Marshall v Director-General, Department of Transport
[1998] QLC 18
•20 February 1998
LAND COURT
BRISBANE
20 FEBRUARY 1998
Re: A92-77
Determination of Compensation -
Resumption by the Director-General,
Department of Transport, for Road Purposes -
Acquisition of Land Act 1967 and the
Main Roads Act 1920-1985
BETWEEN:
Melville Robert Marshall
Claimant
and
Director-General, Department of Transport
Respondent
J U D G M E N T
On 30 September 1985 a Notice of Intention to Resume issued from the secretary of the Commissioner of Main Roads under the provisions of the Acquisition of Land Act 1967. The recipient and the claimant in this matter, Melville Robert Marshall, held a property of 53.6267 ha described as Lot 2 on Registered Plan 182906 in the Parish of Mooloolah, together with an adjoining block of 22.333 ha (Subdivision 7 of original Portion 58, Parish of Mooloolah) referred to in aggregate as Mr Marshall's land, the parent block or similar. The two blocks, totalling 75.959 ha, are separated by Eudlo Creek which runs through a corridor of rain forest. The joint lots are of irregular shape. A proclamation published on 1 February 1986 was expressed to take 5,520 m² for road purposes from Lot 2, however, this proclamation was amended by proclamations published on 26 March 1988 and 14 May 1988 which, taken together, adjusted the area taken to 5,555 m². A claim dated 21 April 1986 was lodged with the then Commissioner, the predecessor in office of the Director-General, Department of Transport, the respondent in this matter, in the amount of $4,532,692. The Crown Solicitor referred the matter to the Court on 7 December 1992.
Leave was granted for the claim to be amended and in its final form the particulars of compensation claimed are as follows:
"4. (a) Land
(i) Raw land 2,210 m² value @ $30,000/ha = $6,630.00
(b) Special Value to the Owner or Damage due to Severance Arrived at by reference to the losses sustained by the owner as a direct consequence of the resumption, being 'that [amount] which a prudent man would have been willing to give for the land sooner than fail to obtain it.'
(i)
Loss of value of winnable sand on resumed and contiguous balance lands:
100,000 m³ (struck) @ $2.20/m³
Extracted over two (2) year life and discounted
@ 15% = $178,828.00 Alternatively, over twenty (20) year life and discounted @ 15% = $68,850.00
(ii)
Loss of working, dumping and parking platform constructed on resumed land arrived at by reference to the cost of replacement on balance land:
$360,920.00
(iii)
Costs, expenses, fees and other outgoings thrown away by the claimant as a direct consequence
of the resumption: $24,105.24 (iv) The claimant has suffered loss, damage and a diminution in the value of the balance lands occasioned by the loss of direct access to and egress from the balance lands to the Bruce Highway as a direct consequence of the respondent Authority's compulsory acquisition of his lands. The restriction on access purportedly imposed on the claimant's land by the respondent prior to resumption is not relevant to the claimant's claim for compensation in respect of such lost access as there existed a direct relationship between the imposition of such restriction and the Authority's road construction works whereby the imposition of the restriction on the claimant's access was no more than a step in the resumption process. Further, the restriction on access was a character and imposed in a manner rendering it either null, void and of no effect as having been made improperly for an improper purpose and "ultra vires", of, voidable at the instance of the claimant whereby the respondent Authority may no longer rely upon such restriction as a bar to the claimant's claim to be compensated for the loss of such access.
In the premises the claimant claims $20,000.00
TOTAL CLAIMED THIS HEAD $590,483.24 ALTERNATIVELY $480,505.24 (c) Damages Due to Injurious Affection As a direct consequence of the construction of the road on the land resumed by the respondent Authority, the claimant has suffered loss, damage and a diminution in the value of the balance lands in that as at the date of resumption such lands could reasonably have been foreseen to be rendered more susceptible to flooding. The claimant's claim for compensation is calculated by reference to the cost of flood mitigation works already carried out and remaining to be carried out on the balance lands sufficient to return the said lands to the same degree of susceptibility to/immunity from flooding as was the case at the date of resumption for rainfall events in the
Eudlo Creek catchment. $651,325.00 (d) Claim Disturbance Items:
(i) Legal and valuation fees $3,246.00 (ii) Relocation of site office and other incidentals $8,850.00
TOTAL CLAIMED ALL HEADS $1,253,904.24 ALTERNATIVELY $1,143,926.24 5. AND the claimant claims $1,253,904.24 or alternatively $1,143,926.24 together with interest thereon and costs."
The resumed land comprises a strip located on the eastern boundary of the parent block where it abuts the Bruce Highway. Mr Marshall's land has a frontage of 362 metres to that road. The land is located 8 to 9 km south of the Nambour Post Office and about 700 metres south of the junction of the Maroochydore Road and the Bruce Highway. The parent block enjoys the services of a town water supply, electricity and telephone, whilst connection to the sewerage plant at Kunda Park was available by construction of a rising main. The area is well supported by developed road infrastructure, with the Marshall land having had a single access point from the Bruce Highway in its north-eastern corner. Following the resumption, the access to the land changed, giving rise to the item of claim designated 4(b)(iv) included above. The section of the Bruce Highway which fronts the subject land was declared "limited access" by proclamation on 19 March 1977 and, following the construction of the works which generated the need for the resumption, access to Mr Marshall's land was provided in a more indirect manner involving an exit from the highway in a position north of the previous access point, then via Leafy Lane, which tracks back to the Marshall land. Leafy Lane functions as a service road which changes in name to Aird Lane, which then joins the Nambour connection road about 300 metres west of the Bruce Highway/Maroochydore interchange.
The resumption of Mr Marshall's land was associated with a project the respondent had planned for the duplication of a large part of the Bruce Highway. Prior to the duplication project being undertaken, the highway where it passed the subject land comprised two lanes only and, following duplication, that carriageway became the southbound lanes. The new northbound lanes were constructed to the west and it was this new construction which gave rise to the resumption.
The parent parcel of land is within the flood plain of Eudlo Creek and has been the subject of extensive extraction of sand and associated materials since its purchase by Mr Marshall in 1974. The result is that there are now two large main lakes formed on the land which is zoned "Extractive Industry" under the prevailing Town Plan. The first lake which one encounters just inside the entrance to the land was largely formed at the time of resumption. I will call this the "main lake". A second lake has since been formed towards the back of the property and, given its use on occasions for water-skiing purposes, it was referred to as the "ski lake" during the hearing. Mr Marshall and his wife live on the land in a house constructed since the acquisition though utilised a caravan on the land prior to that.
Eudlo Creek, where it touches the parent parcel, is located in a well-defined channel, however, there was what Mr Marshall described as an anabranch which departed the main channel at a point to the west of where the main creek travelled under a bridge under the pre-existing two-lane Bruce Highway. The anabranch traversed in a north-easterly direction along the eastern boundary of the parent parcel, then drained under the previous highway through two large banks of box culverts.
