65.15 hectares
Lot 999 on Plan 852235 (formerly part of Lot 109) containing an area of 80.3 hectares.
The taken land was vested in the Crown on and from 11 December 1992, which is the relevant date for determining compensation. The retained land comprised 25.89 hectares of Lot 108 and 25.8 hectares of Lot 109.
Although the land was taken by the Crown at the urging of the claimants, there was a sticking point. The parties could not agree on the amount to be paid to the claimants as compensation. In December 1994 the matters were referred to the Land Court.
The claims for compensation served on the Crown in December 1992 were as follows:
Lot 998 valuation of land $ 895,840.00
Lot 999valuation of land $1,104,160.00
severance $ 162,000.00
Total $2,162,000.00
plus unspecified sums for interest and for disturbance in the form of valuation fees, legal costs and consultants’ fees.
At the hearing valuation evidence was led for the claimants in the sum of $1,900,00.00 as compensation for the land taken (Exhibit 6), to which amounts for interest and disturbance would be added. There was no formal application under s 24(3) of the Acquisition of Land Act 1967 to amend the claim for compensation.
By the end of the hearing the parties had agreed that the amount payable for disturbance costs was $67,150.00, made up of $13,180.00 for the construction of alternate water supplies to the retained parts of Lots 108 and 109, and $53,970.00 for legal, valuation and other consultants’ fees.
The claimants did not come to the hearing empty handed. They had been paid, at various dates in 1993, advances totalling $1,236,000.00 comprising:
$370,000.00 for Lot 998
$449,950.97 for Lot 999
$416,049.03 for the aggregation.
Those advances included components for the value of the taken land, interest, and amounts for disturbance (Exhibit 7).
Although the resumed land was owned in part (Lot 998) by Mr Kuhn and in part (Lot 999) by Mr and Mrs Kuhn, the case was run on the basis that there was one resumption of one aggregation of land.
Assessing the amount of compensation payable
The criteria for determining the claimants’ entitlement to compensation are set out in s.20 of the Acquisition of Land Act 1967, the relevant sub-sections of which provide:
“Assessment of compensation
20(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 powers 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.”
Although the original claim served on the Crown nominated severance as a separate compensable item in relation to Lot 999, the submissions put in these proceedings were confined to the value of the land taken plus amounts for interest and disturbance. Compensation for any severance items (including severance from Kauri Creek) was included in the other figures.
The determination of the amount of compensation payable involves a consideration of the use to which the parcels of resumed land together with the retained land could have been put had the land not been acquired by the Crown.
The subject landThe subject land comprised the original Lots 108 and 109, known as “Shady Grove”, Pinnacle Road, Julatten. Mrs Kuhn described the original Lot 109 as “our home property”. Mr Kuhn purchased it in 1974. The claimants purchased the adjoining Lot 108 from neighbours in 1988.
The land is located near Julatten on the Atherton Tableland, about 33 kilometres, or 30 minutes travel time, by road south-west of Port Douglas and some 75 minutes drive by road from Cairns. Fair, all weather access is available to the subject land from the Mossman-Mount Molloy Road (a bitumen sealed two lane highway) then along bitumen sealed Council road and then formed earth and gravel road. At the date of resumption the bitumen seal extended to Flin’s Creek. Since then the road has been sealed to English Road. The original Lot 109 included a strip of land for a private access road.
The subject land was zoned Rural “A” under the Mareeba Shire Town Plan of 1982. Although electricity and telephone services are available to be connected in the locality, the subject land was not connected to electricity and only Lot 109 was connected to Telstra.
The subject land comprises undulating to hilly country. Kauri Creek, a permanent spring fed watercourse, flows (though not always continuously) from the western section of the original Lot 108 through to the south-eastern section of the original Lot 109 and on to the Mowbray River. The land is broken by numerous gullies and minor watercourses, mainly tributaries of Kauri Creek. Another watercourse runs parallel to the northern boundaries of the Lots.
The north-western section of the original Lot 108 includes Red Hill (455 metres high) from which distant sea views are available. A moderate ridge runs from Red Hill to the south-east along the western boundary of the Lot, with views to the west. The original Lot 109 contains a hill (374 metres high) in the south-eastern section, falling to more gentle slopes to Kauri Creek. Distant sea views and views over the Mowbray Valley are available from a low ridge which runs along the north-eastern boundary.
The catchment of Kauri Creek comprises more gentle slopes, falling away to the Mowbray River Valley. The Mowbray River is located close to the southern boundary of the original Lot 108 and the top of the Big Mowbray Falls (“Mowbray Falls”) commences approximately 350 metres from that boundary.
The northern, eastern and southern boundaries of the subject land adjoin the World Heritage Listed State Forest 42 on FTY 1538.
The subject land is in the narrowest section of the “Black Mountain Corridor”, a low rim of rainforested hills which abut the Mount Carbine Tableland Faunal Zone in the north and the Lamb Range section of the Atherton Uplands Faunal Zone in the south. The area between Kuranda and Julatten has a drier climate than is generally encountered along the Wet Tropics coast. Changes in climate have resulted in differences in the vegetation. As the climate dries, the Corridor converts to open forest and the rainforest disappears. When, as at present, the rainforest communities are re-established, the renewed exchange of genetic material between the zones to the north and south is allowed.
The vegetation community in the Corridor is relatively common within the region, with 37,153 hectares of the 48,178 hectares being within the World Heritage Area. It occurs as a fringe rainforest adjacent to fire-prone eucalypt forests.
More specifically, the vegetation on the subject land is predominantly mesophyll vine forest with areas of wet sclerophyll forest and notophyll vine forest in proximity to the Mowbray River Valley. Red Hill and the eastern sections of the original Lot 109 have open low to medium woodlands timbered predominantly with eucalypts such as bloodwood, bluegum, Moreton Bay ash, ironbark and cadagi. Where clearing has taken place, acacia is the dominant regrowth.
