Mahoney & Ors v Chief Executive, Department of Transport and Main Roads (No. 3)
[2013] QLC 11
•20 March 2013
LAND COURT OF QUEENSLAND
CITATION:Mahoney & Ors v Chief Executive, Department of Transport and Main Roads (No. 3) [2013] QLC 11
PARTIES:John Mahoney, Kathryn Mahoney and Austin Mahoney
(applicants)
v.
Chief Executive, Department of Transport and Main Roads
(respondent)
FILE NO:AQL289-11
DIVISION:General Division
PROCEEDING: Application to determine compensation under the Acquisition of Land Act 1967
DELIVERED ON: 20 March 2013
DELIVERED AT: Brisbane
HEARD ON: 10, 11 and 12 December 2012
Submissions received and decision reserved 27 February 2013
HEARD AT:Brisbane
MEMBER:Mr WA Isdale
ORDER/S:1. Compensation is determined in the amount of One Million, Seven Hundred and Seven Thousand, Five Hundred Dollars ($1,707,500).
2. Interest is payable to the applicants at the rates applicable for the relevant years, that is:
20065.5%
20076%
20085.75%
20095%
20105.5%
20115%
20123.5%
3. Interest is payable on and from the date of resumption to and including the day immediately preceding the date on which payment of the sum due is paid.
4. Any application for costs is to be filed and served within 14 business days of the publication of these reasons and any reply is to be filed and served within 14 business days of the application.
CATCHWORDS: Acquisition of land ― whether change of zoning was part of a scheme to resume the land for a public purpose
Acquisition of Land Act 1967, ss 12(5), 20(2)
Transport Infrastructure Act 1994
Bowers and Crane v Pine Rivers Shire Council (2007) QLCR 28
Haig v Minister (1994) 85 LGERA 143
Housing Commission of New South Wales v San Sebastian Pty Ltd (1978) 140 CLR 196
Ipswich City Council v Wilson; Ipswich City Council v Wilson & Downey [2011] QLAC 0006
Nelungaloo Pty Ltd v The Commonwealth (1948) 75 CLR 495
Mount Lawley Pty Ltd v Western Australian Planning Commission [2007] WASCA 226
Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565
Redland Shire Council v Edgarange Pty Ltd (2008) 29 QLCR 91
Sydney Harbour Foreshore Authority v Walker Corporation Pty Ltd [2005] NSWCA 251; (2005) 63 NSWLR 407
The Crown v Murphy (1990) 64 ALJR 593
Vyricherla Narayana Gajapatiraju v. Revenue Division Officer, Vizagapatam [(1939) AC 302 at 318].
Wilson v Liverpool Corporation [1971] 1 WLR 302
APPEARANCES: Mr P Favell of Counsel, for the applicants
Mr T Trotter of Counsel, instructed by Clayton Utz, for the respondent
Background
In 1982 the applicants purchased land located at 16-22 Ipswich-Boonah Road, Yamanto. This is at the intersection of that road with the Cunningham Highway. At that time it was zoned Future Urban under the Moreton Shire Planning Scheme. In February 1999 it was rezoned to Rural under the Ipswich City Council Planning Scheme which was then applicable to it.
On 24 March 2006 over half of the land was resumed by the respondent pursuant to the Acquisition of Land Act 1967 (the Act). In accordance with the Act the applicants became entitled to compensation for their loss. The land was taken for future transport purposes, more specifically for the South-West Transport Corridor (SWTC).
The parties have been unable to reach agreement on the amount of compensation due to the applicants and have brought that issue to this Court for determination.
Some agreement
Although agreement on the amount of compensation has not been reached, the parties have been able to agree that the value of the land taken was either $275,000 if it is to be valued as zoned rural or $1,707,500 if it should be valued as if it was zoned for future urban purposes and had the development potential associated with that.
The Court’s task
The Court must ascertain the true value of what the applicants lost. That task has been greatly assisted by the agreement that has been reached. What remains for decision will result in one or other of the two figures agreed on being, in the joint view of the parties, the correct value of the loss. It will not be necessary for the Court to consider evidence of valuation.
Although the land was, as a matter of fact, zoned rural when it was taken, the applicants point to a well-established practice of courts exercising this jurisdiction whereby any restriction placed on land use as a step in the process of resumption should not be allowed to reduce the value of the property taken. The true value of the land is what must be found.
The Act provides that, upon acquisition of the land for a public purpose, the estate or interest of the applicants shall be converted into a right to claim compensation under the Act.[1] Section 20(2) provides that:
“(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.”
[1] Acquisition of Land Act 1967, s.12(5).
The Court must find the monetary point at which prudent parties would agree to sell the land. This will include deciding how the prudent buyer and seller would assess the land’s potential for development.[2] That will vary greatly depending on whether the land should be considered as Rural zoned land, as it actually was at the time of resumption, or as Future Urban zoned land, as it formerly was before being rezoned into a category where, lacking the potential for urban development, it would be less valuable. As stated above the exact figures for each scenario have already been agreed by the parties.
[2] Bowers and Crane v Pine Rivers Shire Council (2007) 28 QLCR 196 at [18].
The issue
The applicants, in the written submissions made on their behalf (at page 2), summarised the dispute in this way:
“1. (f) … restrictions on land use made as a step in the process of resumption should be ignored in assessing compensation. The parties do not dispute that the central issue is whether the San Sebastian Principle applies to the facts of the matter.”[3]
[3] Housing Commission of NSW v San Sebastian Pty Ltd (1978) 140 CLR 196.