In company with Mr Marshall and counsel, I inspected the parent parcel, including the resumed land, and the sales properties referred to by the two valuers who were called. These inspections assisted me in my appreciation of the evidence.
Injurious Affection - Claim Item 4(c)
The current southbound carriageway was constructed in 1962 and drainage was provided under that carriageway by a bank of eight 2.1 metre by 2.1 metre box culverts and a bank of ten 2.1 metre by 2.1 metre box culverts, together with a 4 by 9 metre span bridge. In the process of construction of the new northbound carriageway which commenced in 1989, the two banks of box culverts were removed and replaced under each carriageway with two 1.9 metre diameter pipes, whilst the bridge was extended to seven 9 metre spans. In the claimant's view, the new drainage is inadequate and this inadequacy resulted in the parent parcel being flooded in February 1992, following substantial rains and following construction of the new carriageway. Mr Marshall explained how the flooding had inundated his land and had caused damage to equipment on his land. He said that to avoid a recurrence either the pre-existing box culvert drainage had to be reinstated under the highway or the previously dry land on the parent property needed to be increased in height by fill to render it secure from similar flooding. Mr Marshall and his wife were on the parent parcel living in a caravan in February 1992 during a heavy rainfall event and he described in evidence how he saw the flood developing. One indicator of the severity of the flooding which appeared to impress itself on Mr Marshall was that drums of bitumen of about 600 millimetres diameter floated almost below water surface level to the highway and were then carried over the highway to the other side. He said that his property was the only property flooded on that occasion. There had been a rainfall event of notable proportions in 1983, that is prior to the highway upgrade, however, on that occasion his land had not been inundated.
It is said by the claimant that compensation for injurious affection should be awarded on the basis that, in general terms, the highway duplication which resulted from and which was the purpose of the resumption from Mr Marshall's land, brought about the 1992 flooding and, on the basis of that, has reduced the value of Mr Marshall's retained land given the prospect that further flooding following certain rainfall events will take place. The measure of the amount of $651,325 claimed is based on the cost of flood mitigation works needed, on the claimant's view, to return the land to its pre-resumption state of immunity from flooding.
The claimant called on Maxwell Francis Winders, Consulting Engineer, to provide evidence that it was, indeed, the highway duplication which caused the 1992 flooding of the parent parcel, that is increased the flood levels on the property beyond that which might have otherwise have been the case; and to quantify, with the assistance of surveying evidence, the extent of the claim in terms of the need to raise the levels of sound land to above the expected flood level in the case of certain rainfall events. Mr Winders employed a hydraulic model of the Eudlo Creek flood plain and, to assess flood immunity criteria, studied the hydrology of the Eudlo Creek catchment. He concluded, in brief, that the northbound carriageway upgrading of the Bruce Highway was at a profile generally higher than the original highway and that the drainage of water from the Eudlo Creek flood plain through the new pipes and bridge construction was inadequate. Mr Winders was assisted in his evidence by David Neil Baker, a licensed surveyor, who gave evidence to show the level at which additional filling would be needed on particular sites on the subject land to achieve suitable flood immunity. Estimated costs were provided by a Mr Monson, whom I introduce in detail later.
Mr Marshall said that the anabranch which flows from Eudlo Creek is very large and, in times of heavy rainfall prior to the highway upgrade, would take two-thirds of the flood waters. He became aware of a plan by the respondent to remove the pre-existing box culverts and to not fully replace them and he complained to the constructing authority that such a strategy would result in flooding on his land. He maintains the view that the replacement of the box culverts by the two smaller pipes is inadequate and is the direct cause of the flooding on his land.
It goes without saying that the replacement of large box culverts with smaller pipes must result in a lesser accommodation of water flow, however, the respondent's strategy in dealing with water coming from the Eudlo Creek and its flood plain was more sophisticated than a simple reduction in culvert capacity. The evidence showed that the respondent's approach was to provide for an increase in the volume of water which would flow through the bridge under the Bruce Highway and to use the new and smaller culvert piping to reduce ponding in the area of land now located between Mr Marshall's boundary and the highway embankment. It was reasoned by the respondent's employees that the angle of flow of water through the anabranch to culverts located in a new highway embankment located further west than the original single carriageway would be inefficient and that directing water through an enhanced bridge capacity would be preferable. In arriving at its strategy the respondent paid regard to those embankments which Mr Marshall had constructed to retain the lakes produced following his excavation works. If I can put it in my terms: the respondent formed the view that these embankments contained the water flow in Eudlo Creek, which would otherwise have been allowed its freedom across the flood plain, thus ensuring that a greater and more concentrated volume of water would arrive at the Bruce Highway requiring conveyance under that structure to be distributed downstream. This view, though on the evidence not universally held by employees of the respondent authority, contributed to the strategy finally adopted.
Christopher Andrew Russell, Consulting Engineer, was called by the respondent and gave evidence that the respondent's strategy for the disposal of Eudlo Creek water was an appropriate one. Mr Winders, on the other hand, disagreed with that proposition saying that the reduction in culvert capacity replaced by an inadequate bridge opening, meant that the disposal of water held back by the obstacle of the new and higher northbound roadway embankment was less than would be desired having regard to appropriate engineering standards.
Mr Russell carried out investigations and studies similar in broad description to those provided by Mr Winders, though he employed a quite different methodology and made reference to some different data from that relied upon by Mr Winders. Mr Russell, as I have indicated, concluded that the respondent's water flow strategy was appropriate but, in particular, he concluded that the main cause of increased flooding on Mr Marshall's land in 1992 was brought about by Mr Marshall's own embankments. Mr Russell concedes that some increase in flooding, though of quite small proportion compared with Mr Winders' figures, would have been generated by the highway duplication, but largely in reliance upon Mr Russell's evidence, it is the respondent's case that the major cause of the flooding is not the highway duplication project. I should point out that the respondent's case is not in this aspect based on the proposition of contributory negligence, but is one concerned with the issue of causation. The respondent says that the flooding, or the bulk of it, would have occurred in any event because of the presence of the embankments. Mr Russell was supported in his evidence by Donald Gerard Carroll, a Civil Engineer who, assuming the accuracy of Mr Russell's data, checked the product of the Russell methodology by the use of different techniques. In very large part, Mr Carroll's conclusions supported those of Mr Russell.
The disagreement between Mr Winders and Mr Russell, if I can put it in those terms, occupied centre stage in the evidence that I heard and gave rise to a substantial interchange of highly technical and most interesting evidence. However, in the circumstances of this case, it would be appropriate for me to first of all explore the legal basis for the claim of injurious affection.
Compensation in a matter of the type before me falls for consideration under the provisions of the Acquisition of Land Act. Section 20 of that Act provides relevantly:
" 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."