In his written statement of evidence, Mr Stephen Goosem, Senior Principal Scientist with the Wet Tropics Management Authority, stated that these “drier and successional rainforests are not expected to contain species of exceptional evolutionary significance as is the case in many parts of the Wet Tropics such as the refugial Daintree Lowlands and other very wet rainforest areas” (Exhibit 12). Apparently Mr Goosem had not been on the land, and a more detailed account of the flora and fauna on the subject land is contained in an environmental audit which was commissioned by the claimants and conducted by Mr Andrew Small (Exhibit 33). That audit identified various features of the environmental significance on the subject land. Some 164 species of birds were identified as visiting or being regularly on the land. The property seems to be the northernmost distribution of the swamp rat (which had only been found previously at Lake Barrine) and also appears to be the home of pogonomys, prehensile tailed rats no live specimens of which have been captured. Rare flora include the Julatten tamarind and the cassowary satinash which are not found in a national park or other protected area. Eight plant species which are listed on the Queensland Herbarium database as being rare and/or threatened were found on the subject land. Further research may reveal more species. Mrs Kuhn highlighted the significance of having the relatively rare giant pendas, Xanthostemon whiteii, on the subject land. The trees are estimated to be at least 500 and possibly 1,500 years old.
Various statements were made extolling the natural attractions of the subject land. For example, Mr Alan Rector, a tourism management consultant, wrote of being “struck by its unique position on the ridge overlooking the Mowbray Valley and the sea beyond as well as the lush rainforest on and surrounding the property” (Exhibit 6 Annexure D). Mr John Wake, a valuer called by the claimants, described the property as “sited in a unique setting with a vista to the surrounding mountain ranges and National Park views as well as expansive seaviews over the Mowbray Valley” (Exhibit 6). He could think of no other properties in Julatten that would have the same combination of features.
Although the subject land has attractive topographic and other features or qualities which make it suitable for use for eco-tourism purposes (a matter discussed in more detail below), the qualities of the land should be considered in context.
First, the subject land is not unique in being the location of particular (including endangered) species of flora and fauna. Mr Goosem said that the number of rare and threatened species varies “quite substantially throughout the region” and that some properties north of the Daintree River might have up to 30 on a block.
The relationship of the subject land to land in the region is evident from the fact that the resumed land was acquired as part of the “Black Mountain Corridor”. In his written statement Mr Goosem concurred with the assessment apparently made in 1990 and 1991 by Mr Geoff Tracey, an international expert on tropical rainforests, that “the most important value of the vegetated portions of the [resumed land] are their role in the connectivity of rainforest habitats along the Macalister Range.” That linkage applies to flora and, to a much greater extent, fauna.
Mr Goosem concluded:“If it were not for its strategic position at the narrowest section of the Black Mountain Corridor it is unlikely that these blocks of land would be considered for acquisition. Acquisition is, however, very desirable in this instance to ensure appropriate management for the maintenance of the integrity of this very narrow link.” (Exhibit 12)
His oral evidence to that effect was unchallenged and is supported by Mrs Kuhn’s evidence and sources cited by her, as well as by Mr Wake’s report and by the detailed report of Mr Small, which described the narrow corridor as “critical to the flow of genetic material from one area to another”.
Second, the subject land was not in a completely natural state when the resumed land was acquired. Although the land is not used, and is apparently unsuitable, for agricultural purposes, about 60 acres of land were cleared about 30 years ago for corn growing. There is acacia regrowth on that land. Old bullocky tracks from logging days have been maintained by Mr Kuhn. Trees have been felled for use as timber veneer and flitches of cabinet grade timbers. There was a commercial harvest in reasonably recent times and a fairly intensive harvest in 1991. The latter harvest was on, but apparently was not confined to, land that was not resumed. Mr Kuhn has operated a bush sawmill on Lot 109. The timber which was harvested and sold, or was cut and sliced by Mr Kuhn, was apparently acacia species from regrowth (not old forest timber). The claimants gained income from the timber harvesting, milling, flitching and slicing, as well as from sustainable harvesting of forest products ranging from seed collection to harvesting of tree fern, ephiphytes and orchids. Other activities on Lot 109 included the clearing of land for the construction of buildings, such as the homestead and machinery shed, and the horse stud.
In his report on a study of the flora and fauna on and around the subject land, Mr Small wrote that the patterns of vegetation distribution and the species composition of the study area had been “heavily influenced by the activities of Europeans in the recent past”, including logging and clear felling. He concluded that “human activity has had a marked impact on the integrity of the forest structure” (Exhibit 33).
Although, in the area in which the subject land is located, the structural integrity of the rainforest has been “heavily compromised with sometimes severe logging practices in the past”, Mr Small stated that there is no recorded information of past floristical compositions for the Kauri Creek area to suggest whether or not logging of vital habitats has reduced the chances of long term viability for local populations of some plant species. In areas of little human impact the forest structure and floristical composition are similar in some ways to that of some areas of the lower Daintree (Exhibit 33).
Highest and best use of subject land
At the date of resumption the subject land was used as one large residential site. A residence, associated infrastructure and a small sawmill were located on the original Lot 109. Lot 108 was not separately used for any specific purpose.
Agreement between the parties: By the time of the hearing, the parties had agreed that the highest and best use of the subject land was for eco-tourism purposes. Because the notion of eco-tourism was central to the resolution of this case it is appropriate to review how the parties came to that conclusion and then consider those features of eco-tourism that are relevant to the matters in dispute.
Mrs Kuhn stated that, by 1992, the claimants’ advisers had agreed with the claimants that eco-tourism was “the most appropriate and viable” usage of the subject land. That conclusion had been reached “after extensive research on the regional tourism markets and after much consideration of other land use options for our properties”, including possible subdivision of the land. According to Mrs Kuhn, the valuations of the subject land which the claimants commissioned in 1989 (Ballieu, Knight & Frank) and 1990 (DJ Jones & Co) had emphasised that eco-tourism is the highest and best use of the land (Exhibit 5).
The valuation report prepared for these proceedings by Mr Wake referred to the claimants’ actions to “optimise the value of their asset in an ecologically sensitive manner, linked to tourism” and to a report by Mr Rector that “deals with the features of the property which, in the view of the author, give it potential as an Environmental/Experiential Tourism Resort unparalleled at present in northern Queensland”. Mr Rector stated that the topography and size of the subject land made it possible to construct an eco-tourism resort “in an unobtrusive manner in sympathy with and complementing the natural surroundings”. He considered that the land had potential for a world class tourist facility (Exhibit 6 Annexure D) and the design concepts considered by the claimants were “very much advanced” on anything that had been built in Australia. Mr Wake formed the opinion that the property was “unique along with the properties in the lower part of Mowbray Valley in that it offered ... the only potential in the Port Douglas area for expansion of nature based tourism”. He considered that such a development is the highest and best use of the subject land as at the relevant date (Exhibit 6).