The respondent’s written submissions (at page 3) cast the question this way:
“5. For the purposes of these proceedings, the one issue to be determined is whether:
‘That in order to protect the Subject Land in furtherance of the purpose to resume the Subject Land for the construction of the South West Transport Corridor, the land was rezoned as Rural in 1999’
6. The applicants appear to contend as follows:
(1)when the applicants purchased the Land it was zoned as Future Urban;
(2) a change in the zoning of the Land occurred when the 1999 Ipswich City Council Planning Scheme came into force on 18 February 1999;
(3) the Ipswich City Council’s (‘Council’) change to the zoning of the Land in 1999 was a step in the process to resume the Land in 2006 for the purposes of the SWTC;
(4) as a consequence, the principle enunciated in Housing Commission of NSW v San Sebastian Pty Ltd (1978) 140 CLR 196 (‘San Sebastian’) applies, and the change in the zoning or designation of the Land should be ignored for the purposes of assessing compensation.”
Although differently expressed, the parties do agree on what the question to be decided is, whether the principle applies in the facts of the present case. The onus of proof is on the applicants.
Stating the principle
The “principle” bears the name of authorities associated with it[4] and is variously described as a “principle”[5] or an interpretation applied by courts of expressions in legislation which refer to the value of land compulsorily acquired.[6] It was expressed by Kirby P in the following way:[7]
“According to the principle, which is one devised by the judges, in valuing land for resumption purposes, any increase in the land’s value which is entirely due to the scheme underlying the acquisition is to be disregarded. The converse of the principle is also accepted. Any diminution in the value of land which is entirely due to the resumption scheme, or to any blight caused by a step in the resumption process, is to be disregarded in determining the value of the land: see Housing Commission of NSW v San Sebastian Pty Ltd (1978) 140 CLR 196 at 214; 37 LGRA 214 at 228. Thus, where it is found that there is a direct causal connection between a restriction on land use imposed by planning and land use legislation and the proposed establishment of the public works for which the land might be resumed, the extent of such restriction on the value of the land must be ignored. Behind this principle lies a search for fair valuation and an insistence upon just procedures. It if were not upheld in the determination of the value of resumed land, it would be possible for a resuming authority to use its powers and influence, in respect of such matters as zoning, to diminish the value of the land to be resumed, to its own advantage and to the disadvantage of the owner at valuation.”
As the majority in the Land Appeal Court noted,[8] quoting the High Court in The Crown v Murphy:[9]
“One purpose of this principle is to ensure that a resuming authority does not employ planning restrictions to destroy the development potential of the land and then assess compensation for its resumption on the basis that the destroyed potential had never existed.”
The majority in the Land Appeal Court went on to refer to “the much-quoted Statement of Dixon J in Nelungaloo Pty Ltd v The Commonwealth[10] as governing the approach to s.20(2)”[11] of the Act:
“Compensation prima facie means recompense for loss, and when an owner is to receive compensation for being deprived of real or personal property his pecuniary loss must be ascertained by determining the value to him of the property taken from him. As the object is to find the money equivalent for the loss or, in other words, the pecuniary value to the owner contained in the asset, it cannot be less than the money value into which he might have converted his property had the law not deprived him of it. You do not give him any enhanced value that may attach to his property because it has been compulsorily acquired by the governmental authority for its purposes (Vyricherla Narayana Gajapatiraju v. Revenue Division Officer, Vizagapatam [(1939) AC 302 at 318]). Equally you exclude any diminution of value arising from the same cause. The hypothesis upon which the inquiry into value must proceed is that the owner had not been deprived by the exercise of compulsory powers of his ownership and of his consequent rights of disposition existing under the general law at the time of acquisition.”
(emphasis added)[4] Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565 and Housing Commission of NSW v San Sebastian Pty Ltd (1978) 140 CLR 196.
[5] For example by Kirby P in Haig v Minister (1994) 85 LGERA 143 at 149-150.
[6] Ipswich City Council v Wilson; Ipswich City Council v Wilson & Downey [2011] QLAC 0006 at [45].
[7] Haig v Minister (1994) 85 LGERA 143, 149-150.
[8] Redland Shire Council v Edgarange Pty Ltd (2008) 29 QLCR 91 at [40].
[9] [1990] 64 ALJR 593, 595.
[10] (1948) 75 CLR 495 at 571-572.
[11] Redland Shire Council v Edgarange Pty Ltd [2008] 29 QLCR 91 at [41].
The underlying scheme
It is necessary to identify what is “the scheme underlying the acquisition”,[12] to use the words of Kirby P, or as Dixon J said “the same cause”.[13] The majority of the Land Appeal Court in Redland Shire Council v Edgarange Pty Ltd[14] illustrated this by reference to Lord Widgery’s judgment in Wilson v Liverpool Corporation[15] where his Lordship said:
“Whenever land is to be compulsorily acquired, this must be in consequence of some scheme or undertaking or project. Unless there is some scheme or undertaking or project, compulsory powers of acquisition will not arise at all, and it would, I think, be a great mistake if we tended to focus our attention on the word ‘scheme’ as though it had some magic of its own. It is merely synonymous with the other words to which I have referred, and the purpose of the so-called Pointe Gourde rule is to prevent the acquisition of the land being at a price that is inflated by the very project or scheme which gives rise to the acquisition.”
[12] Per Kirby P in Haig v Minister (1994) 85 LGERA 143, 149-150.
[13] Nelungaloo Pty Ltd v The Commonwealth (1948) 75 CLR 495 at 571-572.
[14] (2008) 29 QLCR 91 at [36].
[15] [1971] 1 WLR 302 at 310.