The nature of the heading "injurious affection" is unlike the other heads of compensation
provided for in s.20. Injurious affection is a statutory "add on" not reflected in the term "value of land". In other words, as I understand the statutory provision, were it the case that compensation was to be awarded for the "value of land taken" and nothing more, compensation for loss of land, severance and disturbance would flow, however, none would be provided for injurious affection. The right to claim compensation for injurious affection is therefore very much tied up in the construction of the statutory provision and I note also that others whose land may be affected by the works carried out in a particular project would have no right to claim. Donovan LJ, in dealing with a comparable English provision in Edwards v. Minister of Transport (1964) 2 QB 134 said this:
" If a public authority acting under statutory powers constructs a highway opposite my house but takes none of my land for the purpose, I cannot claim compensation for any diminution of value of my house caused by the noise and other inconveniences inflicted by the traffic. If, on the other hand, part of my frontage is compulsorily acquired and made part of the new highway, the position is different. Then I may claim not only the value of the land taken but also something in respect of any consequential diminution of value of my house." (at 157).
Edwards is the authority often cited as the landmark case in a line of authorities dealing with a significant aspect of injurious affection. Mr Edwards owned two adjoining parcels of land in Shropshire, England, in a peaceful quasi rural setting. He lived in a cottage located on the smaller parcel. Two small triangular pieces of land, one containing 302 square yards, being part of his 2½ acre field and another 38 square yards being part of the curtilage of the house were taken as part of a project for the construction of a new trunk road. This new road was constructed on an embankment and the evidence was that the main damage to the amenity of the house resulted from the stretch of road coming from the south up the hill towards the house, but that by the time the traffic reached that part of the land taken from Mr Edwards, the noise from the passing traffic and the headlights had reduced substantially.
The right to compensation arose under the then s.63 "Lands Clauses Consolidation Act" 1845
which provided:
"In estimating the purchase money or compensation to be paid by the promoters of the undertaking, in any of the cases aforesaid, regard shall be had by the justices, arbitrators, or surveyors, as the case may be, not only to the value of the land to be purchased or taken by the promoters of the undertaking, but also to the damage, if any, to be sustained by the owner of the lands by reason of the severing of the lands taken from the other lands of such owner or otherwise injuriously affecting such other lands by the exercise of the powers of this or the special Act, or any Act incorporated therewith."
Harman LJ delivered the leading judgment. He referred to a large number of authorities to support his central proposition to which I will come in a moment then, in reference to a case considered by the Privy Council (Sisters of Charity of Rockingham v. The King [1922] 2 AC 315 PC), he referred in particular to the advice Lord Parmoor gave in that case. Harman LJ said:
"This is quite categorically stated by Lord Parmoor, that where damage arises partly on the claimant's land and partly off it, he cannot claim the whole damage which has arisen but only that part of it which he can attribute to activities on what formerly was his own land." (at 155)
It is, on my understanding of the case, significant that the parties agreed on the quantum of compensation that would apply if the compensation was to be assessed by reference to the nuisance caused by the noise and such like on the land taken only (£1,600) and on the amount if injurious affection was taken to be referable to all of the nuisance from the new trunk road impacting on the claimant's retained land (£4,000). Their Lordships determined compensation in the amount of £1,600 which figure Harman said was arrived at by "some alchemy" which he did not understand.
Some three years prior to Edwards, the Land Court had to consider a similar question which arose under the then Queensland land acquisition statute "The Public Works Land Resumption Acts 1906-1955". The relevant part of s.19 of that Act is similar to the relevant part of s.20 of the Acquisition of Land Act. The case concerned is Curtis v. The Crown (1961) 28 CLLR 310 and the Court dealt with the issue in this way at p.313:
"As I interpret paragraph (b) of section 19 'the exercise of any statutory powers by the constructing authority' is to be limited to the exercise of statutory powers associated with the purpose of the resumption, the subject of the claim, upon the land resumed from the claimant, to the extent that such exercise injuriously affects the value of the unresumed balance of the claimant's land.
To give a wider meaning to the paragraph would lead to a result that a claimant may seek before the Land Court compensation for injurious affection to his unresumed land by the exercise of any statutory powers by the same constructing authority anywhere in the vicinity. Such injurious affection would not arise from the particular resumption suffered by the claimant."
The issue emerged once more in Westaway v. Council of the Shire of Landsborough (1963) 31 CLLR 1 where the following quotation is taken from p.16:
" It is common ground between the parties, and rightly so, that the words 'any statutory powers' are not to be given an unrestricted meaning so that they apply to every statutory power possessed by a Constructing Authority which in this case is a Local Authority. The meaning of the words must be limited to powers exercised in connection with the specific purposes of the particular resumption. It is immaterial whether the damage results from authorised acts of construction of the works which constitute the purpose of the resumption or from contemplated acts of user of such works.
This interpretation means that the intent and purpose of the section are analogous with the provisions of the English Land Clauses Consolidation Act and the New South Wales and Victorian Acts on compulsory acquisition.
I think it is beyond doubt on established authorities that the acts complained of as resulting in damage whether by way of construction or authorised user must take place on land resumed from the claimant. Sisters of Charity of Rockingham v. The King (1922) 2 A.C. p.315 and the cases therein reviewed, and Laycock v. The Victorian Railways Commissioners (1917) V.L.R. p.556. These cases have been recently followed in Curtis v. The Crown 28 C.L.L.R. 310 and Thorpe & Thorpe v. Brisbane City Council 29 C.L.L.R. p.367 at p.376."
My researches indicate that the first reported consideration in this State of Edwards occurred in Standfield v. Commissioner of Main Roads (1969) 36 CLLR 76 where the Land Appeal Court referred to Edwards with approval, though the issue did not squarely arise. In the Land Appeal Court in Suntown Pty Ltd v. Gold Coast City Council (1979) 6 QLCR 196 the Land Appeal Court had the issue to consider and expressed the principle in this way:
"Injurious affection, in the terminology of the Act, is the type of damage to the retained land which flows from the exercise of any statutory powers by the constructing authority otherwise (i.e. than by severance) injuriously affecting the retained land. This type of damage is related to uses of, or activities on, the resumed land by the constructing authority as a result of the resumption and the consequent depreciation in the value of the retained land." (at 207)
The Land Appeal Court took the opportunity in The Crown v. Corbould (1986) 11 QLCR 50 to provide a useful statement of a summary of the law as it applied to the Edwards' issue:
" In considering the matter the following principles should be noted: (i) It is well settled that the words 'the exercise of any statutory powers by the constructing authority' contained in paragraph (b) of subsection 1 of the section restrict damage to that flowing from the activities of the constructing authority on the land taken from the claimant (Edwards' case (supra) and see Commonwealth v. Morison (1972) 127 C.L.R. 32 (H.C.) per Gibbs J. at pp. 36/57).