The Crown did not always share the claimants’ view about the highest and best use of the subject land. Apparently it was only once the opinion of Mr Jeffrey Weigh had been received that the Crown’s position changed. Mr Weigh is the Managing Director of Taylor Byrne Tourism and has considerable experience in the Queensland tourism industry. He inspected the subject land in June 1995 for the purpose of determining whether it had negotiable tourist potential as at the date of resumption and, if so, the extent of the potential and its impact on the value of the land. Having considered various components that are required before a site can command a premium value for tourism and the state of the tourism market at the date of resumption, Mr Weigh concluded that the site would have had a negotiable tourist potential at the date of resumption (Exhibit 15).
The valuation report tendered by the Crown in these proceedings (Exhibit 11) was prepared by Mr Kevin Allan, a senior valuer with the Department of Natural Resources. He stated that the highest and best use of the subject land “would be Tourist Related, ie Eco-Tourism” and the land would “be best marketed as a single large Tourism related site”. Mr Allan listed the attributes for a successful, if low-key, tourism venture on the land as including large diversity of forest types, diversity of bird life, views of Mowbray Valley, access to Mowbray River Falls, and relative accessibility from major centres in the region.
The assessment of valuers concerning the highest and best use of the subject land was consistent with the designation by the Mareeba Shire Strategic Plan (in existence but not in force at the date of resumption) of the subject land as being in a Tourist Facilities location. The plan was adopted by the Council in February 1993 and was gazetted in January 1994. Under that Preferred Dominant Land Use, locations designated for future tourist facilities are considered to be ideally suited for such facilities because of their locational characteristics, physical features, or the views they command or a combination of these features. Most are readily accessible and all are considered to be capable of development without undue detrimental effect on amenity. In February 1993 the Council indicated its support for an application for Consideration in Principle to use the retained Lot 108 for the establishment of a Tourist Facility. On 8 June 1995 the Council granted approval for the rezoning of Lot 108 to “Special Use (Tourist Resort and Accommodation generally in accordance with Plan of Development Parts A & B)” zone.
I am satisfied that at the date of resumption the highest and best use of the subject land was for eco-tourism purposes - a potential, but unrealised, use of the land.
The features of eco-tourism: The evidence indicates that in 1992, and even at the time of the hearing, the concept of eco-tourism was not clearly defined. There was, at best, a general understanding of what was involved. Mr Weigh thought that the “definitional issues are fairly difficult”. Mrs Kuhn said that there is an ongoing debate about what does and does not constitute eco-tourism. Most definitions include a requirement that the tourism be ecologically sustainable. In that sense it may include adventure elements but only where the experience does not degrade the environment. She quoted the definition advanced by Ceballos-Lascurain in 1987 that eco-tourism is “travelling to relatively undisturbed or uncontaminated natural areas with the specific objective of studying, admiring, and enjoying the scenery and its wild plants and animals, as well as any existing cultural manifestations (both past and present) found in these areas.” (from R Blamey (1995) The Nature of Eco-tourism: Occasional Paper No 21, Bureau of Tourism Research, Canberra, page 14, quoted in Exhibit 5). Mrs Kuhn stated that “active, adventurous, nature and culture related travel” fall within the definition of eco-tourism.
A distinction was drawn between “hard” and “soft” forms of eco-tourism. Harder eco-tourism might involve long treks and camping out. Softer eco-tourism might involve more amenities for the tourist and less travel. Although Mr Weigh was not familiar with the labels hard-edge and soft-edge eco-tourism, he suggested that there are degrees of adventure in this field. In his opinion, the soft end tends to comprise a more mainstream market. Mr Rector referred to “degrees of experience” in rainforest eco-tourism. In his opinion, “the ideal experience is to be housed and enclosed and encompassed within the framework of the rainforest”. The experience may be enhanced by, for example, a brook but not necessarily (if at all) by adjoining coastline.
It is apparent from this and other evidence that the concept of eco-tourism has at least three components, namely, the nature of the destination, the purpose of the visit, and the means by which a person effects a visit to such a destination. There are also degrees of exertion and adventure associated with the eco-tourism experience.
With respect to the first component, the eco-tourist’s choice of destination is determined by such factors as its special (or unique) and unspoiled natural resources, reliable counterparts and outstanding professionals and programs. Apparently those factors are more important than low cost, comfort and security. Wilderness is a desirable but not essential component. Attention was given to the value of natural water as an attraction in nature-based tourism destinations, whether they be forest or desert regions. More specifically, Mr Weigh considered that running water and lush rainforest go well together. Thus, the imagery of rainforest meeting the reef had been an important feature in the tourist appeal of the Daintree.
It seems that natural areas and formerly remote places are now highly prized locations. Consequently tourism has to be planned and managed to avoid degradation or a level of visitation which leads to destinations being “loved to death”. The Wet Tropics area of the Cairns region is considered to be a particularly high activity area for eco-tourism.
With respect to the second component, the preferred activities of eco-tourists (as part of the nature-based market) include snorkelling/scuba diving, swimming, bushwalking/trekking, wildlife observation (including birdwatching), study of flora and fauna, boat trips (such as canoeing), mountaineering, nature photography and meeting local and indigenous residents.
There was some contention about the nature of the eco-tourism market. Mrs Kuhn referred to studies which yielded a profile of ecotourists as persons who are aged between 35 and 70 years of age, with tertiary education, a high disposable income, and an extended recreational period on an annual basis. Such people are experienced travellers and are environmentally conscious. They seek challenge and diversity. Beyond that group of people, the backpacker with a relevant preference for nature-based activities is also considered to be an eco-tourist. Mr Rector suggested that, as the average age of visitors to this type of facility would be 35 years or older, most people will not be wanting to experience activities involving high levels of physical activity.
Mr Weigh was cautious about distinguishing eco-tourists from any other group. He preferred to describe nature-based tourism as a product and said that people who look for nature-based activities usually want them as part of a wider product. He suggested that the “hard edge” of the eco-tourism market is “fairly thin”, in the sense that there are insufficient numbers of such tourists and, in his firm’s experience, they are “not particularly high tariff individuals”.
