Osborne v Council of the Shire of Redland
[1990] QLC 10
•6 April 1990
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BRISBANE
6th April, 1990
Re: Claim for Compensation -
Resumption for Park and Recreation
purposes -
A89-64.
Robin John Osborne and Sue Osborne
v.
Council of the Shire of Redland
J U D G M E N T
By Proclamation published in the Government Gazette of 19th December, 1987, the Council of the Shire of Redland resumed as from that date for Park and Recreation purposes, Lot 254 on RP 30597, county Stanley, parish Redland, containing an area of 25 perches and being the whole of the land contained in Certificate of Title, Volume 4629, Folio 223. The claimants are the registered proprietors of the fee simple. The land is situated in Junee Street, Point Talburpin, and has a frontage to Torquay Creek on its northern and eastern boundaries. It lies at the northern end of a pocket or peninsula of land taking up the centre of the horseshoe formed by Torquay Creek as it swings from west to north and thence to the south-east to Moreton Bay. Lots 247 to the subject lot generally fill the pocket. The lots are of lowlying land with levels ranging around about 2.29 at the northern frontage of the subject lot to 2.61 on the southern frontage of Lot 247. They all have a frontage to Junee Street on the west and Torquay Creek at the rear. The lots were inundated in the 1974 flood. In or about 1980, the Respondent Local Authority plotted the course and extent of the 1974 flood and these plans which were updated as years went by, formed the basis of the decision making process of permitting or forbidding development in the area for dwelling house purposes. The claimants purchased the land in 1982 for a consideration of $12,500 in a vacant state. They bought the land with the intention of living on it. They were advised through their solicitors on a rate search that the Local Authority "does not hold any complete record of flood levels or drainage problem areas and it is therefore suggested that you obtain advice from a consultant engineer in relation to this matter". It is accepted that the noting is a standard one. Nevertheless, nothing was done about it by the claimants and Mr Osborne admitted that he made no inquiries himself with the Council. In 1983, the claimants lodged an application to build a lowset dwelling house on the site. The application was refused under the powers vested in the Council by s. 37 (10) of the Local Government Act which forbids the erection of a dwelling house on land which in the opinion of the Local Authority is not capable of being drained. Minutes of the meeting of Council dealing with the application say -
"A report from the Building Engineer was submitted and read. Filling of the subject allotment to render it suitable for the erection of a dwelling house would accentuate flooding problems affecting other properties and public lands and would contravene the provisions of the Shire of Redland Town Planning Scheme if carried out without the consent of Council. "
The recommendation that the application be refused under s. 37(10) was followed with the words -
"and further, consent of Council, in accordance with the provisions of the Town Planning Scheme, has not been obtained for filling to be carried out on the subject property."
No further application was made by the claimants and the land remained in a vacant state when resumed in 1987. Lots 247 to 253 were also resumed for the same purpose. At that date the land was zoned "Rural" but a new Town Plan had been on display for three (3) months from 16th December, 1986, under which the subject land was included in a "Service Problem" zone. The Plan went before the Minister for approval in that form. When the Plan became law on 20th February, 1988, the subject land was zoned "Drainage Problem" and the "Service Problem" zone dropped from the Plan entirely. Land that is included in a "Drainage Problem" zone is subject to Council consent for development purposes. The zoning is a reflection in planning form of the provisions contained in s. 37(10). The statement of intent reads as follows -
"This zone comprises land which is subject to drainage problems or which would appear to be subject to drainage problems. The development of such land is not generally envisaged, however, detailed investigations might reveal that certain parts of the zone, which will most likely be located on its periphery, are suitable for development and there may be other parts of the zone, which will almost certainly be very limited in extent, which are capable of being filled without any adverse effect on other land. To take account of these situations there is provision for the Council to consent to the erection of dwelling houses and to certain other uses but it is not envisaged that it will be appropriate to grant such consent in many cases. "
The amount finally claimed in the proceedings is in the sum of $14,000, being $13,000 for land and $1,000 for matters compensable under the heading of disturbance. The latter sum is agreed.
Mr K.P. Walsh, registered valuer, gave evidence in support of the claim for land. Mr A.R. Kirby, registered valuer in the employ of the Valuer-General, valued the land on behalf of the Respondent. Crucial in their exercises are the matters just discussed. Mr Walsh took the view that a hypothetical prudent purchaser of the lot at the relevant date would look upon the block as having a highest and best use for a high-set dwelling and that he would have a reasonable expectation of obtaining approval for that use. He accordingly valued the land up to the market in the area without discounting. A reasonable indication of this market at the relevant date and its application to the subject land by Mr Walsh is served in the sale of Lot 82 at 12 Mark Street which lies to the west of Junee Street and at about RL 6/7 which sold in November, 1987, in a vacant state for $12,500. The said land is zoned "Residential A", has no flooding problems and is viewed as being about equal in value with Lot 254 on the reasoning that any inferiority in value of the subject land because of its lowlying nature is counterbalanced by its location and aspect over Torquay Creek. Mr Kirby took the view that the construction of a dwelling house on the subject land would not be permitted and that the highest and best use of the lot was for amalgamation and sale to an adjoining owner. His assessment on this basis is in the sum of $3,100. Were he to value the land on the assumption that consent could be obtained he would value it at $11,800. If this approach was taken he agreed that the sale of 12 Mark Street would constitute the best evidence of value. On the assumption that the hypothetical prudent purchaser gave himself some chance of obtaining approval to the erection of a high-set dwelling house on the lot, he said that he would value the land at $6,500. It is necessary then to say something more about the area and the approach taken in the case for the claimants.