(ii) Injurious affection is a statutory head of claim whereas disturbance is not and has always been regarded as part of the value of the estate or interest of the claimant in the land taken on the date when it was taken: S.20(2) supra.
(iii) Reference to the resumption's scheme as such is relevant in an exercise dealing with enhancement - the words 'the carrying out of the works or purpose for which the land is taken" - having been held to refer to the scheme Zoeller v. Brisbane City Council (1973) 40 C.L.L.R. 25 (L.C.) and 198 (L.A.C.)
(iv) Where the resumption forms an integral and inseparable part of the resumptions necessary for the construction of the road the claimant may obtain compensation for damage suffered by him in respect of his balance land flowing from the use made of the land acquired in conjunction with other land acquired for the same purpose where in a practical sense a separation of damage flowing from the use of the lands taken cannot be made (The South East Queensland Electricity Board v. Beaver Dredging Pty Ltd (1984-5) 10 Q.L.C.R. 166 (LAC.)." (at 57)
In Syme v. The Commissioner for Railways (1988) 12 QLCR 98 the then President provided a most useful and cohesive discussion on the relevant Queensland case law at 104-105. The President referred to the Corbould quote that I have included above and then wrote this:
" In the Beaver Dredging case (supra) the Land Appeal Court held that, although the power line structures were mainly not on the resumed land, it could not, in a practical sense, having regard to the rights and obligations imposed by the resumed easement, embark upon a separation of damage flowing from the series of resumptions necessary to construct a major powerline so as to isolate the damage resulting to the retained land to activities etc. actually (or capable of being) carried out on the resumed land.
Two recent cases in the Land Court should be mentioned namely:
(a)
T.M. and J.G. Treston v. Brisbane City Council (1984-1985) 10 Q.L.C.R. 247 - this was a resumption for road purposes of an elongated strip of land being part of a scheme providing for the construction of a connection road. The scheme had the effect of changing the nature of the claimant's retained property from that of an inside residential property in a quiet attractive residential setting to that of a corner position on a busy four lane connection road. The land taken from the claimants was used solely for footpath purposes. The respondent argued that the assessment of damage suffered by the claimants to their retained land should be limited to that which was attributable to the construction placed on or the use of the land taken from them. The Court held that the taking of the land of the claimants formed an integral and inseparable part of the resumptions necessary for the construction of the road and the compensation for injurious affection to the retained land fell to be assessed according to the damage which flowed from the construction of the whole of the new road - in effect paragraph (iv) abovementioned was applied; and
(b)
Ernest Glen Baillie v. The Commissioner for Railways (1986-1987) 11 Q.L.C.R. 95 at p.106. This was a resumption for Railway purposes involving duplication of an existing railway line and construction of an access road beside the railway line. The duplicated line was constructed on the Commissioner's land and the claimants' resumed land was used only for the road. Held: no compensation should be awarded for injurious affection because the activities on the claimant's resumed land were in no way linked with the factor of noise from the trains allegedly causing the nuisance - in effect paragraph (i) above was applied.
Each case must be considered on the basis of its individual facts and
circumstances."
The learned President then went on to say that "the rationale of the approach is, I think, discernable from the above cited cases. The principle exemplified by Edwards' case still applies and is binding on me." It follows that it is binding on me also, though let me refer now to some later authorities.
The Edwards' principle was applied by the Land Appeal Court in Vanhoff Pty Ltd v. Commissioner of Main Roads (1992) 14 QLCR 331; Queensland Railways v. Somerville Funerals Pty Ltd (1995) 15 QLCR 403; Soden v. Commissioner of Main Roads (Land Court unreported 28 February 1990) and Sabina Three Gorges Corporation Limited v. Chief Executive, Department of Transport (Land Court unreported 24 October 1997).
Mr Mack, Counsel for the claimant, submitted that if the claim for injurious affection does not satisfy the Edwards' test, then I should apply the case Commonwealth v. Morison (1972) 127 CLR 32. In giving consideration to this submission I can do no better than to refer to the following words taken from the judgment in Syme:
" I cannot hold that the High Court in Morison v. The Commonwealth of Australia (1971-1972) 127 C.L.R. 32 over-ruled Edwards case. Morison's case involved the resumption of part of a sheep station for the purpose of extending an adjoining air field to make it suitable for use by jet aircraft. The Commonwealth contended that injurious affection should be limited to an allowance for the depreciating effects exclusively traceable to the construction and use of works on the land acquired from the claimant. The Court was unanimous in rejecting the submission but the four judgments handed down contained two streams of reasoning.
Section 23(1)(c) of the Land Acquisition Act 1955-1966 (Cth.) Requires that in assessing compensation regard shall be had to 'the enhancement or the depreciation in value of the interest of the claimant, at date of acquisition, in other land adjoining or severed from the acquired land by reason of the carrying out or the proposal to carry out the public purpose for which the land was required." This is a much wider charge than contained in Section 20(1)(b) of the Acquisition of Land Act of this State. The Commonwealth Act would seem to embrace the whole scheme or purpose of the resumption which may be carried out or proposed to be carried out upon land resumed from the claimant or other lands as well - a measure available in the legislation of Queensland when enhancement falls for consideration - vide Section 20(3).
Two Judges (Gibbs J. - as he then was - and Menzies J.) made the difference in terminology between the Commonwealth Act and the English Land Clauses Consolidation Act pursuant to which Edwards' case was decided a major cause for distinguishing between the two cases.
Barwick C.J. whilst noting the difference in terminology between the relevant section of the Commonwealth Act and the English Act did not make same a reason for distinguishing Edwards' case. At p.39 he said 'In a case in which it is possible to isolate the depreciatory factors to the work done upon or to the use of work done upon the acquired land, it would be proper, in my opinion, to confine the depreciation in value to the effect of those factors.' In that in a real or practical sense he was unable to so isolate the damage in Morison's case to the works constructed on the acquired land, he concluded that the whole depreciation in value due to the use of the extended aerodrome as a jet airport was referable in the circumstances to the works constructed on the acquired land and their use.