The land was stated to be acquired for future transport purposes for the South-West Transport Corridor.[16] The question here is identical to that identified by the Land Appeal Court in Bowers and Crane v Pine Rivers Shire Council[17] where the Court said:[18]
“The first issue for decision was the application of the principle established in Housing Commission of New South Wales v San Sebastian (1978) 140 CLR 196 and developed in The Crown v Murphy [1990] 64 ALJR 593, namely, that restrictions on land use as a consequence of a resumption of that land may not be employed to destroy the development potential of the land for the purpose of assessing compensation. It is the corollary of the Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565 principle that a project or scheme which gives rise to a resumption cannot be used to inflate the value of the land.
The Land Appeal Court added[19] that:
“The effect of San Sebastian was refined in The Crown v Murphy (1990) 64 ALJR 593 at 595
‘The principle applies in cases where there is a direct relationship between the planning restriction and the scheme of which resumption is a feature and extends to cases where there is merely an indirect relationship, provided that the planning restriction can properly be regarded as a step in the process of resumption.”
[16] Queensland Government Gazette, No. 69 24 March 2006 p.1119, Exhibit 14B p.325 and following.
[17] [2007] 28 QLCR 196.
[18] [2007] 28 QLCR 196 at [3].
[19] [2007] 28 QLCR 196 at [22].
In Mount Lawley Pty Ltd v Western Australian Planning Commission[20] the Court of Appeal of Western Australia considered an Act the details of which are not presently relevant. Noting that whether the effect on value is attributable to “the Scheme” can be a difficult question to answer[21] the Court turned to an example given by Jacobs J, with whom the other Justices agreed in the High Court’s decision in Housing Commission of New South Wales v San Sebastian Pty Ltd.[22] Jacobs J said:
“Assume an area of land on the outskirts of existing settlement, and assume a planning authority concerned to designate land uses in a planning scheme. The land is designated open space. Thereafter it is resumed for the purpose of a public reserve. The fact that the land was zoned as open space may have depreciated its value. Does the resuming authority pay compensation at the depreciated value of open space or at some other value? The question cannot be correctly answered without knowing whether there was any connexion between the zoning as open space and the subsequent resumption. If the zoning was done with the intent or in anticipation that the land should be resumed for a purpose such as a public reserve or if the zoning was proposed or dictated by the resuming authority then s 124 requires that the zoning be ignored. It is only a step in the process of subsequent resumption. But in other circumstances the resumption may be unconnected with the act of zoning. It may be that the resuming authority selects the land for resumption as a public reserve because it is zoned open space; if it does so it is doing no more than ensuring that it, as well as others, conforms to the planning scheme. In those circumstances there is no relevant relationship between the zoning and the public purpose. No public purpose, existing or anticipated, intended, or urged by the zoning authority, leads to the zoning; rather, the zoning leads to the public purpose and consequent resumption.”
The Court of Appeal of Western Australia then said:[23]
“The question of what is a ‘step in the process’ in this kind of context has since been discussed in a number of cases. Relatively recently, in Sydney Harbour Foreshore Authority v Walker Corporation Pty Ltd[2005] NSWCA 251; (2005) 63 NSWLR 407 [85] (Walker No 1) Basten JA (with whom Beazley JA and Stein AJA agreed), said that the ‘lesson of … San Sebastian … is that no narrow view should be taken of steps which may affect the value of land’.”
[20] [2007] WASCA 226.
[21] [2007] WASCA 226 at [17].
[22] (1978) 140 CLR 196 at 206-207 and quoted in Mount Lawley at 18.
[23] [2007] WASCA 226 at [20].
As the Land Appeal Court said in Bowers and Crane v Pine Rivers Shire Council:[24]
“To ascertain if there was a ‘direct relationship’ or, even, an indirect relationship indicative of a step in a single scheme of resumption of the subject land for rubbish depot, and, ultimately recreation purposes, required an examination and analysis of the planning documents of the respondent. This the learned Member did although he noted at para 30 that despite lengthy testimony and volumes of documents ‘very little evidence was specifically directed at identifying what the relevant scheme was and when it commenced’. The burden lay with the appellants … ”
As Basten JA, with whom Beazley JA and Stein A-JA agreed, said in Sydney Harbour Foreshore Authority v Walker Corporation Pty Ltd[25] “it is necessary to distinguish between conduct which constitutes a proper exercise of planning powers irrespective of the ultimate resumption and a use of planning powers in pursuit of a proposed resumption”.[26] The result was the same in Bowers and Crane v Pine Rivers Shire Council[27] where the Land Appeal Court noted that:[28]
“A general reference to rubbish tips and their future development for recreational purposes is insufficient to sustain any relationship with the scheme of resumption involving the subject land so as to constitute a step in the process. The learned Member was correct to find that there was no underlying scheme to resume the subject land for rubbish depot purposes in 1978.”
[24] (2007) 28 QLCR 196 at [23].
[25] [2005] NSWCA 251; (2005) 63 NSWLR 407 at [85].
[26] Quoted in Mount Lawley Pty Ltd v Western Australian Planning Commission [2007] WASCA 226 at [20].
[27] (2007) 28 QLCR 196.
[28] Ibid [37].