Evidence was given by Surveyor D.L. Park of levels in this part of Junee Street; in the area of Junee Street to the south-east from Lot 246 towards the mouth of Torquay Creek and levels in Pear Street which is situated to the south of Point Talburpin. Generally speaking, the levels are of similar order. Dwelling houses (low-set and high-set) have been permitted on lots in Junee Street from Lot 246 and in Pear Street. On the assumption that levels were the determining factor, it is reasonable to argue and it is argued that there is every chance that approval could be got to the erection of a high-set dwelling house on the subject land and so follows the opinion and valuation of Mr Walsh. However, the issue is not one of levels simpliciter but of levels in relation to flooding and proper planning. Junee Street at the date of resumption from Lot 246 northerly could be described as a grassed formed earth strip. Reticulated water, electricity and telephone services were available but were some distance from the subject land. The material collected by the Local Authority on the 1974 flood shows that this part of Junee Street was flooded and that the flood reached a level of about 2.7 metres over the subject lot and the others resumed. The plans of the extent of the flood has been used by the Council since its inception as a guide in dealing with building applications in the area. An application to construct a low-set dwelling on the subject lot was refused in 1983 on the grounds that the land could not be drained. The argument against consent is that development would have an effect on flood levels and hence on the flooding of other properties. Mr D.V. Yardley, Subdivisions Engineer with the Respondent/Council and formerly a consultant to the Council through the firm, John Wilson and Partners, said that the view of the Council is that dwellings should not be erected on any land lying below the 1 : 50 year flood level and that this is enshrined in the Town Plan. On the calculations done by the Council, the 1974 flood was taken as a 1 : 50 year event. Studies done subsequent to the resumption are to the effect that a flood of this nature over the catchment of Torquay Creek has a frequency of more like 1 : 10. In his opinion a septic system would not work on the subject land because of the low-lying nature and he could see no distinction on the flooding effects between a high-set or low-set dwelling. He said that prior to the Town Plan being prepared or finalised there was a proposal from the Local Government Department that allowed Council to create a "Service Problem" zone. He said that Council believed that this was an appropriate location for the zone as the land was flood prone and that it was carried forward into the Plan but that on review of the Plan, the Department said that the zone was inappropriate and agreed to a "Drainage Problem" zone being created over it. Calculations made by the Council of the extent of the area affected by flooding shows that the periphery of the affected area is at or about Lot 246 - in other words, a flood of the order spoken about essentially crosses land within the horseshoe. In the considerations of Mr Yardley on the undesirability of permitting development of the area for dwelling house purposes is the consideration that access to the lots would also be flooded. He said that land in Pear Street is adjoining the sea and that filling of the area would not affect other property whereas the subject land is affected by the sea and by flooding in the creek. The Plan which was on display prior to resumption became law in 1988. At the date of resumption the change made to the Plan by the Department would not have been known to a prospective purchaser of the lot. He would, however, on making reasonable inquiries have ascertained that the land had been flooded and that an application to construct a dwelling had been refused and the reasons given for the refusal. He would realise that the lot is not on the periphery of the flood plain and on seeking advices from engineers expert in hydrology would most likely have received the opinion expressed in the statement of intent. He would know that if the proposed zoning had become law, consent to the erection of a dwelling would have been required. I am also of the opinion on a review of the evidence that the hypothetical prudent purchaser would see merit in the course of action taken by the Council. In P.H. and F.E. Murray v. Council of the Shire of Redland (A89-1) (1st September, 1989), the learned Member found that a hypothetical prudent purchaser of Lots 247 and 248 would not rate his chances of gaining filling and building approval as zero. Lots 247 and 248 are at the southern end of the pocket and nearer the periphery of the affected area. Mr Kirby made an assessment of compensation on behalf of the respondent in the Murray case. He has taken the same approach to the assessment in this instance by valuing the land as best suited for purchase by nearby owners for grazing or some other passive use consistent with no structural development. Compensation for the taking of Lots 246 and 247 was determined by the learned Member at a sum representing 50 percent (50%) of the unfettered fee simple value. He came to that conclusion on grounds with which I agree that in assessing compensation on compulsory acquisition, doubts should be resolved in favour of the dispossessed owners. Justice will in my opinion be served if an approach consistent with that is taken here. I therefore adopt the sum of $6,500 as compensation for land being the only opinion before the Court of the value of the lot to a purchaser who gave himself some chance of obtaining approval to a development.
Accordingly, compensation for the taking is determined in the sum of Seven thousand five hundred dollars ($7,500). I order that interest be paid on the sum at the rate of 12.75 percentum (12.75%) per annum from and including the date of resumption up to and including the day immediately preceding the date the sum is paid.
Member of the Land Court
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