Pajares v State of Queensland
[2003] QLC 45
•23 June 2003
LAND COURT OF QUEENSLAND
CITATION: Pajares v State of Queensland [2003] QLC 45 PARTIES: Luis James Pajares
(claimant)v. State of Queensland
(respondent)FILE NO: A2001/0690 DIVISION: Land Court of Queensland PROCEEDING: Claims for compensation consequent upon the making of four interim conservation orders in respect of part of Lot 122 on Plan CWL2291, Parish of Tyson, under Section 108 of the Nature Conservation Act 1992 DELIVERED ON: 23 June 2003 DELIVERED AT: Brisbane HEARD AT: Townsville MEMBER Mr JJ Trickett, President ORDERS: 1. Compensation in respect of the interim conservation orders made on 9 November 1998 and 9 April 1999 is determined at Twenty Thousand Dollars ($20,000).
2. The application to extend the time for the making of claims for compensation in respect of the interim conservation orders dated 17 December 1997 and 3 September 1999 is refused
CATCHWORDS: Compensation for making of interim conservation orders - Effect of the making of those orders - Loss to the claimant - Effect on claimant's development program - Reason for compensation
Procedure - Application to extend the period for the making of claims for compensation - Special circumstances in relation to failure to make claims in time - Special circumstances did not warrant an extension of time
Statutes - Nature Conservation Act 1992.
APPEARANCES: Mr CL Hughes SC and Mr RM Needham for the claimant
Mr DR Gore QC and Mr RS Jones for the respondentSOLICITORS: Suthers Taylor, Lawyers, for the claimant
Crown Solicitor, Crown Law, for the respondent
This matter involves claims for compensation by Mr Luis James Pajares (the claimant) consequent upon the making of four interim conservation orders by the responsible Minister under the provisions of the Nature Conservation Act 1992. Claims for compensation in respect of two of the interim conservation orders were made in time but the claims in respect of the other two interim conservation orders were made outside the period for the making of such claims.
Background
At all relevant times, Mr Pajares was the owner of Lot 122 on Plan CWL2991 containing an area of 2,311 ha. The property is situated approximately 16 km south of Tully, in the lower reaches of the Murray River Flood Plain, which is subject to periodic inundation. The Murray River formed part of the western boundary and the whole of the southern and eastern boundaries. Near the most easterly point is the confluence of the Murray River and Bedford Creek, which formed the north-eastern boundary. In its natural state, the property comprised level to easily undulating coastal forest and scrub, parts of which are low lying, with areas of rainforest vine scrub fringing the Murray River. Towards the east, there is an area of low-lying tea-tree forest, swampy in parts, while areas of mangroves fringe the lower Bedford Creek and part of the eastern Murray River.
At the relevant date, the western part of the property was largely developed for sugar cane while the eastern part remained undeveloped. On 19 November 1999 an area of 1,248 ha was resumed by the State of Queensland for National Park purposes. A statement of reasons for the resumption by the Director-General of the Department of Environment and Heritage stated that the area is particularly significant for the maintenance or restoration of habitat of the endangered mahogany glider.
Mr Pajares gave evidence that the State Government started to show interest in his property in the early 1990's. Around about 1995 he was advised that the Government wanted to negotiate the purchase of part of the land to protect habitat for the mahogany glider. However, he did not want to sell any of his land because it was needed for future expansion of the family's agricultural and grazing enterprise.
On 19 June 1995 the Minister for Environment and Heritage made an interim conservation order (ICO) which covered that part of the land which was approximately the area which was eventually resumed. Mr Pajares said he was in the process of crashing timber on the land at that time. The order effectively prevented him from clearing any of his land affected by the order for the 60 day period that the order was in force.
According to Mr Pajares, after that ICO was made he was notified by the Department of Environment that the Government wanted to acquire part of his land. Negotiations were then commenced and Mr Pajares attended a number of meetings. During those negotiations he did not recommence clearing his land. By late 1997, when nothing had come of the negotiations, he recommenced clearing.
Then on 17 December 1997 a second ICO was issued over the same part of the property. That order expired in mid-March 1998, but by that time Mr Pajares had negotiated an agreement with the then Minister for the Environment, Mr Brian Littleproud, that approximately 650 ha of land would be resumed in accordance with a plan signed by Mr Pajares and the Minister and dated 3 March 1998. The plan covered the eastern part of the property, but the area was significantly smaller than the 1,248 ha eventually resumed. At the time of signing the plan, Mr Pajares understood that a binding agreement had been reached as to the area to be purchased.
According to Mr Pajares, on 2 November 1998 he and one of his sons started crashing timber with two bulldozers and a chain in the area that he was to retain under the agreement with Mr Littleproud. On 9 November 1998, after crashing for about a week, they were stopped by another ICO. Then on 9 April 1999 a further ICO was issued and a final ICO was issued on 3 November 1999. Those three orders effectively prevented Mr Pajares from developing the land up until part of the land was resumed on 19 November 1999. The area resumed was much larger than had been agreed with Mr Littleproud. Mr Pajares said that following a change of government, the Department had informed him that the agreement with Mr Littleproud was off and that negotiations would commence in respect of the larger area. Mr Pajares said that he felt that he had been unfairly treated in this matter.