The evidence
Ms Kathryn Mary Mahoney, one of the applicants, gave evidence. Ms Mahoney is a solicitor. She prepared a volume of papers which became Exhibit 6. It contains all the material upon which the applicants rely.[29] At page 62 of Exhibit 6 is the Order in Council authorising the commencement, on 19 February 1999 of the Ipswich City Council (ICC) planning scheme under which the applicants’ land was down-zoned. This occurred well before the acquisition of the land on 24 March 2006. Page 77 of Exhibit 6 contains page 97 of the Ipswich Southern Corridor Plan which is dated December 2001. It refers to possible extension of the Transport Corridor with investigation of options including linking to the Warrego/Cunningham Highways. The last paragraph on the page is to the effect that the “precise location, nature and function of this transport corridor” was not then known. Pages 106 and 107 contained a letter dated 27 November 2000 from Mr Eddie Peters the Acting District Director (Metropolitan) of the Main Roads Department to the Department of Communication, Information, Local Government, Planning and Sport to the effect that it was premature to show the route for this corridor in a draft plan as there were “numerous issues to be resolved and numerous routes are available”.
[29] Transcript (T) Day 1, page 11 line (L) 5.
I note at this point that there was no evidence called for the respondent by way of the actual reasons for the down-zoning of the land. No file has been found to exist explaining the reasons for the change. It was simply done along with all the changes in the new planning scheme which commenced in 1999. No notice was specifically given to the applicants of how the scheme would adversely affect them. It was simply advertised and displayed to the public generally and in a way that was more than compliant with the then-existing legal requirements. The applicants, according to the evidence of Ms Mahoney, did not know about the public consultation prior to the 1999 planning scheme and did not make a submission about it.[30]
[30] T 1-54 L38-42.
The respondent points to factors from which, it says, the reasons for the down-zoning can be inferred. This is demonstrated by the letter dated 21 September 2006 to Ms Mahoney from Mr John Adams, Planning Manager of the Ipswich City Council. Relevantly, the letter states:[31]
“It would appear that the Rural designation was based around the fact that the land was:
(a) subject to overhead aircraft noise (ANEF contours) from the operations of the Amberley Air Base which rendered it unsuitable for urban residential development; and
(b) difficult to service with urban infrastructure owing to its topography and location to the south of the Cunningham Highway.”
(emphasis added) (ANEF is Australian Noise Exposure Forecast)
I note that the main infrastructure concern appears to have been sewerage as the location of the land in two creek catchments would impede use of the more economical gravity-feed system design and a pumping station may have been required. It will not be necessary to explore this aspect as although it was the subject of evidence this Court ought not approach the case by in effect finding that some possible reasons would be good reasons and then imputing them to the decision that was made. Mr Adams’ letter does not purport to give reasons for the decision to down-zone the land, he gives his opinion of what the reasons were. No evidence of the actual reasons was given.
[31] Exhibit 6 pages 82-83.
In cross-examination, Ms Mahoney was taken to Exhibit 9, the statement of Mr Ronald Samuel Michel, Regional Director (Metropolitan), Department of Transport and Main Roads. He followed Mr Peters as the holder of this position. Mr Michel stated that alignment of the SWTC “had not yet been determined as late as November 2003”.[32] His statement includes maps extracted from the Integrated Regional Transport Plan that, while imprecise, do not appear to show the applicants’ land affected by the proposed SWTC. He states that protection of a future corridor is “usually”[33] undertaken by identifying it as a future State controlled road under the Transport Infrastructure Act 1994. The local authority is notified in writing and the notice is published in the Gazette.[34] Mr Michel stated that the Department of Transport and Main Roads does not require local governments to down-zone land to accommodate transport projects and that there is “no implied understanding that local governments will down-zone land to accommodate transport projects”.[35]
[32] Exhibit 9 paragraph 6.
[33] Exh. 9 para 74.
[34] Ibid.
[35] Exh. 9 para 79.
Attachment RSM-16 to Exhibit 9 is a copy of a facsimile dated 6 September 2000 from Mr Peter Borrows, Works Manager of the ICC to Mr Eddie Peters at the Main Roads Department. Mr Borrows suggests that the proposed study area for the SWTC “does not appear to extend far enough south”[36] and includes a map of his suggested amendment which adds land well to the south of the applicants’ land.[37] This supports a conclusion that the location of the SWTC had not been decided and is pointed to by the respondent as showing that there would be no reason to down-zone the applicants’ land as no need to resume it was apparent at a time that was after it was down-zoned. The respondent also points to an area facing the Cunningham Highway that was designated as a gravel reserve. It is located on the northern boundary of the land that was resumed from the applicants and was also in part resumed.[38] The Department of Natural Resources and Mines wrote to the Main Roads Department on 18 September 2001 stating that the ICC wished to relinquish trusteeship of the reserve and asking if the Main Roads Department had “some interest in the area”.[39] A map of the gravel reserve appears in Exhibit 9 at RSM-22 p.127. On 26 October 2001, the Acting District Director (Metropolitan), Department of Main Roads, Mr Ross Blinco, replied that there was no current requirement for the land. The SWTC Study was expected to be completed by the end of 2003. Mr Blinco wrote that the property should be retained by the Department of Natural Resources and Mines “until this study is completed and property requirements known”.[40]
[36] Exh. 9 RSM-16 p.72.
[37] Exh. 9 RSM-16 p.73.
[38] Exh. 12 p.21.
[39] Exh. 9 RSM-22 p.126.
[40] Exh. 9 RSM-23 p.128.
The map dated November 2003[41] of the Preferred Corridor Investigation Area clearly includes the applicants’ land and the precise alignment of the corridor was shown in the map dated June 2005.[42] The respondent says that this is the time when it became known that the land would be resumed and that the map published in November 2003[43] showed that from then it could be said to be likely that the land would be resumed.
[41] Exh. 9 RSM-26 p.133.
[42] Exh. 9 RSM-28 p.136.
[43] Exh. 9 RSM-26 p.133.
