Lim v Moreton Bay Regional Council - [2019] QLC 2

LAND COURT OF QUEENSLAND

CITATION: Lim v Moreton Bay Regional Council [2019] QLC 2

PARTIES: Edwin Villa Abrille Lim
(applicant)

v

Moreton Bay Regional Council
(respondent)

FILE NO: AQL177-17

DIVISION: General Division

PROCEEDING: Claim for compensation payable pursuant to the Acquisition of Land Act 1967 as a consequence of the taking of land

DELIVERED ON: 25 January 2019

DELIVERED AT: Brisbane

HEARD ON: 11, 12 & 13 April 2018
Submissions closed 23 May 2018

HEARD AT: Brisbane

MEMBER: PA Smith

ORDERS:
1.   Compensation is determined in the amount of Two Hundred and Fifty Five Thousand, Six Hundred and Seventy Dollars ($255,670).

2.   In addition, interest is also awarded on the amount determined by the Court, the amount of such interest to be agreed as between the applicant and the respondent or, failing agreement, to be determined by the Court. In the event that the quantum of interest is not agreed between the parties by 15 February 2019, the parties are each to file and serve a statement and submissions detailing their assessment, with full calculations, as to what amount the proper award of interest should be. Any such statements and submissions are to be filed and served by no later than 4:00pm on 1 March 2019.

3.   Any party seeking costs is to file and serve their submissions as to costs by 4:00pm, 15 February 2019. Any submissions in response are to be filed and served by 4:00pm on 22 February 2019 and any submissions in reply are to be filed and served by 4:00pm on 1 March 2019.

CATCHWORDS:
REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – PROCEEDINGS FOR COMPENSATION – QUEENSLAND – JURISDICTION OF THE LAND COURT – where value in the Acquisition of Land Act 1967 is market value – where irrelevant considerations had to be removed from value – where relevant considerations were not properly taken into account – whether disturbance is a relevant consideration – where only the respondent called valuation expert evidence – where any confidential statements arising out of mediation put into evidence had to be disregarded – where party inappropriately used facts in their submissions which were not in evidence at the hearing

REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – COMPENSATION – ASSESSMENT – PART OF LAND ACQUIRED – resumption of only part of land – where land acquired for flood mitigation purposes – where Council had a scheme of resumption in place – where the land at the time of resumption was zoned rural – where land subject to flooding – where comparable sales relied upon to determine value – where town planning evidence is a relevant consideration – where the highest and best use and development potential of the resumed land are in dispute – where applicant sought to rely upon sales of properties to the resuming authority – where respondent’s valuer valued resuming authority’s purchases – whether it is appropriate to have regard to such sales – principles considered

REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – COMPENSATION…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2019] QLC 2
Decision Date: 25 January 2019

CaseChat Overview and Summary

The parties involved in this case are Lim and the Moreton Bay Regional Council. The dispute centres on the compulsory acquisition of land by the Council for flood mitigation purposes, with Lim seeking compensation for the resumption of part of his land. The matter was heard in the Queensland Land Court. The primary legal issue was whether the court had correctly assessed the compensation due to Lim for the land that was resumed, given the relevant considerations and exclusions that applied. Another issue was whether the evidence provided by the parties, particularly expert evidence, was admissible and properly considered by the court.

The court examined whether the relevant considerations were properly taken into account when determining the compensation. It found that the expert evidence provided by the Council did not adequately consider certain factors such as the highest and best use of the land, the development potential, and the impact of the land being subject to flooding. The court also considered the admissibility of expert evidence and whether the expert was truly independent, given their prior employment relationship with the Council. The court concluded that while the Council's expert evidence was flawed, it did not warrant a complete disregard of their assessment. Instead, the court determined that the compensation should be based on a market value approach, adjusted for relevant considerations.

The court awarded Lim compensation of Two Hundred and Fifty Five Thousand, Six Hundred and Seventy Dollars ($255,670), with interest on this amount to be determined by agreement or, if necessary, by the court. The court also set out a timeline for the parties to file and serve their submissions regarding interest and costs. This decision highlights the importance of properly considering relevant factors in determining compensation for land acquisition and the admissibility of expert evidence in such proceedings.

Orders

Orders of the court

1. Compensation is determined in the amount of Two Hundred and Fifty Five Thousand, Six Hundred and Seventy Dollars ($255,670).

2. In addition, interest is also awarded on the amount determined by the Court, the amount of such interest to be agreed as between the applicant and the respondent or, failing agreement, to be determined by the Court. In the event that the quantum of interest is not agreed between the parties by 15 February 2019, the parties are each to file and serve a statement and submissions detailing their assessment, with full calculations, as to what amount the proper award of interest should be. Any such statements and submissions are to be filed and served by no later than 4:00pm on 1 March 2019.

3. Any party seeking costs is to file and serve their submissions as to costs by 4:00pm, 15 February 2019. Any submissions in response are to be filed and served by 4:00pm on 22 February 2019 and any submissions in reply are to be filed and served by 4:00pm on 1 March 2019.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Lim v Moreton Bay Regional Council [2019] QLC 2
PARTIES:	Edwin Villa Abrille Lim (applicant)
v
Moreton Bay Regional Council (respondent)
FILE NO:	AQL177-17
DIVISION:	General Division
PROCEEDING:	Claim for compensation payable pursuant to the Acquisition of Land Act 1967 as a consequence of the taking of land
DELIVERED ON:	25 January 2019
DELIVERED AT:	Brisbane
HEARD ON:	11, 12 & 13 April 2018 Submissions closed 23 May 2018
HEARD AT:	Brisbane
MEMBER:	PA Smith
ORDERS:	1. Compensation is determined in the amount of Two Hundred and Fifty Five Thousand, Six Hundred and Seventy Dollars ($255,670). 2. In addition, interest is also awarded on the amount determined by the Court, the amount of such interest to be agreed as between the applicant and the respondent or, failing agreement, to be determined by the Court. In the event that the quantum of interest is not agreed between the parties by 15 February 2019, the parties are each to file and serve a statement and submissions detailing their assessment, with full calculations, as to what amount the proper award of interest should be. Any such statements and submissions are to be filed and served by no later than 4:00pm on 1 March 2019. 3. Any party seeking costs is to file and serve their submissions as to costs by 4:00pm, 15 February 2019. Any submissions in response are to be filed and served by 4:00pm on 22 February 2019 and any submissions in reply are to be filed and served by 4:00pm on 1 March 2019.
CATCHWORDS:	REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – PROCEEDINGS FOR COMPENSATION – QUEENSLAND – JURISDICTION OF THE LAND COURT – where value in the Acquisition of Land Act 1967 is market value – where irrelevant considerations had to be removed from value – where relevant considerations were not properly taken into account – whether disturbance is a relevant consideration – where only the respondent called valuation expert evidence – where any confidential statements arising out of mediation put into evidence had to be disregarded – where party inappropriately used facts in their submissions which were not in evidence at the hearing REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – COMPENSATION – ASSESSMENT – PART OF LAND ACQUIRED – resumption of only part of land – where land acquired for flood mitigation purposes – where Council had a scheme of resumption in place – where the land at the time of resumption was zoned rural – where land subject to flooding – where comparable sales relied upon to determine value – where town planning evidence is a relevant consideration – where the highest and best use and development potential of the resumed land are in dispute – where applicant sought to rely upon sales of properties to the resuming authority – where respondent’s valuer valued resuming authority’s purchases – whether it is appropriate to have regard to such sales – principles considered REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – COMPENSATION…