Nicol v Director General, Department of Transport
[1992] QLC 48
•25 November 1992
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BRISBANE.
25th November, 1992.
Re: Claim for Compensation - Resumption for Road
Purposes. A92-29 - Town of Cloncurry.
J and DM Nicol
v.
Director General, Department of Transport
(Hearing at Cloncurry)
J U D G M E N T
The Department of Transport has decided to construct a diversion of the existing Flinders Highway through Cloncurry. The diversion commences at the Ramsay Street/Henry Street intersection then proceeds in a direction north of west to new bridgeworks over the Anabranch of the Cloncurry River and the Cloncurry River itself before extending further westerly towards Mt Isa. Resumptions have been necessitated of land at the rear or southern end of properties fronting Daintree Street in the locality westerly of Sutherland Street. These properties fronted the Daintree Street section of the existing Highway and the roadworks scheme will have the effect of relocating all but local traffic from this section of the Daintree Street carriageway to the new road at the rear of the properties.
The owners of two properties who had been unable to reach agreement with the Department had their claims for compensation brought before a sittings of the Land Court in Cloncurry. Their claims had been prepared by the same legal firm and those claims were based on assessments prepared by the one valuer. The matter first to be heard related to property owned by DG and KM Beames (Reference A92-30) and the determination of compensation in that matter is also published today. As the evidence in both matters generally overlapped it is suggested that the decisions be read together.
As in the Beames' matter, the subject land (which is located two surveyed lots to the west), was taken by the then Commissioner of Main Roads by proclamation published in the Government Gazette dated 15th September, 1990. It is described as:"County of Beaconsfield, parish of Cloncurry - An area of about 781 m2 being part of Lot 26 on Plan No. C19622 contained in Certificate of Title Volume N1125, Folio 173."
The registered proprietors, and claimants in this matter are John Nicol and Daphne Maureen Nicol as joint tenants. The land subject of the resumption, is zoned Residential A and had frontage of 20.115 metres to Daintree Street as its northern boundary and then the unformed Scarr Street as its southern boundary, the depth from north to south being 100.58 metres. A modern low-set dwelling is sited towards the centre of the allotment. The resumption line runs from a point approximately 34.5 metres northerly of the Scarr Street frontage on the eastern boundary to approximately 40.5 metres from the Scarr Street alignment on the western boundary.
A claim for compensation dated 28th December, 1990 was as follows:
Refer Valuation Report 19.4.90 Collins &
Eales Consultant Valuers $41,600
Valuation fees 1,200
Legal fees to be advised
At the hearing, Mr Fellows, the claimants' solicitor, sought and was granted leave to amend the claim as follows:
1.Loss of land severance and injurious affection $18,500
2.Valuation fees 2,000
3. Legal fees 750
The Court was advised that agreement had been reached between the parties in respect of an amount of $2,000 in total for legal and valuation fees and that amount will be awarded.
Mr B J Duncan, registered valuer, who had earlier given evidence in the Beames matter described the resumed land as comprising a combination of level and broken land. The balance area is then described as a level homesite above the level of Daintree Street. Mr Duncan said the dwelling on the site was about five years old at the date of resumption, was of low-set design on 600 mm steel piers, hardwood frame, flat fibrous cement external walls with aluminium framed glazing and corrugated iron roof. Accommodation provided comprised three bedrooms, lounge, dining, kitchen, bathroom and toilet and laundry. In the rear (south-western corner) of the structure is a covered and ceiled patio, while to the Daintree Street aspect, the roof line extends as an unceiled carport. Some finishing-off work remained to be completed at the date of resumption. Towards the Daintree Street frontage is a steel and timber framed shed.
Mr Duncan refers to an encroachment on the land by an adjoining dwelling which will need to be corrected by resurvey, but there is no argument between the parties as to that matter affecting the quantum of compensation. Mr Duncan has however valued the property on the assumption that the resurvey has been effected, by the adoption of a reduced site area. Before the resumption, Mr Duncan values the property as follows:
Land $ 1,500
Improvements - Dwelling $48,535
Shed 2,800
Ground Improvements 800 52,135
Total $53,635
Adopt $53,500
In considering the value of the property after the resumption, Mr Duncan comments that the dwelling had been sited as far as practicable to the rear of the original site, being about 40 metres from the Daintree Street frontage and 54 metres from the centre line of the existing Highway. The dwelling is said to be buffered from the street by the shed and a car parking area. Mr Duncan estimated that the new road boundary would be 8.5 metres to 11 metres from the southern wall of the dwelling. He had calculated the centre line of the new Highway to be 30 to 32 metres distant (in fact, about 29 metres, based on later evidence). He understood the new road level would be about 2 metres above the existing ground level. The works to be constructed on the land resumed include the "supporting embankment, road shoulder and the pavement of east and west bound lanes of the new road." Mr Duncan's report referred to a "ramp" exit from the "T" intersection of the new highway and the Isley Street heavy vehicle by-pass to the west of the property being "some 4.0 metres to 6.0 metres above existing ground surface level." His report contains the following:
"The closed in effect of the highway and proposed exit ramps remove the appeal of the existing bush setting, negate the siting, design and floor plan of the dwelling and detrimentally influence the owners quiet enjoyment of the property, privacy and options for future extensions."