The applicants point to a response document dated 2 September 2010 written by Mr Edward (Eddie) Peters to the Acting Information Commissioner in response to Ms Mahoney’s approach to the Information Commissioner. The letter refers to the SWTC going to the Cunningham Highway/Ipswich-Boonah Road at Yamanto.[44] In his affidavit sworn on 8 June 2012, which became Exhibit 10, Mr Peters, who has now retired from the Department of Transport and Main Roads, swears that he did not intend to imply in his letter that the western connection of the SWTC was to be specifically at the intersection of the Cunningham Highway and the Ipswich-Boonah Road, which is pointed to by the applicants as very significant since it is where their land is. Mr Peters explains that his purpose was to convey that the SWTC would connect to both of the stated roads, “either individually or together”[45] “within the general area of the suburb of Yamanto”.[46] I note that his response document said “at Yamanto”. (emphasis added)
[44] Exh. 10 para 14 and Exh. 6 p.138 at 139.
[45] Exh. 10 para 17.
[46] Ibid.
In paragraph 18 and following of Exhibit 10, Mr Peter states:
“18. It was not necessary that the SWTC would simultaneously connect with Ipswich-Boonah Road and the Cunningham Highway at the intersection of these roads. It was open for the SWTC to connect with the Cunningham Highway and then connect with Ipswich-Boonah Road separately. The only requirement was that the connection occur within or approximately within the suburb of Yamanto.
19. To my knowledge no specific point for the connection or connections to these roads had been identified when the 2007 Integrated Regional Transport Plan ‘2007 Vision - a draft transport technical paper’ was published in October 1999.
20. I understand that the final location of the SWTC was identified from the options developed in the planning work that was carried out by Sinclair Knight Merz and was not finalised until after 2000.” (emphasis added)
I observe that the effect of the evidence of Mr Peters and Mr Michel is that the actual route of the SWTC was not chosen until well after the applicants’ land was down-zoned and that the respondent did not seek to influence the ICC to do so.
The report prepared by consultants Sinclair Knight Merz shows that at November 2003 three options were being considered for connecting the SWTC to the Cunningham Highway.[47] The first option referred to in Part 3.2.6 of that report was that the connection be at the existing Ipswich-Boonah Road interchange, where the applicants’ land is. The consultants expressed the view that:
“The key issue here is the connections’ relationships to the Ripley Town Centre and surrounding residential and other land uses … ”[48]
These relationships had been considered in an earlier part of the report.[49]
[47] Exh. 15A, 3.2.6, Options A,B and C.
[48] Exh. 15A 3.2.6 para 1.
[49] Exh. 15C SKM Report 3.1.5.
When cross-examined about those aspects, Ms Mahoney’s responses demonstrated the gap between the parties.
Do you accept that in August 2002 the final alignment for the road had not been determined?-- I could -I could accept the final alignment had not been determined.
Mmm?-- I can accept that.
And you will still want to say though, won't you, that your land had been selected as the end point?-- I think that the termination at the end point defined where the corridor was going. The whole of these investigations, let's - let's be clear, they were called Springfield to Cunningham Highway. They selected two end points.[50]
[50] T 1-74 L 2-15.
…
Now, you can see that that is now showing the preferred corridor investigation area in November 2003?-- Yes.
And you can see, and I think it's fair to concede, that at as of November 2003 the preferred corridor investigated area showed that a resumption of all or part of your land, or resumption of land very close to your land, was at that point a likelihood?--That’s correct.
Yes. And that was something that originated in 2003?‑‑ That’s right.
After a study of all sorts of applicable constraints, vegetation, fauna, flora-----?--Mmm.[51]
[51] T 1-74 L 40-50.
November 2003, do you agree with me that that was the first time that it could be said with any degree of confidence that either your land or land very close to you was likely to be required?--I can't agree with that-----
All right?-- -----entirely. I only partially agree with that.
Well, the fair part of you wants to completely agree with me, but the litigant-----?--No, no.
-----in you wants to disagree, that's correct, isn't it?-- No. It is Springfield to the Cunningham Highway and obviously there was - it wasn't just as if there was any point on the Cunningham Highway. If you're planning a road you're not likely to leave it 2003 when you send out your notice of intention to resume in 2005.
Now-----?-- Cunningham Highway connection was known before all these other details were settled.
You keep saying that, and I keep disagreeing with you. We'll argue about it at the end of the case. You might think it is, but let me assure that it's a very serious debate about it. Now, if you looked in at page 136 you can see that that is the SKM June 2005 final recommendation for the-----?-- Mmm.
-----alignment of the road?-- Mmm.
That was, I suggest to you, the first time that the precise alignment of the road was known?-- Yes, that's correct.
Now, can we just go back a little bit. If we go back to page 133, see that?-- Just a moment.
That's the 2000 and-----?-- Three, November.
Yes, that's the November 2003. Now, at that stage we all agreed that the preferred corridor investigation area was either going to go through your land or very, very close to it indeed?--Yes.
Yes. And your position is that the council really knew about that in September 1998 when the decision was made to adopt the planning scheme which resulted in the change of zoning to your land?-- No. I'm saying that council knew the end point of the corridor and the importance of the land in the whole context of the South West Transport Corridor by that date - by the date they down-zoned us.
Mrs-----?-- I'm saying that.[52]
[52] T 1-74 L58 to 1-75 L 50.