Walsh J. Could see no valid reason for not following a trend in American decisions that the land owner is entitled to recover the full amount of the damage caused to his retained land, where it is not possible separately to ascertain the damage caused to the remainder of the claimant's land by the taking and the proposed use of part of it, that use being an inseparable part of a single use to which that land and other adjoining land are put." (at 102-103)
It is not the case, in my view, that a choice is presented to me between Edwards and Morison as if each represented different approaches to the same issue. The issue is not one of inquiring generally as to whether injurious affection should flow, but it is an issue of statutory interpretation: each of these cases dealing with statutes quite different in one essential aspect. In the face of the authorities that I have referred to I am bound to follow the principle enunciated in Edwards and applied consistently through the cases in Queensland, until either the Acquisition of Land Act is changed or a superior Court makes it quite clear that Edwards is no longer to be followed. The prospect of a change was touched upon by Fryberg J in his reasons for decision in Barns v. Director- General, Department of Transport (Land Appeal Court unreported 15 August 1997):
"It also follows that this is neither the time nor the place to consider whether Edwards represents the law of Queensland. It has been applied or distinguished in a number of cases in this court, but as far as I am aware in none has its correctness or applicability in this state been expressly considered. It has always been assumed to have been correctly decided and to be applicable. In particular, in Vanhoff Pty Ltd v. Commissioner of Main Roads" (1992) 14 QLCR 331 "the appellant assumed its correctness and sought to distinguish it. The Court in that case was not invited to depart from Edwards and did not do so, although the judgment raised a number of factors which suggest that it is questionable whether Edwards represents the law. Whether it is open to this Court to reconsider this matter and whether that ought to be done, are questions which can await another day." (at 5)
Notwithstanding His Honour's indication that the application of the Edwards' principle in Queensland invites review, it does not fall to me to do this in circumstances where superior Courts have indicated quite clearly that the principle applies and continues to apply in this jurisdiction.
The primary question in considering a claim for injurious affection in a particular case is to ask what activities or works were carried out on the resumed land, then to ask whether those works caused the nuisance complained of. Such an inquiry is a simple one when facts of the order of Baillie or Syme are presented. In the first mentioned case the nuisance of noise complained of emanated from a railway line constructed wholly on land held by the respondent. The land which was resumed from the claimant in that case was taken to provide an access road along the railway line and the Court held that any injurious affection would be confined to such works and not to works carried out on land held by the constructing authority. In the case of Syme a railway line was involved also and no part of the the railway line noise came from works carried out on the land acquired from the dispossessed owner. Not all cases submit to such easy resolution, however, for there are those "where in a practical sense a separation of damage flowing from the use of the lands taken cannot be made" (see Corbould above paragraph (iv) in reference to Beaver Dredging Pty Ltd).
Vanhoff provides some guidance as to what is involved in the difficult cases where a practical separation of damage is difficult but possible. The following quotation is taken from p.340:
" We are not convinced in 'The Tyre Shop Land' segment of the appeal, that the alleged damage to the remaining land flows from 'the use made of the land acquired in conjunction with other land acquired for the same purpose'. As we understand the evidence it is not the use of the land resumed which is the physical cause of the alleged damage, but specifically the use made of an existing road reserve (even if that use - the median strip - extends into the land resumed).
The question is then asked by the appellant - 'Do we reach the stage in assessing compensation that we take a scheme or even take part of the scheme being a median strip and we split the median strip up into part of the median strip that was constructed on the old road reserve then artificially for no apparent reason, break it up and deal with that part of the median strip that was constructed on land that was subject to the resumption ...?'
The answer to that question we find is 'yes' as the legislation stands, and as set out in 'Principle (i)' in the Corbould case (supra). The appellant submits that such a proposition is non-sensical. That may well be so as a practical market interpretation. However, we repeat the finding of the Land Appeal Court in Corbould case that 'It is well settled that the words "the exercise of any statutory powers by the constructing authority" contained in paragraph (b) of sub-section 1 of the section ' (of the Act) 'restrict damage to that flowing from the activities of the constructing authority on the land taken from the claimant."
This now brings me to the facts of the instant case. The nuisance complained of is flooding. The question to be answered is, "what is the cause of that flooding?" In considering this question, I will proceed on the assumption that Mr Marshall's embankments do not contribute in any way to the flooding. When considering the question of causation, one is concerned with cause and effect or cause and consequence. In simple logical terms, it is whatever stops or obstructs the flow of water that causes the water to back up and for the flooding of the Marshall property to occur, so on one view it might be argued that it is the embankment which supports the new northbound carriageway which causes the flooding. That is a view put by the claimant's side, however, the view put is more complex than that. As I have outlined earlier, it is the opinion of Mr Marshall, supported by Mr Winders, that there is an inadequacy of drainage through the new and smaller culverts and a less than adequate bridge opening. In other words, if these structures were adequate to dispose of the increased flow of water following a certain substantial rainfall event, there would not be a flooding problem. In considering the question of causation, it is, of course, the combination of the embankment and the capacity of the drainage which brings about the net effect of the flood increase in consequence of a certain rainfall event and, therefore, it is appropriate to take each structural element into account in considering the question of injurious affection. Consistent with the authorities to which I have referred, if any part of those structural elements is on the resumed land and in a practical sense may not be treated separately, then injurious affection must flow (on the assumption that I have made that the Marshall embankments do not contribute to flood level increase).
It may be thought that the facts of this case differ materially from those which have gone before it in that a nuisance in the form of noise, lights and dust does not travel from the surface of the road or rail line onto the balance land, as in the bulk of those cases. Here there was a build-up water on the balance land because of the presence of the road, not because of its use. In my view, however, the principle applicable in the present case is the same as that in the authorities that I have cited for just as it is the presence of the road surface which allows the noise to be generated, it is the presence of the road structure that inhibits the flow of water. In the "noise" cases it is the surface of the road which is the culprit, whilst in the present case it is the road structure. That structure which inhibits the flow of water, and I have taken this to include both the culverts and the bridge opening, can be said to cause the flooding, just as in the "noise" cases it is the road surface which causes the noise nuisance.
The road surface of the new northbound carriageway, the new culverts and the extended bridge are all located on the original road reserve. There is, located partly on the road reserve and partly on the resumed land, what I will refer to as a "rock spill", but a critical issue is whether any part of the embankment supporting the northbound carriageway is located on the resumed land. In addition to this issue, the claimant raised the proposition that drainage works were carried out on the resumed land and that these need to be taken into account.
Let me consider first of all the question of the rock spill. There is, located partly on the resumed land and partly on the original road reserve, a rock spill spread over an area of about 80 to 100 metres in length in the southern section of the area where the highway passes Mr Marshall's land. The rocks were said to be 50 to 100 centimetres in size in general with some up to 1 metre in diameter, apparently uneven in their spread on the surface of the land, both in terms of their height and in their distribution. They are not located along a contour. The area in the location of the rock spill is substantially overgrown and it is clear from the evidence that the surveyors had difficulty in locating the exact boundaries of the spill area. Ian Andrew Thomson, surveyor who was called by the respondent, thought that the spill extended about 5 metres into the resumed land, whereas a plan tendered by Mr Baker, whom I have mentioned earlier, indicated the spread to be up to 8 metres. The rock spill was not found on the eastern side of the new carriageway. The spill is located on land designated as being low lying, however, it is not confined to the boundary of that land.