With respect to the third component it is apparent that some places are easier to reach by conventional forms of transport. It is less important how one reaches the site than how one travels across the site to ensure minimum impact on the environment.
According to Mrs Kuhn the rapid growth of the eco-tourism market has been an international phenomenon. One study has shown that in the 1980s, while tourism overall increased at an annual rate of 4 per cent., eco-tourism increased at an annual rate of between 10 and 30 per cent. Apparently the World Tourism Organisation forecast in 1993 that most of the 86 per cent. increase in worldwide tourism receipts projected by the end of the century will come from the types of travel that comprise eco-tourism (Exhibit 5).
There was some argument about whether eco-tourism leads or follows the mainstream tourist market. According to Mr Weigh, it is reasonable to suggest that eco-tourism as a niche market would develop behind the development of mainstream tour package tourism to the region. Specialist niche markets tend to be able to survive because of the maturity of an established destination with comprehensive and regular aviation services and sophisticated visitor infrastructure. Thus one might expect some lag for the development of specialist niche products (Exhibit 15). On the other hand, Mr Rector and Mrs Kuhn considered that in most instances it is eco-tourism that precedes the main tourism thrust into a region. They cited experience from the mid-1980s, when eco-tourists visited the Daintree/Cape Tribulation area, to the 1990s when hundreds of thousands of tourists visited the area annually. As Mr Rector put it, “that’s mass tourism and it’s followed the eco-tourist”. Mr Weigh agreed that eco-tourism has led the market in some parts of the world, but thought that tourism in far north Queensland expanded with the opening of the Cairns International Airport. He also agreed that there had been sectional interest in the Daintree area for some considerable time, but that its reputation and market visibility had been associated with the World Heritage listing and the marketing of far north Queensland generally. In his written statement he expressed surprise that eco-tourism should be such a topical issue, particularly in Far North Queensland, “since it has for many years based its tourism industry product on nature and culture”, including such places as Kuranda, Daintree, Mossman Gorge and Cape Tribulation (Exhibit 15).
I consider that the witnesses were not as far apart in their analysis as they may have appeared to be. Whatever their differences, the question whether eco-tourism leads or follows the mainstream market was peripheral to the matter in dispute in this case. By the date of resumption there was a strong tourist industry in the Cairns region and an important component of the market was nature-based, or eco-tourism.
Eco-tourism in the region of the subject land: Much of the information about the history and nature of eco-tourism in the region of the subject land was provided by the claimants, especially in the written report of Mrs Kuhn (Exhibit 5).
Cairns was the gateway and hub of the Cairns Tourism Region. The Region’s main attractions - the rainforest and the Great Barrier Reef - are nature-based. The quality of the nature-based attractions was greatly enhanced by the World Heritage listing of the Great Barrier Reef in 1981 and the Wet Tropics rainforest in 1987. Promoters of the regional attractions targeted the adventure travel and eco-tourism markets. With the advent of international tourism to far north Queensland there was a significant development of both domestic and international market niches. The main attractions in the Wet Tropics World Heritage area were Lake Eacham, Lake Barrine, Curtain Fig Tree, Mossman Gorge and North Daintree.
Following the opening of Cairns International Airport in 1984, there was an increase in the number of tourists from various destinations. Between 1985 and 1992 international visitation grew by 25 per cent. and the domestic markets grew for intrastate (9.1 per cent.) and interstate (8.7 per cent.) visitation.
Various tours were available by 1992. River trips as well as rainforest treks (virtually non-existent in 1984) were flourishing by then. Flora and fauna study, wildlife observation (including birdwatching), rafting, cycling, sailing, ballooning, rainforest walks, horse rides and exploratory journeys out of the Cairns region to Cape York were all available. Brochures illustrating a range of such activities were in evidence (Exhibits 17).
Most of the day visitors to the region came from accommodation centres in Cairns and Port Douglas. The predominant movement of day visitors was westwards to Kuranda and the Atherton Tablelands, northwards towards the Daintree and Cape Tribulation area, and to the Great Barrier Reef. A smaller percentage travelled southwards to the Tully, Mission Beach and Innisfail area.
Mrs Kuhn drew on a 1993 Wet Tropics Visitor Use survey to show that, in that year, the total visitation to the area north of the Daintree River - the Daintree/Cape Tribulation conglomerate - was 282,545 people. Mossman Gorge was a popular destination (331,492 people) as were places on the Kuranda Range (374,465 at Henry Ross Lookout) and on the Atherton Tableland ( 312,281 at Lake Barrine, 369,082 at Lake Eacham, and 220,073 at the Curtain Fig Tree). Lower figures were recorded for the more southern routes on the Gillies Highway in the Goldsbrough Valley near Gordonvale and the Heales Lookout. Other southern destinations attracted comparatively lower numbers of visitors. In 1992 more than 600,000 people visited the Great Barrier Reef.
The Wet Tropics Visitor Use Survey results show that some destinations were visited only by independent visitors while others were visited by independent and commercial visitors. The latter category included the Daintree-Cape Tribulation conglomerate (39 per cent. independent and 61 per cent. commercial), Mossman Gorge (72 per cent. and 28 per cent.), Lake Barrine (53 per cent. and 47 per cent.), Lake Eacham (84 per cent. and 16 per cent.) and Curtain Fig (56 per cent. and 44 per cent.).
Apart from the Cairns-Kuranda railway, there was no regional public transport system. Access to natural attractions was by privately owned or hired vehicles and by tour operators’ transportation. The need for transportation became an integral component of day tours in the Cairns region and of trips to overnight accommodation away from Cairns and Port Douglas. Wilderness lodges in the Daintree-Cape Tribulation area, for example, were transferring about 90 per cent. of their guests from Cairns and/or Port Douglas to their accommodation.
Round trips from Cairns and Port Douglas were developed along the main roads to the major attractions in the Wet Tropics World Heritage Area (Lake Eacham, Lake Barrine, Curtain Fig, Mossman Gorge and North Daintree). These routes were used by independent tourists and commercial tours.