To summarise, the applicants say that the ICC knew the end point of the corridor when it down-zoned the land and the respondent says that the end point, the point at which the SWTC corridor would join the Cunningham Highway, was not known to anyone until years after the down-zoning. The respondent also says that it did not have any input into the down-zoning decision. It would not be necessary for the applicants’ case to succeed for it to prove any involvement by the respondent in the down-zoning decision and the applicants do not suggest that there was any special request from the respondent to the ICC to down-zone their land.
In the cross-examination of Ms Mahoney, Counsel for the respondent also made clear that there would be reliance on the evidence of Mr John Stephen Adams.[53] Mr Adams has been a town planner since 1980 and he is the City Planner for the ICC, where he has worked since 1981. Mr Adams’ statement is to the effect that it was usual practice in 1999 that the owners of land would not be specifically notified of plans to rezone their land.[54] There was a public consultation process and submissions were received about the proposed plan. No submission was received from the applicants.[55]
[53] Exh. 13.
[54] Exh. 13 para 22.
[55] Exh. 13 para 29.
Mr Adams recalls that the land “was suitable for a Rural zoning because it was”:
(a) affected by the ANEF in regard to aircraft noise
(b) outside of the readily serviceable area of the ICC
(c) not required for development in the near future
(d) the Cunningham Highway at that location provided a logical boundary to the urban footprint[56]
(emphasis added)
Mr Adams goes on, in his statement, as follows:
“I have advised Ms Kathryn Mahoney (applicant) and Mr David Perkins (town planner for the Department of Transport and Main Roads) of these reasons”.[57]
(emphasis added)[56] Exh. 13 para 31.
[57] Exh. 13 para 31.
Mr Adams has not said that the land was in fact down-zoned for reasons (a), (b), (c) and (d), only that it was suitable for such a zoning for those reasons. At paragraph 37 of Exhibit 13 he states that on 21 September 2006 in response to a request for reasons for the down-zoning he wrote to Ms Mahoney advising, inter alia, that:
“(c) it would appear that the Draft Strategic Plan designated the subject land as Rural because the Subject Land was:
(i)subject to overhead aircraft noise from the Amberley Air Base which rendered it unsuitable for urban residential development;
and
(ii)difficult to service with urban infrastructure owing to its topography and location to the south of the Cunningham Highway;”[58]
(emphasis added)
[58] Exh. 13 para 37.
The actual letter is attachment JSA-5 to Exhibit 13 and is, relevantly, in the following form:
“It would appear that the Rural designation was based around the fact that the land was:
(a) …
(b) … ”
(emphasis added)
The content of (a) and (b) was the same as (i) and (ii) above. This content was repeated by Mr Adams in his letter dated 22 November 2011 which is attachment JSA-8 to Exhibit 13.
It is clear that these reasons are derived by reconstruction from the matters described in (i) and (ii) and repeated in (a) and (b).
Mr Adams accepts, at paragraph 41 of Exhibit 13, Ms Mahoney’s notes of their meeting on 6 September 2008 wherein it is recorded that he “did not think that the specific reasons for the down-zoning of the subject land would have been recorded by ICC”.(emphasis added)[59] The notes say that “He does not think that any explanation for the decision was recorded”.[60] (emphasis added) He states that he is not aware of any request by the Main Roads Department to rezone the land.[61]
[59] Exh. 13 para 41(c).
[60] Exh. 13 JSA-6 at p.103.
[61] Exh. 13 paras 53, 54 and 55.
Mr Adams attended Court under subpoena[62] and gave evidence that the ICC had a preference for the SWTC to come out to the Cunningham Highway in the general vicinity of Champions Way at Willowbank.[63] The ICC and Mr Adams thought that was “the logical strategic location for it”[64] in view of the growth that was being planned for.[65] Mr Adams said he was not aware of any possible connection between the zoning of the land in 1999 and its resumption in 2006.[66]
[62] T 2-39 L 32.
[63] T 2-40 L 20.
[64] T 2-40 L 24.
[65] T 2-40 L 25.
[66] T 2-43 L 32-35.
In re-examination, Mr Adams was taken to pages 23 to 26 of Exhibit 7 where the air noise contours are mapped on the land. That showed, Mr Adams said, that the land was “Totally unacceptable for residential uses.[67] The Strategic Plan’s designation of this land as Rural did not change its zoning but would have been a matter of importance to the ICC in assessing applications for development of the land.[68] As to how the ICC would act to protect land, Mr Adams was asked:
“Would you endeavour to do it by down zoning land from future urban to rural?”[69]
His reply was:
“No, we’d normally negotiate it as part of the development application.”[70]
[67] T 2-66 L 20.
[68] T 2-72 L 49-52.
[69] T 2-73 L 19.
[70] T 2-73 L 19-20.
High level planning
The case for the applicants places very great reliance on high level planning decisions evidenced by documents which they say brought about the ICC’s decision to down-zone the land. Pursuant to an approach to managing the population growth in South-East Queensland which the State Government adopted in 1990 a Western subregion of Councils (WESROC) group provided recommendations to inform the planning policy known as the Regional Framework for Growth Management (RFGM). The April 1995 Report of the Steering Committee included an indicative map titled “Proposed Development of WESROC 2011” which shows the applicants’ land tentatively outside of the area marked for urban development.[71] The RFGM listed “Relevant Priority Actions” including:
“13.14 Ensure that identified major existing and future transport corridors are protected through planning schemes”[72]
The final WESROC structure planning report, completed in September 1995 included Recommendation 32, that there be a major transport corridor to link the Cunningham Highway, Logan Motorway, Ipswich Motorway and Centenary Highway via Ripley and Springfield.[73] Recommendation 44 was that Commonwealth, State and Local Government adopt as the basis for transport planning in the WESROC subregion the development of a full transport corridor “linking the Cunningham Highway, via Ripley, Redbank Plains and Springfield, to the Logan Motorway”.[74]
[71] Exh. 12 p.39.