The evidence from Philip James Breene, civil engineer called by the respondent, is that whilst the rock may have some use in the embankment supporting the northbound carriageway; and his opinion on this was more one of speculation than of putting forward a considered view; that part of the rock spill which spread onto the resumed land had, in his view, no discernable purpose to serve. I should mention that no part of the road embankment, if I can use that term generally, extended onto the resumed land in the area of the rock spill. It was suggested by the claimant that the rock may have been associated with a proposed exit lane intended to provide access onto the Marshall land and Mr Breene agreed that the location of the rock spill was at least in part consistent with the provision of such a lane. At some stage, however, the then Department of Main Roads changed its view about how access which should be provided into the claimant's land, so even if the rock spill was placed in anticipation of the original access proposal being pursued, I cannot see how a discontinuance of that plan makes the rock spill part of the road structure. It is clearly the case that the rock spill in no way causes the flooding on Mr Marshall's land, so in that sense alone it cannot be the basis of a claim for injurious affection. To the extent that part of the rock spill may have been part of the embankment supporting the northbound carriageway, I need to consider whether the presence of part of that rock spill on the resumed land means that a practical separation cannot be made between the rock spill found on the resumed land and that which is an integral part of the embankment structure. Mr Baker inspected the rock spill and said that he could see no reason for it being in place. Mr Baker is, of course, a surveyor and it would be the evidence of an engineer that I would prefer and it is therefore Mr Breene's evidence which is of greater interest to me on this point. There was no evidence from the claimant's side to say that the rock is part of the structure, it simply being a possibility in the view of Mr Breene who was called by the respondent. Whilst it is clear that for a claimant to bring himself within a head of claim there is a legal onus to adduce cogent evidence in support of such a claim, it matters not that the source of that evidence is the respondent's side. Having said this, however, I note that Mr Breene's evidence is that whilst the inclusion of that rock in the road structure has some possible engineering merit that the remainder of the rock spill located on the resumed land has no arguable or apparent purpose. I cannot hold that the rock spill on the resumed land is therefore part of the works which cause the flooding. Let me demonstrate my reasoning by analogy. If it were the case that the nuisance complained of was noise emanating from the road surface and for the sake of my example assume that gravel from the road surface has been left either tidily or untidily located on the resumed land. In such a factual scenario a dispossessed owner would not be able to claim injurious affection resulting from noise on the carriageway which is not on the resumed land, on the basis of the presence of gravel on the resumed land. Indeed, even if it were the case that the road surface was gravel and the gravelling extended down the supporting embankment and through the drainage area, a claim of injurious affection due to noise could not be maintained.
Let me turn now to consider the road embankment or batter. Through Mr Baker there was evidence that the road embankment, which is on the western side of the northbound carriageway, has two profiles: one which might be called a two-step batter comprises a section which is relatively steep in nature, the "primary batter", and which then changes to a less steep slope or "secondary batter"; and another where the batter exhibits a single, even profile falling from the shoulders of the road surface to a point within the resumed land area, that is, a one-step batter. It is this second batter profile which is found, according to Mr Baker, in an area extending about 10 to 15 metres in the north-eastern sector of the resumed land. Mr Baker inspected the resumed land and ascertained the batter profiles on that inspection. He took no measurements, nor did he employ surveying equipment, though an actual survey had been carried out by a colleague in his firm which tended to support the view that he put in evidence. That colleague is not a licensed surveyor though, according to Mr Baker, is an experienced graduate surveyor. Nevertheless, it was Mr Baker who was called in evidence and his role, apart from carrying out the physical inspection to which I have referred, was to supervise the graduate surveyor, though not by way of on the ground supervision. Lloyd John Laing, surveyor, for the constructing authority, surveyed and presented a number of cross-sections taken at 20-metre intervals through the length of the boundary of the resumption, and depicted the relevant embankment as being in two steps throughout the length of the road construction. Mr Baker's evidence was that at each of the cross-sections taken by Mr Laing, a two-step batter was in existence, however, the 10 to 15 metres of single-step batter to which he referred was probably located between two of Mr Laing's cross-sections. Mr Laing revisited the site and surveyed further cross-sections at 10-metre intervals and produced further cross-sections indicating a two-step batter throughout. Mr Laing gave evidence that the change in grade between the primary batter, which clearly supports the road formation, and the secondary batter would have been difficult for Mr Baker to discern, given the vegetation in the area concerned and that to the naked eye it appeared that a single batter only was located in part of the north-eastern sector. His evidence was that none of the primary batter is located on the resumed land. The evidence from Mark Gerard Farrell, Surveyor, who carried out a further survey for the claimant's side, was, on my understanding, consistent with that of Mr Laing. Mr Laing also gave evidence that an area of land from the start of the resumed area to the north to approximately where Leafy Lane enters the Marshall property, that is a distance of about 40 metres, has been "stripped, cut and shaped".
Mr Thomson produced a plan which showed the extent of the battering which is located on the resumed land, on his view, to be an overall length of about 90 metres and to have extended somewhat further through the resumed land than is indicated from Mr Laing's cross-sections. In commenting on this, Mr Thomson said that the definition of the final toe of the batter is unclear.
I have no difficulty in concluding that there is both a primary and a secondary batter located in the western part of the road structure and that the primary batter is wholly located within the road reserve, none of it on the resumed land. My conclusion is drawn very largely on the consistency of the evidence between Mr Laing and Mr Thomson for the respondent and Mr Farrell for the claimant. Each of these surveyors carried out the surveying works personally and was able to give oral evidence in support of their field work. Mr Baker had the disadvantage of having to rely on the evidence of a party who was not called and his own investigations were clearly of a less rigorous and technical nature than that provided by the other three surveyors.
What next falls for consideration is whether the secondary batter, which is located both on the resumed land and on the original road reserve, can be seen as being part of the road construction or, to put it in terms of Corbould, to see whether "in a practical sense a separation of damage flowing" from the primary batter can be made. Both Mr Farrell and Mr Thomson discovered road base material in the secondary batter where it is located on the resumed land. Each was of the view, however, that it would be a matter for an engineer to comment on the significance of that information. Mr Breene produced copies of cross-sections being the road design showing the intended road profile. Part of that information reveals that cuttings would be at a 1 in 1.5 incline, whilst those parts of the road in fill would have batters at a 1 in 2 incline. Taking the 1 in 2 batter: this means that the batter falls one measure vertically for every two measures horizontally. In other words, a 1 in 2 slope is steeper than a 1 in 3 slope, but less steep than a 1 in 1 slope. Mr Breene produced a series of cross- sections with assistance of information provided by Messrs Laing and Thomson showing the design profile of the northbound carriageway, the natural ground surface level, together with the primary and secondary batters. It is Mr Breene's view, based on the information to which I have just referred and his inspection of the subject road, that the secondary batter plays no structural role in the northbound carriageway. He observed on the ground that much of the material in the secondary batter comprises building gravels and the like. One possible explanation for these materials being in the vicinity of the north-eastern sector of the resumed land is that it was there that Mr Marshall's original access from the Bruce Highway onto his land was located. Mr Breene's view of the material might be summarised in this quotation:
"I wasn't surprised to see it there because a lot of disturbance takes place within the road reserve during construction and materials are being moved about by machine operators without direction a lot of the time and for reasons that suit them at the time so it is not surprising to find that the material that's there is not the natural material, that it has just been placed there as part of finishing off the job and graded out because it was there.