The pressure of tourism north of the Daintree River was recognised by the residents, tourist businesses and the planning bodies. By 1992 the adventure travel and eco-tourist activities were generally being provided by commercial tour operators who operated within a permit system in areas that were under public management, such as rainforests in the World Heritage area. The Mossman Gorge, Daintree and Cape Tribulation areas became congested as eco-tourist and adventure travel destinations. In 1993 a moratorium was imposed on the number of permits for commercial tours operating north of the Daintree River. As a consequence, tour operators were looking elsewhere for tourism venture opportunities.
The WTMA anticipated that tourist expansion at Port Douglas would aggravate pressures on areas to the north. It was proposed in 1992 that alternative day trip destinations be provided to help divert use away from the existing management problem areas such as the Daintree-Cape Tribulation. The WTMA Tourism Strategy in that year recommended that the ferry crossing at the Daintree River should remain with its current capacity as a desirable management mechanism to limit growth of tourism north of the Daintree River and as an integral part of the tourism experience. Douglas Shire Council drafted a Development Control Plan for the Daintree area in 1992. A maximum number of beds in the existing hotels, motels and private cabins as well as hostels and caravan and camping amenities was set at the already approved total in 1992 of 1720 beds north of the Daintree River.
Coach tours increasingly operated south of the Daintree, including on Black Mountain Road and the Rex Range. There was a scenic nature-based route from Cairns and Kuranda to Mossman and the Daintree. Other tours to the Atherton Tableland included circular routes from Cairns to Kuranda by rail then on to Curtain Fig Tree, Lake Eacham and Lake Barrine, returning via the Kuranda Range or the Gillies Highway. The more southern Gillies and Palmerston highways were not used as frequently in the circulate routes.
Tourist ventures were operating in the Mowbray Gorge area, and the district provided a range of attractive natural features and nature-based activities as an alternative to those in the more congested area to the north.
Features of the subject land that suit it for eco-tourism use: The topographic and other natural features of the subject land have already been described and their significance to an eco-tourism venture are readily appreciated.
Mr Weigh listed the following positive features of the land:
a large and relatively scarce parcel of freehold land
extent and variety of forest types
diversity of bird life estimated at 169 species
views of the Mowbray Valley
access to Mowbray Falls
relatively accessible from major centres in the region.
There was no dispute about the positive features. Mr Weigh also listed the following negative site features:
access to Mowbray Falls is a steep descent and would restrict many visitors from the journey
no running water on site
limited on-site activities
access to national park would be vital to any eco-tourism development
the national park has no infrastructure of tracks or interpretation.
I am satisfied that some of these negative features are not as significant as Mr Weigh’s summary suggests. The importance of access to Mowbray Falls will be dealt with later. The other features should be considered first.
Contrary to Mr Weigh’s statement, based on a relatively brief visit to the subject land, there was running water on the subject land. As noted earlier, Kauri Creek is a permanent spring fed watercourse that flows (though not always continuously) across the land. The relatively low volume of water in Kauri Creek means that it is not as significant a feature as, say, the Mowbray River. Although it would be possible to dam part of the Creek to create an attractive water feature, Mrs Kuhn suggested that it is probably too beautiful a rainforest stream to dam. There were concept plans to locate accommodation and resort facilities near the Creek, apparently in the area which had been cleared for growing corn, where the regrowth could be selectively cleared.
The range of activities which could have been enjoyed on or near the subject land include flora and fauna study, nature photography, bush walking, climbing, abseiling, swimming, horse riding, mountain bike riding and more passive activities, such as book reading, letter writing or just relaxing uninterrupted in the tranquillity of a forest environment.
Bird watchers could observe birds there and at other sites in the district, such as Mount Lewis where the blue-faced finch is found. Mrs Kuhn highlighted the “morning chorus” which she described as “a symphony of the hundreds of species of birds in the rainforest” (including honey eaters, warblers, wrens, catbirds, riflebirds, kookaburras and bower birds) and which is all the more impressive when the listener is accompanied by an ornithologist. Different species live in different environments, so the morning chorus on and around the subject land is different from, say, that in other types of rainforests or in mangroves. Listening to and being instructed about the bird calls can help new bird watchers to locate shy birds in a closed environment and is an educational tool which most birdwatching eco-lodges offer to birdwatchers. Mr Rector said that there is a “very significant” birdwatching market in the north of Australia, with many people coming from overseas to see the bird life of Australia. Their main point of entry is Cairns. Mr Weigh also acknowledged that there is a market in relation to bird-watchers but, in his experience, a resort operator would not rely on bird-watchers to fill lodges. Other bird watching enterprises in the district, however, have demonstrated both that there is a market for this sort of activity and that the activity is enhanced with the involvement of a specialist guide.
The fact that the final part of road access to the subject land was along an earth and gravel road was characterised as a positive feature of the site. According to Mr Rector, the gradual deterioration of the road surface as one travelled from the main road to the subject land contributes to the presentation of the experience and heightens the sense of anticipation when approaching an eco-tourism destination. Since 1995, however, there has been a requirement that Pinnacle Road be upgraded and sealed to provide access to the retained land and some of that work has been undertaken in recent years. The Council may have imposed similar requirements for the development of the subject land.
Mr Weigh seemed to suggest that the appeal of a resort on the subject land would be limited if the activities were only nature-based, and that it would be necessary to expand significantly the range of options that guests could enjoy to include such things as an interpretive centre, canopy walk, library, and tennis. In fact, claimants had such options in mind. Indicative plans for the development of an enviro-park on the subject land show, among other things, an interpretive centre, a research facility, a gallery, restaurants, a canopy walkway and various types of accommodation (Exhibits 16, 20, 44).
Both Mrs Kuhn and Mr Rector stressed the importance of the educational side of eco-tourism. Mrs Kuhn said that, although the quality of the environment is critical to such a venture, the quality of the interpretation of the environment “is probably one of the biggest attractions”. According to Mr Rector the degree to which the interpretation of the environment is expanded is “a very critical factor in the success of the development itself”. Plans for the construction of interpretive centres on the subject land, and the types of educational programs that could be provided, were described.
The final two negative site features seem to refer to the State Forest rather than National Park land. Mr Weigh gave one comparison, stating that the infrastructure of walking tracks in the Daintree National Park is superior to Mowbray State Forest. The main feature within the State Forest that is relevant to this case is Mowbray Falls, discussed a little later in these reasons. The plans for appropriate tracks on the subject land and a possible boardwalk or other suitable construction on the track to Mowbray Falls would overcome those negative site features.