[72] Exh. 6 p.10.
[73] Exh. 6 p.3.
[74] Exh. 6 p.3
The Integrated Regional Transport Plan in 1997 refers, at page 68[75] under the heading “South-west of Ipswich” to a transport corridor which “in the longer term” could be extended from the Ipswich-Boonah Road to the Cunningham Highway.
[75] Exh. 14 volume 1 p.86. This can also be found at Exh. 6 p.14.
The 1998 Regional Framework for Growth Management contained a principle that early provision should be made to protect the routes of high capacity corridors such as the Springfield-Ripley-Ipswich corridor.[76] Local governments had a lead agency role for integrated transport and land use planning in their geographic areas.[77]
[76] Exh 6. p.21, the note.
[77] Exh. 6 p.16, last paragraph.
The respondent says that this high-level direction was “broad-scaled”[78] and that the corridor could not be protected until at the earliest 2003 when it became clear where it would be.[79] The evidence was that the respondent would not have sought down-zoning and ICC, Mr Adams said, would not have down-zoned the land to protect the future corridor. The claim made by the applicants is that the high level planning decisions actually had a real and early influence and it is clear that such was intended.
[78] T 3-27 L 20-30, T 3-21 L 45-50
[79] T 3-22 L 23-30.
The ICC has no documents which disclose why the down-zoning occurred[80] so the inquiry is necessarily widened. The respondent argues that the high-level planning documents are too far removed from the decision to be indicative of why it was made, a proposition with which the applicants disagree.
[80] T 2-45 L 27-38.
Town planning evidence
The respondent called Mr David Wayne Perkins, a town planner. Mr Perkins prepared a report looking at the “San Sebastian Principle” aspects; that became Exhibit 7. He also prepared a town planning report, Exhibit 12, and with Mr Scott Richards, the town planner engaged by the applicants, prepared a joint report. In evidence-in-chief the following exchange summarises Mr Perkins’ views:
It's apparent from a perusal of your reports that you have looked at, first of all, the history of the zoning of the subject land?-- Yes, I did.
In the context of the planning schemes-----?-- Yes.
-----that have applied?-- A draft - draft - including the draft strategic plans from former Moreton-----
Yes?-- -----the Moreton Planning Scheme and the draft Ipswich Planning Scheme.
Right?-- Ipswich Planning Scheme.
And you have looked at and examined the various constraints and attributes of the land within the context of those planning documents; is that correct?-- Yes, as identified in those documents.
And you're aware that in these proceedings, the applicants are specifically concerned about the treatment that their land received in the 1999 planning scheme which was presented on the 19th of February of that year?-- Yes. I certainly understand there's a concern there.
Now, can I ask you this question, please; having examined the history of the zoning of the land, the various changes that you’ve mentioned, the treatment that the land - that the scheme and its policies afforded to the subject land in the periods of interest, that is from 1982, at least, until 1999 and you looked beyond that?-- Yes.
Is there anything about the treatment of this land by the council over those years that raises any issues or concerns with you to the effect that the way the council treated the land was in any sense associated other than with planning purposes or whether it was associated with the ultimate resumption of part of the land?-- From my investigations there's no doubt in my mind it's really been about planning purposes and not connected with the resumption of the land.
Right. And so we have two, if you like, independent avenues of inquiry; that is the planning history and then the resumption history; correct?--Yes, that's right.
And again, does your investigation reveal any overlap between the two that might suggest that one was done with the knowledge of the ultimate resumption?-- No.[81]
[81] T 3-37 L 2-50.
Mr Perkins was of the same view as Mr Adams, that it would not be suitable to make zoning changes to land unless and until there was “absolute clarity”[82] where the transport corridor would be “by reference to metes and bounds”.[83] In his opinion “it’s - it’s only when that alignment is actually finally resolved that - that the question of - of an appropriate zoning comes into play.”[84] Mr Perkins described as “one of the inputs in that planning process”[85] the July 1997 “2007 Transport Infrastructure Projects for Metropolitan Brisbane” vision map which under “Freight Projects” at F7 thereof stated “South-West Transport Corridor - plan & preserve corridor (Cunningham Highway-Springfield)”. On that map F7 is shown as an arrow-headed dotted line heading westwards to the south of the applicants’ land, which is marked as “site” with an arrow. Those latter marks clearly having been added to the map for present purposes and not part of the original.[86] It is not clear what actual outcome might occur from this being “one of the inputs … ” given that the “metes and bounds” of the corridor were not known until much later, in June 2005 in fact.[87]
[82] T 3-42 L 55.
[83] T 3-42 L 54.
[84] T 3-66 L 30-32.
[85] T 3-66 L 28-29.
[86] Exh. 12 p.52.
[87] Exh. 12 p.67.
When it is recalled that town water was connected to the land[88] and that it could be sewered[89] although a pumping station may be required,[90] much of the respondent’s case settles upon the aircraft noise considerations as a possible justification for a decision the reasons for which were not documented. Mr Perkins gives his opinion in Exhibit 7 that:
“120. There is no evidence to indicate that Ipswich City Council removed the land from the Future Urban Zone and placed it in the Rural Zone in 1999 because of any knowledge or intent that part of the Land was at some later date going to be needed for transport infrastructure.”
It would be equally able to be said that there is no evidence produced by the respondent showing why the ICC did this, only opinions of why on the facts it could have done so.
[88] Exh. 5 p.4 1.24 and Exh. 6 p.127 6.2.