BY MR JONES: (for the respondent) When you say 'graded out because it was there', what do you mean by that? Does the grading have any structural or engineering significance, or is it a --- ?-- Cosmetic, purely cosmetic - to give the job a neat appearance at the end of the job as these areas are graded off and the whole job made to look finished."
Mr Breene arrived at his conclusion based on the design profile to which I have referred, the work of the two surveyors and his own observations made on the ground. He did not speak with the original contractor, nor did he make further detailed reference to the specifications involved in the road construction. He was criticised in that regard from the claimant's side, however, the claimant did not call an engineer to offer an explanation which might differ from that put forward by Mr Breene. It follows, having regard to the evidence concerning the secondary batter to which I have referred thus far, that I accept Mr Breene's evidence and that on the same reasoning that I applied to the rock spill, I cannot find that the secondary embankment is a part of that structure of the road which, on the basis that I am proceeding, caused flooding on Mr Marshall's land in February 1992. The surplus material may be readily distinguished from the primary batter and, in a practical sense, may be dealt with separately from that primary batter. It cannot, in my view, be said that damage which flows from this surplus material put in place "to give the job a neat appearance" is a cause of the flooding. That cause is the quite separate carriageway embankment which comprises the primary batter to its full height, together with the culverts and bridge.
Having said this, I must say that I have approached this question on the basis of the evidence as presented. The question of the location and extent of the primary batter was the issue which comprised the focus of debate between the parties. As I understand the surveying evidence, it is the point at which the primary batter stops and the secondary batter starts that was seen by the parties to have been the critical point, putting aside Mr Baker's evidence that there is a single batter along part of the road construction. That primary batter as I have said is located within the pre-existing road reserve. What is not clear to me on my understanding of the surveying evidence and Mr Breene's evidence both oral and documentary, is whether a line of projection along the primary batter would reach a point on the natural surface level inside the eastern boundary of the resumed land. In other words, is any part of the pre-existing natural surface level in the resumed land supplying a support to the primary batter? It may be that the question I raise is quite irrelevant, however, given that the matter has troubled me for some time, I thought it only fair that I express my concern.
Counsel for the claimant raised another prospect which he submitted as being an alternative basis for applying the Edwards' principle and sourcing the claim for injurious affection. There was evidence in the form of a number of internal Main Roads Department memoranda and the minutes of a meeting which included officers of the Main Roads Department and the claimant which reveal both a concern from the Department's perspective about the need to provide adequate drainage under the upgraded highway and, as part of this, to ensure that adequate drainage was provided between the post-resumption boundary of Mr Marshall's land and the roadway embankment. There was little in these documents indicating just how drainage in this last mentioned area should be constructed, however, I understand Mr Breene to have generally agreed with the proposition that drainage would take place in that area in a north/south direction. Counsel for the claimant put the proposition and as far as I can see from the evidence, it came solely from the Bar table, that some smoothing out, and therefore the creation of the secondary batter, would be desirable as part of ensuring that drainage in this area was provided for. I think, from my understanding of the memoranda tendered, from Mr Breene's response and from the view of the resumed land that it is probably the case that some improvement of the drainage capacities along the resumed strip did take place. I will take that further and say that it may well have been the case that during the construction activities involved in the improvement of that drainage that material was deposited creating the secondary bank and that material and that bank is clearly on the resumed land. I do not see, however, that such a conclusion would take the case for the claimant forward. Whilst it was not put this way from the claimant's side: an argument which suggests that the primary batter therefore extends onto the resumed land would be wrong because it is really the case that the secondary batter was constructed in such a way as to extend onto the previous road reserve. If it was the case that an extension of works on the resumed land onto the road reserve was by itself a relevant part of meeting the Edwards' test, then a claimant who had a road embankment constructed partly on the resumed land and partly on an original road or railway reserve, would be able to claim injurious affection with respect to nuisances emanating from the road surface or the railway line. Clearly, this is not supported in the cases (see, for example, Somerville).
The claimant's submission on this point was that the drainage is as much a part of the road as the bitumen surface, as it provides a necessary link into the culverts under the road. Counsel for the claimant, submitted that the drainage design discussed in the memoranda referred to above was intended to be effected on the land taken and, in that context, the land taken was an integral part of the road construction and therefore should not be considered separately from the overall construction of the northbound carriageway. It was further submitted that, in the absence of the land of the claimant which was compulsorily acquired, the road could not have been constructed in accordance with the respondent's plans.
My comment on this last mentioned point would be that it would almost invariably be the case that construction of a project of works necessarily involved the resumption of certain land for the purposes of the project. Indeed, if the rule were drawn so wide as to allow injurious affection claims in circumstances such as this, then many of the decided cases to which I have referred would have produced different results.
Of greater substance was the submission that the drainage on the resumed land is an integral part of the road upgrading project. My view of this issue is that the inquiry which must be undertaken is not to ask whether, in an engineering sense, one part of the project is connected with or dependent upon another part, but is to ask whether it is possible in a practical sense to separate the works carried out on the resumed land from those which cause the nuisance complained of. If it is the case that Mr Marshall's land was resumed to provide drainage along the outside of the highway, then it is quite separate in a practical sense from that part of the highway which causes the flooding. The drainage on the resumed land would be concerned with shifting water to avoid flooding. It is quite unconnected with the cause of flooding which includes the carriageway embankment, together with the culverts and bridge opening within that embankment which together generate the net effect of inundation of Mr Marshall's land. It cannot be said that what might be described as a table drain designed to move water from one place to another is part of the cause of flooding on the land.
9 July 1996 A letter from the Crown Solicitor requests the amended claim by 11 July 1996.
18 June 1996 Court Notice issued advising of hearing on 19 August 1996 at
Brisbane.25 July 1996 Crown Solicitor advises Court that no amended claim has been
received.26 July 1996 Letter from claimant's solicitors to Crown Solicitor raising a
number of matters:
•
that a conference be held between the parties prior to the hearing in an attempt to agree upon quantities in relation to the claim;
•
that the Crown Solicitor confirm its agreement that it will consent to a change of venue from Maroochydore to Brisbane;
•
that the respondent will consent to an inspection of the property at the outset of the hearing;
•
that there would be an exchange of reports prior to the hearing;
•
that the respondent supply copies of the previously requested flood studies, namely the "Eudlo Creek Flood Study" commissioned by the respondent with Connell Wagner in November 1989 and the "Eudlo Creek Flood Study - Township of Eudlo to Bruce Highway" commissioned by Maroochy Shire Council with Connell Wagner in March 1991;
•
that the respondent consent to the issue of subpoenas in relation to these flood studies and other witnesses that may be necessary;
•
that the claimant's amended claim be delivered prior to the hearing at a date to be agreed.