The subject land and the immediately adjoining land clearly have natural features which make the subject land suitable for development involving both soft and hard forms of eco-tourism. It is clear, however, that the nature, extent, and potential success of any such development would have been influenced greatly by the enthusiasm, energy, experience and expertise of the claimants. They had developed a vision to use the land by retaining the integrity of the natural environment and drew on a growing body of knowledge and experience in Australia and elsewhere.
It was proposed not to connect up with Council infrastructure beyond the boundary of the land. Rather there would be solar and wind power generators. Those and other ecologically sensitive facilities could be an attraction to eco-tourists who are curious about how to create an hospitable living environment without some of the services of a city or town. Mr Weigh seemed to suggest that such features may be attractive to the small market of “hard edge” eco-tourists, but that the mainstream tourists want nature-based activities together with comfortable accommodation. He considered that to be “too rustic in your presentation ... would be very risky”. I did not understand the proposal to have involved facilities of a low standard but rather to have used alternative means of achieving a high standard.
Access to Mowbray Falls: Mowbray Falls are located about 350 metres to the south-east of the south-eastern corner of the original Lot 109 (and Lot 999). They are an attractive natural feature which visitors to a resort on the subject land would have wanted to inspect. To gain the most direct access to the Falls people would have had to enter the adjoining State Forest along a steep path from the subject land. Visitors could cross the Mowbray River at or above the Falls and follow the existing Robbins Track, which meanders through rainforest gullies and eucalyptus forest, to the historic Bump Track, a hiking and horse riding track along which people could travel to Connolly Road or Black Mountain Road. The Robbins Track was constructed in 1985 by Mr Kuhn at the claimants’ expense. The tracks are marked on a Visitor Information sheet on “The ‘Bump’ Walking Track” published by the Queensland Department of Forestry (Exhibit 18).
If the enviro-tourism project on the subject land had gone ahead, and if commercial access to the Falls had been permitted, it is likely that the track would have followed another route which has a gentler gradient and would be more environmentally sensitive. Constructed platforms or elevated boardwalks would have made the approach easier and would have allowed for natural drainage to occur under the walkway.
Three related matters were in issue in these proceedings:
(a)How important would access to Mowbray Falls have been to an eco-tourism venture on the subject land?
(b)Would commercial access from the subject land to Mowbray Falls have been officially permitted?
(c)To what extent would the value of the subject land have been influenced by the availability (or unavailability) of access to Mowbray Falls by patrons of the eco-tourism venture?
How important would access to Mowbray Falls have been to an eco-tourism venture on the subject land? The significance of the Falls to the proposed development of the subject land is apparent from the evidence and was confirmed at an inspection by the parties and the Court.
In her written statement describing the eco-tourism potential of the subject land at the time of the taking, Mrs Kuhn noted that the land “offered a range of access to the Mowbray River and Gorge. It is only a ten minute walk on established tracks through rainforest to the Mowbray River and Big Mowbray Falls.” From one of the sites “a choice of routes to the Big Mowbray Falls can be followed through the riverine gallery forest or along the established tracks” (Exhibit 5).
The significance of the Falls as a marketable feature of an eco-tourism enterprise can be implied from planning material prepared for the claimants. A plan of the proposed development named it the Big Mowbray Falls Eco-tourism Project and the document showing an artist’s impression of the possible structures on the land described the proposed development as Mowbray Falls Enviro-park (Exhibit 44). A letter from one of the bodies who expressed support for the proposed development referred to “a breathtaking 600 ft waterfall on the back property” (Exhibit 43).
In his report acclaiming the eco-tourism potential of the subject land, Mr Rector referred to the property as having “constantly flowing water through the Mowbray River and spectacular falls at Mowbray Falls within walking distance through lush rainforest.” (Exhibit 6 Annexure D). Of course, the Mowbray River does not flow through the subject land, but Mr Rector clearly considered the Falls to be a significant attraction. He thought it would be possible to construct an appropriate track with a more gentle slope than exists at present to the top, and even to the bottom, of the Falls.
Mr Allan considered that access to the Falls is one feature that would have contributed to the viability of a resort on the subject land. Mr Weigh listed access to Mowbray River Falls as one of the positive site features of the subject land. He described the Falls as “a very dramatic and continuous year round waterfall system feeding down to the Mowbray Valley which is a vary attractive delta to the ocean”. He also considered that, because there would be limited on site activities on the subject land, access to the neighbouring land “would be vital to any eco-tourism development”. The attraction of that neighbouring land was not confined to the Falls.
Mr Weigh also listed as one of the negative site features of the subject land the fact that access to the Falls is a steep descent which is “quite demanding for a visit on foot” and which “would restrict many visitors from the journey” (Exhibit 15). Mrs Kuhn, in evidence to the same effect, described the walk to the Mowbray River and Falls as “getting towards the hard end of eco-tourism. You have to work hard to get there.” By comparison, she described a short, enjoyable walk around Red Hill to the pendas as “soft eco-tourism” which is “probably the most that a lot of people want”. In any case, there would not be time for most day visitors who are taking tours to do more than walk to the penda site and experience the canopy walkway and the interpretive centre.
I am satisfied that, although not every visitor to an eco-tourism resort on the subject land would have required access to Mowbray Falls, the Falls would have constituted a very important (though not essential) feature of the eco-tourism experience offered by such a resort.
Would commercial access from the subject land to Mowbray Falls have been officially permitted? The most direct evidence was given by Mr Shane MacLeod, the Tablelands Recreation Officer in the Department of Natural Resources based at Atherton. He had previously been the Visitor Management Officer in that Department, based at Atherton. In the 18 months before the hearing Mr MacLeod was responsible for assessing applications for and issuing all Commercial Activity Permits for all of Queensland north of Townsville. That work involved the assessment and issue of permits to use parts of State Forests for various activities including recreation, club, competitive event and commercial activity permits.