His verbal evidence was that he had made no allowance for matters associated with the "T" intersection to the west and agreed that any noise element from the by-pass intersection would have existed prior to the resumption. His evidence was that he was not convinced that there would be any reduction in traffic noise from Daintree Street "as local traffic may utilize Daintree Street via Isley Street as the preferred access to the Highway."
Mr Duncan assessed the diminution in value caused to the dwelling as being 35% of its "before" resumption value. His verbal evidence indicated that, included in such diminution in value, was the perceived deleterious effect of the potential nuisance caused by actual construction works which he saw taking place over a three year period. His report contained the following - "due to the nature of road construction it is difficult to determine the exact time frame of construction works on lands acquired from the owner. Embankments because of the supporting function are considered to be an integral and inseparable part of the road section."
His verbal evidence was that he would apportion the assessed diminution in value to the dwelling as follows:"Approximately 15% would be related to the damages and disturbance during the road construction and 20% relates to the effect of the road as it is completed."
His after resumption valuation was as follows:
Land $ 500
Improvements:
Before Valuation $52,000
Less diminution in value:
Dwelling $16,975
Other 250 $17,225 $34,775
Land and Improvements $35,275
Adopt: $35,000
His assessment of compensation becomes:
Before Valuation $53,500
After Valuation $35,000
Diminution in Value $18,500
As in the Beames' matter, Mr Duncans' "after" valuation was criticised by the respondent's Counsel as being too low, particularly in comparison with sales such as those of the inferior original "Mary Kathleen" houses in the price range of $35,000.
Again as in the Beames' matter the argument here is not the "before" valuation of the claimants' property, because the respondent's valuation as tendered to the Court through Mr W B Bowen, registered valuer, was in the higher amount of $54,500. This was made up as follows:Land $ 1,600
Improvements:
Dwelling $ 49,000
Shed $ 2,700
Fencing $ 180
Lawns etc $ 1,000
Adopt $53,000
Total - Land and Improvements $54,600
Adopt $54,500
Mr Bowen's "after resumption" valuation was however not as pessimistic as that of Mr Duncan. He found a value of $46,500, apportioned as:
Land $ 1,000
Improvements:
Dwelling (15% Diminution) $41,650
Shed 2,700
Fencing 180
Lawns etc $ 1,000
$45,530
Adopt $45,500
$46,500
His assessment of compensation was therefore:
Valuation before $54,500
Valuation after $46,500
Compensation $ 8,000
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Criticism was again (as in the Beames matter) levelled at his written description of injurious affection resulting from the work on the resumed land as being "negligible". He agreed that such wording was of poor choice. The evidence is that Mr Bowen had reviewed his original assessment, increasing the diminution in value from 10% to 15%. The factual situation is that he has found injurious affection of some significance. Although his written report again suggests that "a minor allowance should be made for disturbance during the construction phase", his verbal evidence was that Section 20(2) of the Acquisition of Land Act did not provide for disturbance as being a statutory head of claim. He had therefore made no allowance for "disturbance" during the construction period in his assessment.
Both valuers used the same sales evidence as in the Beames' matter. That evidence is not repeated here in its totality. Mr Bowen had taken some comfort in his "before" resumption valuation from the sale of the dwelling at No. 5 Station Street. This residential property sold some five months after the relevant date, on 27th February, 1991 for $55,000. Mr Bowen had said he was confident there had been no increase in value for residential property in Cloncurry in the period from the date of resumption to the date of sale. He saw this property capable of direct comparison with the subject in the "before" resumption situation. His "after" resumption valuation was supported, in his opinion, by the general level of value indicated by sales of inferior residential property. He referred in particular to the sales of dwellings at 21 Ramsay Street for $49,000 and 24 Short Street for $45,000, both of which properties he saw as being inferior to the subject property in its "after" resumption situation. He was questioned at length as to the sale of the dwelling at 109 Uhr Street for $40,000 on 23.10.90 and its comparison with the subject property. Mr Bowen had not had the opportunity to inspect this dwelling internally but he was somewhat critical of the internal design of some of the original older style homes, such as was this sale property. He agreed that the proximity of this dwelling to a railway line might have had some effect on the sale price. He thought the close proximity of the railway goods yard had provided a more noticeable effect in another sale, being of the dwelling situated at 55 Uhr Street for $32,000. Nevertheless, he saw both of the structures in the latter two sales as being significantly inferior in quality to the subject dwelling, after the resumption.