29 July 1996 Directions Hearing. The Court issued draft minutes of order. 2 August 1996
Letter from claimant's solicitors to Crown Solicitor and to the Court advising of changes to the draft minutes of order as agreed between the parties and requesting the Crown Solicitor to produce the two abovementioned flood studies.
5 August 1996 Court Order issues:
• the Order of 7 September 1995 is vacated; •
by 7 August 1996 claimant to furnish statement of substance regarding the claim.
• by 9 August 1996 claimant to file amended claim; • by 12 August 1996 parties to exchange expert reports; •
by 16 August 1996 parties to file an agreed statement of law and fact;
• the hearing to be in Brisbane; 7 August 1996 Letter from the claimant's solicitors to the Crown Solicitor
requesting the Eudlo Creek Flood Study Reports:
"*
the Eudlo Creek Flood Study commissioned by your client with Connell Wagner in November 1989; and
*
the Eudlo Creek Flood Study - Township of Eudlo to Bruce Highway commissioned by Maroochy Shire Council with Connell Wagner in March 1991."
9 August 1996
Letter from Crown Solicitor to claimant's solicitors enclosing Eudlo Creek Flood Study - Township of Eudlo to Bruce Highway dated March 1991 and Eudlo Creek Flood Study dated January 1990.
12 August 1996
Letter from Crown Solicitor to claimant's solicitors advising that the Crown has not received the claimant's further and better particulars.
13 August 1996
The Crown Solicitor advises the Court that the claimant has not provided further and better particulars nor an amended claim. Requests that the matter be mentioned.
15 August 1996
Claimant's solicitors lodge an amended statement of Claim for Compensation setting forth with particularity the items claimed but excluding the specific amounts claimed.
15 August 1996 Matter mentioned before the President. 16 August 1996
Claimant's solicitors advise the Court that it would be unlikely that an amended claim and expert reports would be available on 19 August 1996.
19 August 1996 Hearing date. Claimant not ready to proceed and asks for
adjournment. Adjourned granted.22 August 1996 Opening of claimant's case and view of the resumed land and the
Marshall land taken.23 August 1996 Subpoena issued to the Director-General, Queensland Transport, to
produce:
(a)
"Eudlo flooding at the Bruce Highway Hydraulic Investigation", Connell Wagner (Qld) Pty Ltd, August 1993; and
(b)
the hydraulic analysis of the duplication of the Bruce Highway carried out by Department of Main Roads (DMR) in relation to the 1989 upgrade.
26 August 1996 Hearing of evidence commences.
In Star v. Inglewood Shire Council the respondent submitted that compensation should carry interest for a limited period only as the matter was brought before the Court on a reference by the constructing authority some years after the resumption. This submission was accepted by the Court and interest was limited to "the period beginning on the date one year previous to the date of lodgment of the claim in Court". The case of Merchin v. The Commissioner of Main Roads was, on this aspect of interest, a little more complicated in that there were accommodation works that needed to be discussed and agreed upon before a final claim could be lodged. The Court held, though, that once these works were agreed upon, further delays were not justified. Again, the constructing authority relied on s.25 of the Act and this was a matter that the Court took into account in reducing the interest payable.
The Land Appeal Court had the matter of interest to consider in White v. Brisbane City Council (1975) 2 QLCR 359. In this case "the claimant himself lay by and refused to pursue his statutory right to claim and eventually the respondent had the matter referred to the Court" (at p.367). Reference was made to White in Ogle v. Director-General, Department of Transport (1992) 14 QLCR 197 and to Star and Merchin, as well as to Hardy v. Queensland Electricity Commission (1988) 12 QLCR 89 and Howard v. Commissioner of Main Roads (10 August 1989 unreported) and in reference to these the learned Member wrote (at 199), "The common thread in these cases is that the respondent should not be required to pay interest on compensation for a lengthy period where a claimant has been dilatory in pursuing his statutory rights to the claim". This is a statement of principle which I agree may be distilled from the authorities. The question in the instant case is then, "was the claimant dilatory?"
The matters raised in the claim before me did contain complexities, though none was so complex as to justify a delay of over 10 years in commencing a hearing. I cannot accept the argument that the claimant was awaiting the provision of the report on the respondent's flood investigations nor the other flood studies referred to in the correspondence for the completion of the claim. The request for the flood studies did not arise until after the 1992 flood had occurred and after the claimant's solicitors had advised the Crown Solicitor that a fresh and detailed claim for compensation would be provided: such advice being given on more than one occasion. It also appears that the claimant did not request specific studies other than the privileged study until July 1996, and that these requests and the subpoena changed with time.
Even though the prospect of flooding was mentioned in the original claim for compensation, I think that it is a matter of importance that it was not until February 1992 that Mr Marshall experienced flooding on his land, flooding that he attributed to the highway upgrade. Though it was his concern that the removal of the large box culverts would cause flooding on his land, the experience of the flooding was undoubtedly traumatic for him and would naturally have been a factor for consideration in a claim for compensation. Completion of the upgrading of the Bruce Highway at the frontage of Mr Marshall's land had been finalised in 1991. In my view the claim should have been formulated and the matter brought before the Court within one year of the date of the February 1992 flooding of Mr Marshall's land, that is, by 1 March 1993.
On the question of the requested flood studies, I should add that there are procedures providing for the exchange of evidence, in addition to the usual subpoena process which might be availed of by parties in this jurisdiction - admittedly, a jurisdiction all but devoid of other sophisticated interlocutory procedures. Indeed, it was finally the subpoena process which produced to the claimant two flood studies which were of interest to him.
It is correct to say that the constructing authority has the power to have a matter brought to Court pursuant to ss. 24 and 25 of the Act, but it needs to be noticed also that the constructing authority has no power to have a hearing commence. It is the case, of course, that this Court will not, except in the most extreme circumstances, commence hearing a matter unless and until the parties consent to that.
It is my conclusion that the claimant has been dilatory in pursuing his claim and that it would not be just for the constructing authority to be required to pay interest for the full period for which it would otherwise be responsible. I am also of the view that the claimant should not suffer a loss of interest for that period between the commencement of hearing of evidence and the date of payment of the balance of compensation due.
I order that the respondent pay the claimant interest at the rate of 10.5% per annum as follows: $3,246 for legal and valuation fees in respect of which there is no evidence of the date of payment) from 1 February 1986 up to and including 10 September 1987 (the date of advance); then on the amount of $317,100 up to and including 1 March 1993; then on this amount from 26 August 1996 up to and including the date upon which final payment of compensation is made.
RP SCOTT
MEMBER OF THE LAND COURT
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