Commercial tourist operators have been given Commercial Activity Permits for conditional access to Mowbray Creek and Falls from the eastern State Forest 42 by way of a road known as the Bump Track. The claimants have had authorised access to the Falls in the past as part of their commercial tour enterprises. That access has been through a valley to the bottom of the Falls. In 1985 they obtained their first permit for commercial tourism operations in the State Forest area of the Mowbray Gorge. Their horses took tourists up the Bump track to the Mowbray Falls on “Saddleback Safaris”. The claimants also started “Tropical Treks”, rainforest treks into the Mowbray Gorge and onto the Mowbray Falls. (Exhibit 5 at 1.4) Among the permits which they have been granted was one for overnight camping in the State Forest as part of a horse riding trip.
The claimants have not sought permits for commercial purposes to gain access from the subject land to the top of the Falls.
Mr MacLeod’s oral and written (Exhibit 13) evidence was that if an application had been made in 1992 for a Commercial Activity Permit to access Mowbray Creek and Mowbray Falls from a non-gazetted access - in particular from part of the subject land which was resumed - “it would almost certainly be refused”. His assessment was based on his understanding of “wider Departmental policy and the Recreation Subprogram at this time”. In December 1992 no provisions were in place relating to private infrastructure (such as walking tracks) being constructed by adjoining land holders or others on State Forest for the purpose of a Commercial Activity Permit. According to Mr MacLeod, a “lot of this policy was unwritten in 1992” and was, in effect, in the heads of public servants. Mr MacLeod identified the two “major contributors” to the decision” to refuse a permit as:
the exclusive use in an area which would have had no gazetted public access to the trail head of the track; and
the existence of suitable access to the site from the Bump Track.
When expanding on those factors, Mr MacLeod said there was no formed track or road from the subject land to the top of the Falls. It was unlikely that a new recreation construction would have been formed because there was gazetted access to the boundary of the State Forest and then public access to the Falls through the Bump Track. (As noted earlier in these reasons, however, access is not obtained by way of the Bump Track alone. It is necessary to follow the Robbins Track to the Falls.) Mr MacLeod stated that the Bump Track has been in use since about 1877, is part of the national heritage trail and has been maintained because of historical value. Although the Department is concerned that erosion and the steepness of the Track poses a management risk, some of that risk has been shifted to private operators using the Track who must carry public liability insurance.
Although access to the Falls can be obtained by way of the Bump Track and then the Robbins Track, such access is over a much longer distance and is physically more difficult than the route (existing or proposed) from the subject land. According to Mr Wake, it would take about 30 minutes to drive from the subject land down the Rex Range to Spring Creek to the start of the Bump Track. It is more difficult to gain access to the Bump Track from the subject land than from the coast road. The tracks to the Falls then come up on the side opposite to the subject land. Alternatively, one could travel approximately 9 or 10 kilometres from the property to access the track from Black Mountain Road. By contrast, visitors from the subject land could visit the top of the Falls in a few minutes and over a distance measured in hundreds of metres rather than kilometres. Mrs Kuhn acknowledged that people may visit the Falls from the tracks below, but she suggested that visitors prefer a forward journey rather than retracing their steps. There may have been some advantage for people coming to the Falls along those tracks to have continued onto the subject land and the interpretive centre before joining transport to their next destination.
In a practical sense, authorised access along a track between the Falls and the subject land would have been an important factor in the operation of a commercial resort, whether tourists went to the Falls from the subject land or went along the Bump Track and Robbins Track and then from the Falls to the subject land.
In addition to the “major contributors” cited earlier Mr MacLeod nominated safety or the steepness of the proposed track (rather than its length) as a factor which would have been taken into account. Use of the track for the purpose of group or commercial activities would have had the potential for increased risk, and possible State liability for injury to persons using the track. He said that if, in 1992, the Department had become aware of any regular use of the track for such activities, action would have been taken under the Forestry Act 1959. Apparently the Department has taken action under that Act against people conducting commercial operations on State Forest without permission.
I note that parts of the Robbins Track, which was constructed in 1985 and lacks the historical significance of the Bump Track, were said to be steeper than the Bump Track. The Robbins Track is not sustainable and, in places, may not be safe. In key respects it would not seem to comply with the purpose and goal of the strategic plan adopted a decade or so after its construction.
Assuming that the factors mentioned by Mr MacLeod would have been relevant considerations, how would an application in 1992 for a Commercial Activity Permit for access from the subject land to the Falls have been processed? Apparently it would have been referred to the Recreation Advisory Service Branch of the Department in Brisbane. In concluding that such an application would have been refused by the relevant officer, Mr MacLeod relied on a decision made in 1994 by the same officer against approval of an application for the construction of a walking track from a freehold property in south-east Queensland to an adjoining State Forest, and on the recreation policy of 1993.
A critical matter to be borne in mind is that the restrictions about which Mr MacLeod spoke apply to commercial activities but would not apply to a private individual, or individuals, wishing to walk from the subject land to the Mowbray River and along to the Falls. A distinction was drawn between private individuals who were not connected with a commercial tour and those who were. The line became blurred, however, when deciding whether the restriction applied to all people who were accommodated on the subject land. Mr MacLeod understood that if people were not actively directed to the Falls (say by the provision of a map) that would not be a commercial operation. People would be exercising their individual right to walk in the State Forest. If, however, the operators of the accommodation were directing people along a constructed path, that would form a commercial operation.
There was no absolute prohibition on commercial permits of the type which would have been required. Mr MacLeod seemed concerned that a track across the State Forest from the boundary of the subject land to the Falls might have been considered to be for the exclusive use of the land owners and their customers. He thought, however, that if such a track had met a gazetted road the proposal “would be looked on very favourably”. He also agreed that, if such a track were to be approved, the approval could be subject to conditions that it could be constructed from wood in parts to avoid erosion. The claimants would not have contested the construction of an appropriate boardwalk along a gentler gradient than the present track.
Mr MacLeod conceded that a decision maker would have sought input from the Wet Tropics Management Authority, but it was unclear what the Authority’s policy was in 1992 or what its attitude would have been to such an application.
It is apparent from Mr MacLeod’s evidence that, at the date of resumption, there was no written Departmental policy which might have guided the relevant officer or prospective purchaser. It is also highly likely that the Department would have initially refused to grant a Commercial Activity Permit for the purpose contemplated. It cannot be said with certainty that further applications and discussions (and possibly applications under s 20 of the Judicial Review Act 1991) would have led to the grant of a permit or that the Department would have permitted, or been involved in, the re-routing, upgrading and even construction of a suitable pathway from the subject land to the Falls.