Mr Ollason, the Department of Transport Engineer and District Manager at Cloncurry also gave evidence in this matter. He said that the embankment opposite the Nicols' dwelling was of relatively low profile, being 250 mm to 500 mm in height. A plan had been tendered by Mr Smith, Counsel for the respondent, earlier in the hearing which indicated that ground level on the southern wall of the dwelling would be 480 mm below the centre line of the new road. The floor level of the dwelling was indicated as being 420 mm above the road centre line level. This plan shows the centre line of the new highway to be approximately 29 metres from the southern wall, while the northern wall of the dwelling is approximately 54 metres from the centre line of the existing highway on Daintree Street. Mr Ollason agreed that the embankment for the new road works will be higher above natural ground to the west of the subject property and the evidence in the Beames' case was that it rises again (above natural ground) to the east. Mr Ollason confirmed that while the road corridor was capable of accommodating a four lane construction, there was virtually no possibility of the traffic increasing in the foreseeable future to a volume which would warrant such construction.
The matters of contention which need to be decided are valuation issues. I will adopt Mr Bowen's valuation of the property "before" resumption which is in the amount of $54,500. It seems to me that Mr Bowen has taken the reasonable approach of using the evidence of the sale of the dwelling at No. 5 Station Street, which, while later in time, is of property generally similar to the subject dwelling and in a market where values are said by Mr Bowen to have remained relatively static.
Compensation is to be assessed as at the date of resumption and as I have found in the Beames' case it is not an unreasonable assumption that a prudent well-informed purchaser would expect the potential for some nuisance during the actual construction period, despite any abatement measures required of the contractor. Mr Bowen recognises this possibility, but he sees it properly described as disturbance, and interprets the Acquisition of Land Act as containing no statutory provision for such heading of claim. It seems to me that, if there was such effect in the market place, it could reasonably be recognised as "injurious affection" to the remaining property of the claimant. Regardless of its title, and as the Land Appeal Court said in The Crown v. RH and JM Corbould (1986-87) 12 QLCR at p 57:"In addition to this it may be observed that it is immaterial that a category of the claim, e.g. disturbance, may from time to time overlap, even sometimes completely, other heads of compensation provided that the claimant is properly compensated for his loss according to law and providing there is no duplication. The point is that a justifiable area of compensation does not go wanting for lack of a precise classification and disturbance is often a suitable description."
The evidence is that while the construction phase of the total project will extend over a fairly lengthy period the actual work on the resumed land will be of relatively short duration. Even with those activities seen by Mr Duncan, as an integral and inseparable part of the works on other acquired lands (see again The Crown v. Corbould supra at p 57), the construction time in the general vicinity is still of relatively short duration and in intermittent periods.
There is no evidence before the Court to indicate the extent to which the market may recognise the potential for such specific nuisance. I agree with the submission by the respondent however that the level to which Mr Duncan reduced the value of the dwelling to include such temporary nuisance is unrealistic when the sale prices of permanently inferior dwellings are considered. It seems to me that the injurious affection is caused by temporary nuisance phasing into a permanent nuisance and it is the totality of the activities which causes the damage to the remaining lands.
The verbal evidence of Mr Bowen indicates to me that he has consciously used the sales evidence of residential property in arriving at his "after" resumption valuation. Although pointing out in his written report that some allowance was warranted for the potential "disturbance" during the construction phase, for the reasons discussed, his assessment did not include any such allowance. In the end result, I will adopt an "after" resumption value of $46,000 for the subject property.
Compensation is then calculated as follows:Value before resumption $54,500
Value after resumption $46,000
Compensation - severance and injurious affection $ 8,500
Legal and valuation fees - as agreed $ 2,000
Total $10,500
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I am informed that no advance against compensation has been paid by the respondent. I am also informed that an account for valuation fees in the sum of $1,200 was paid by the claimants on 1st February, 1991.
For the reasons given, compensation under all headings for the taking of the land as described is awarded in the sum of $10,500. It is ordered that interest at the rate of 11% per annum be paid on the amount of $8,500 from and including the date of resumption up to and including 1st February, 1991, on which date the amount of $1,200 was paid by the claimants for valuation fees, then on the sum of $9,700 from 1st February, 1991 up to and including the day immediately preceding the date the award of compensation is paid.
(R.E. Wenck)
Member of the Land Court.
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