[89] Exh. 6 p.127 6.2.
[90] Exh. 8 para 1.08.
Mr Perkins prepared an appendix to Exhibit 7, showing 38 sites investigated for potential acquisition for the final alignment of the SWTC.[91] He concludes that “The table does not indicate any correlation between zoning changes and the SWTC project.”[92] The table commences at page 184 of Exhibit 7 and also at page 72 of Exhibit 12. The table shows that many of the sites resumed for the SWTC were actually up-zoned between 1982 and 2006. It was pointed out in cross-examination however that the dates of the zoning changes were not all shown.[93] Such particularity may have made the data more useful. Properties listed as 9 and 11 were both affected by aircraft noise from Amberley but were up-zoned, with constraints imposed on development to reflect the extent of the noise.[94] This is an illustration of the impact of aircraft noise being factored in to the development potential of the land in what seems a more precisely calibrated way than by simply down-zoning the land. This demonstrates action consistent with the evidence of the town planners but cannot rule out that the applicants’ land, not being considered in the context of a specific development application,[95] was dealt with differently but still as a step in the scheme.
[91] Exh. 7 p.184 and following and Exhibit 12 page 72 and following.
[92] Exhibit 7 p. 23/24 para 126.
[93] T 3-90 L 26.
[94] T 3-91 L 35-37.
[95] T 2-47 L40-50.
The witnesses
From my observations of all the witnesses who gave evidence, I am satisfied that they were being truthful and endeavouring to be of assistance to the Court.
Conclusion
Any reduction in value of the land resumed which is due to the resumption scheme will be disregarded in assessing the value of what has been taken. It is not necessary that the step in the process be undertaken or connived in by the present respondent. I accept the evidence that the respondent did not do anything to seek to bring about the down-zoning by the ICC of the land subsequently resumed. The ICC is suggested to have taken the step as the circumstances, particularly the aircraft noise affecting the land, would have made it a proper exercise of planning authority to do so. If that were the case then the project has not been an influence in the down-zoning and the compensation would be the $275,000 agreed on where it is proper to assess it on the basis of the land being zoned for rural use. The actual reason or reasons for the down-zoning were not recorded and are sought to be inferred, as has been considered. The use of planning power was argued to be unsuitable until the detailed course of the transport corridor was known. Against this, the applicants point to the high-level planning documents, the mapping of which is rather vague, showing at best a potential for the corridor to go in a westerly direction with an indicated course to the south of this land. The ICC was itself favouring extending the study area for the corridor to the south of a previous draft, taking it further from the applicants’ land. This, it argued, weighs heavily against the conclusion that the ICC would have down-zoned the land in preparation for it to be part of the corridor. This must be considered in the context of all of the studies that were done to refine the planning of the route for the transport corridor. I am not satisfied on the evidence that the progressive planning regime was constrained by an already-chosen end point. It is however unnecessary for the applicants to show that the route or any part of it had been pre-determined. They would succeed if they show that the rezoning was entirely due to the underlying scheme. In this they point to the instruction that could only be interpreted as from the strategic planners to the local authorities to protect the corridor. To say, as the respondent does, that this in effect means that this is only “one of the inputs” into planning does not give any real significance to the authoritative instruction, which was issued years before the route was precisely defined by “metes and bounds”. The ICC was required to preserve the corridor and at a time after that direction it down-zoned this land which reduced its development potential, an action that could well be understood as directed to preserving the corridor. It is clear that the route and end-point of the corridor were not known until years after this action but the nature of the action is consistent with the required goal and it was possible that the land would be required even though the ICC favoured a more southerly potential route. The applicants would be able to succeed if they can show that it is more likely than not that the down-zoning was intended to preserve the possible route of the corridor.
When the down-zoning is viewed in the light of the existence of the instruction to preserve the corridor, and accepting that to interpret this instruction as incapable of being acted upon until the actual details of the corridor were finally settled is to interpret it as lacking the effect it clearly directs, it is more likely than not that the down-zoning was done in pursuit of the scheme. This is notwithstanding that the scheme still had to mature to the “metes and bounds” stage. This conclusion is easier to reach in view of the fact that there is no evidence of why the decision was actually made.
I am accordingly satisfied that compensation should be assessed as if the land, when resumed, enjoyed its former zoning and therefore the associated development potential. In accordance with the agreement of the parties relating to quantum in such circumstances, compensation is assessed at $1,707,500.
Interest
Interest ought to be allowed so as to preserve the value of the award. Interest is allowed at the rates set out below on and from the date of resumption on 24 March 2006 to and including the day immediately preceding the date upon which payment is made.
Interest rates
The interest rates applicable are:
Year Rate
2006 5.5%
2007 6%
2008 5.75%
2009 5%
2010 5.5%
2011 5%
2012 3.5%
Costs
Any application for costs is to be filed and served within 14 business days of the publication of these reasons and any reply is to be filed and served within 14 business days of the application.
Orders
1.Compensation is determined in the amount of One Million, Seven Hundred and Seven Thousand, Five Hundred Dollars ($1,707,500).
2.Interest is payable to the applicants at the rates applicable for the relevant years, that is:
2006 5.5%
2007 6%
2008 5.75%
2009 5%
2010 5.5%
2011 5%
2012 3.5%
3.Interest is payable on and from the date of resumption to and including the day immediately preceding the date on which payment of the sum due is paid.
4.Any application for costs is to be filed and served within 14 business days of the publication of these reasons and any reply is to be filed and served within 14 business days of the application.
WA ISDALE
MEMBER OF THE LAND COURT
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