A policy has since been developed which requires all infrastructure constructed on State Forests for the purpose of a Commercial Activity to be built or constructed to departmental standards. The applicant would be required to fund the project either directly or indirectly through advance payment of passenger fees. At all times the Department would own the infrastructure, which would be managed so at to give an equal opportunity to all visitors to the State Forest. Any private infrastructure arrangements would need to consider the cost of maintenance, the remoteness of the area from the closest work centre, and the likelihood of injury (with possible State liability) for persons using the proposed facility. Mr MacLeod outlined the policy and documents dated December 1993, June 1994, August 1995, and June 1996, giving more details of policy development, were tendered (Exhibits 13, 42). The broadly stated Purpose of the Strategic Plan 1995-2000 is “To provide the community with sustainable, safe and environmentally responsible recreational opportunities, attuned to community needs” and the Goal is “To provide nature based opportunities within State Forests and water storages which are safe, sustainable and attuned to community needs”.
Despite the development of such policies, Mr MacLeod said that even if an application had been made in late 1996 it almost certainly would have been refused.
The claimants were “astounded” at Mr MacLeod’s statement that a permit would almost certainly have been refused. They have been granted permits in the past for other activities in the State Forest. Mrs Kuhn said that in none of the claimants’ discussions with relevant Ministers or departmental officers had anyone mentioned the need for gazetted access, nor had the various publications issued by the Forestry Department mentioned the need for a gazetted access to protected areas. Indeed Mrs Kuhn said she had never seen a policy which would have precluded access along non-gazetted routes. In light of Mr MacLeod’s evidence that is not surprising.
It was accepted that similar access arrangements have been made on National Parks elsewhere in the State and that different factors will influence decisions in different places. One cannot conclude that such access would necessarily have been granted in the subject case.
It is clear that the valuers assumed the authorised access would be obtained. Mr Wake noted that, before and since resumption, access to the Falls was controlled by the Department of Forestry. He stated that an “annual permit is all that would have been needed for guests to access the Falls” (Exhibit 6). In his opinion, the claimants had “virtually unimpeded access” to the Falls before the resumption, and the fact that for some years permits had been issued to tour operators (including the claimants) in the immediate district of the subject land suggested that any permits necessary for access to the Falls would have been granted. A properly constructed zigzag track along a gentler slope than the present trail would have been more environmentally appropriate and Mr Wake thought that such a zigzag track would not be a problem so far as the Department was concerned. Consequently a prudent purchaser of the subject land at the date of resumption would not have considered as a detriment the risk that a permit would be refused.
Mr Allan made his valuation on the basis that the purchaser of the land would gain approval for guests at the resort to have legal access to the Falls.
Mr Needham argued that if experienced experts in their fields (particularly those called by the Crown) had failed to consider the possibility that direct legal access from the subject land to the Falls would have been difficult or even impossible to obtain, it could not have been a relevant factor to the valuation of the subject land. I am satisfied, however, that Mr MacLeod’s evidence was relevant and persuasive. The oversight by Mr Allan and Mr Weigh does not rule out the prospect that a prudent purchaser of the subject land would have made suitable inquiries.
The evidence about the existing track shows that, for environmental and safety reasons, a person who wanted to develop the subject land for eco-tourism purposes would have sought to have the track re-routed and upgraded. That work may have involved the construction of platforms or an elevated boardwalk in places. Such work could not have been done on the State Forest without the involvement or consent of the relevant Department. Inquiries in relation to that work could have been made at the same time as, or may have given rise to, inquiries about the need for Commercial Activity Permits.
I am satisfied that a properly informed prudent purchaser of the subject land at the date of resumption would not have assumed that a Commercial Activity Permit would have been granted along the existing route, or some other route, between the Falls and the subject land. Given the importance of the Falls to an eco-tourism development on the subject land, however, such a purchaser would have probably pursued all reasonable avenues to obtain permission and an appropriate proposal may eventually have attracted the Department’s support.
To what extent would the value of the subject land have been influenced by the availability (or unavailability) of access to Mowbray Falls by patrons of the eco-tourism venture? As noted earlier, the valuer called by each party assumed that access to the Falls would have been permitted and valued the subject land accordingly.
Mr Allan considered that the Falls are one feature that would have contributed to the viability of a resort on the subject land. If access was not available, or would have been difficult to obtain, then the subject land would have been worth less.
I am satisfied that, because permitted access to the Falls was a very important (though not essential) feature of the eco-tourism experience which would have been offered by an eco-tourism venture on the subject land, the risk that access would not be permitted or that permission would have been difficult and possibly expensive to obtain would have influenced the price which an informed prudent purchaser would have paid for the subject land.
Conclusion: The subject land is to be valued having regard to its agreed, but unrealised, potential for eco-tourism purposes:
The claimants, and others assessing the potential of the subject land for eco-tourism purposes, considered that access to Mowbray Falls was an important feature in the development of the land. Although not all visitors to the eco-tourism resort (whether day trippers or overnight guests) would have taken the opportunity to visit the Falls, the availability of legally permitted access by way of an appropriately constructed trail from the subject land was a significant element in the overall planning for a venture on the subject land. Given the attraction of the Falls, their proximity to the subject land and the absence of a comparable river and falls on the subject land, the need for legal access to the Falls by a direct route from the subject land would have been a factor that a prudent person would have taken into account when deciding whether to purchase the land for eco-tourism purposes and the price which such a purchaser would pay. The eco-tourism potential of the land would not have been enhanced if the resort operator could only provide guests with access to the Falls by vehicle to the Bump Track and then a walk for at least part of the distance along the Bump Track and the Robbins Track. A purchaser would have wanted to be assured that the relevant permit would be granted (and that successive permits would be issued) and, less significantly, would have wanted to know the fee payable for the permit.
Lot 998 $370,000.00 April 1993
Lot 999 $310,000.00 April 1993
$139,950.97 June 1993
Aggregation $416,049.03 October 1995.
The rate of interest adopted by the Land Court in relation to awards compensation for amounts payable in 1992 is 9.0 per cent.
I will hear submissions from the representatives of each party in relation to the appropriate form of order to reflect the amount of compensation payable having regard to the amounts paid to the claimants to date and the applicable rate of interest.
GJ NEATE
MEMBER
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