Mr Pajares claimed that the ICOs were issued while he was progressively clearing his land and he had been advised on a number of occasions that the clearing activities were the cause of the orders being issued. He was therefore reluctant to implement his plans for development. As a result of the prohibition on clearing, he was prevented from even clearing regrowth on land that he had previously chained in 1993. It had been his practice to leave the areas that had been chained, while development was undertaken elsewhere. Because of the ICOs he had insufficient land to graze cattle, being forced to use pasture land to expand his sugar cane operations. However, Mr Pajares did not precisely identify the location of the area that had been crashed prior to the ICO of 9 November 1998.
The Legislation
Under the Nature Conservation Act 1992, if the Minister is of the opinion that rare or threatened wildlife, or the critical habitat of protected wildlife, or an area of major interest, or a protected area is subject to a threatening process that is likely to have significant detrimental effect on the wildlife, habitat or area, the Minister may make an ICO for the conservation, protection or management of the wildlife, habitat or area: s.102.
An ICO may provide for the prohibition or control of a threatening process and may be made in respect of land which is not habitat of such wildlife or land which is not within an area of major interest or a protected area: s.103. The Minister must give written notice of an ICO to all landowners of land to which it relates and to the relevant local authority: s.104. An ICO will have effect for up to 60 days, but may be extended by the Governor in Council for not more than 90 days: s.105.
Section 108 provides for reasonable compensation to be paid to an affected landowner:
"Section 108(1) A land-holder of land subject to an interim conservation order is entitled to be paid by the State such reasonable compensation because of the making of the order as is agreed between the State and the land-holder or, failing agreement, as is determined by the Land Court.
(2) A claim for compensation must -(a) be made in a form approved by the chief executive; and
(b)be made to the chief executive within six months after the making of the order or the longer period the chief executive or the Land Court in special circumstances allows."
The Interim Conservation Orders
The first ICO was issued on 19 June 1995 and remained in force for 60 days. No claim for compensation in respect of that ICO was made.
The second ICO was issued on 17 December 1997 for a period of 60 days. A claim for compensation for $305,000 was made on 4 May 1999, more than six months after the order was made.
The third ICO was issued on 9 November 1998 for a period of 60 days. That order was extended for a further 90 days. A claim for compensation for $105,000 was made on 4 May 1999, within the six months' period for a claim to be made.
The fourth ICO was issued on 9 April 1999 for 60 days. That order was extended for a further 90 days. A claim for compensation for $228,000 was made on 14 September 1999, within six months of the claim being made.
The fifth ICO was issued on 3 September 1999 for 60 days. That order was also extended for a further 90 days. A claim for compensation for $230,000 was made on 14 November 2001, more than six months after the order was made.
The four claims were referred to the Land Court by the solicitors for the claimant, Suthers Taylor, by way of originating application filed with the registrar on 16 November 2001. That application sought determination of compensation in respect of the ICO's dated 9 November 1998 and 9 April 1999. The application also requested the Court to extend the time for the making of claims for compensation in respect of the ICO's dated 17 December 1997 and 3 September 1999.
Before considering the claims for compensation, I will deal with the application for extension of time.
The Application for Extension of Time
Section 108(2)(b) provides that the Court may allow the extension of the period in which a claim for compensation can be made "in special circumstances". The claim in respect of the ICO made on 17 December 1997 was not made until 4 May 1999, almost 17 months after the prescribed time for making such a claim. Mr Pajares explained that he did not at that time make a claim for the making of that ICO as he had reached agreement with the then Minister, Mr Littleproud, as to what part of his land was to be taken. It did not occur to him that the Government would not honour that agreement.
The claim with respect to the ICO made on 3 September 1999 was not made until 14 November 2001, over 26 months after the prescribed time for making such a claim. Mr Pajares could offer no explanation as to why a claim was not made in time. He said that he had left these matters to his then solicitors.
While it could be argued that there were special circumstances in relation to the failure to make a claim in time in respect of the ICO made on 17 December 1997, it seems to me that it was not until the receipt of the ICO of 9 November 1998 that the claimant (or his solicitors) realised that the claim in respect of the earlier ICO had not been made. Claims in respect of both ICO's were made on 4 May 1999.
Section 108(1) provides that an affected landholder is entitled to reasonable compensation because of the making of the order. If any loss was suffered by the claimant, it was suffered regardless of the agreement with Mr Littleproud about the area to be acquired. The claimant should have pursued his claim at the time. In my view, it was simply too late to attempt to revive a claim for the earlier ICO.
I am of the view that there were no special circumstances warranting an extension of time in respect of either of the two claims for compensation which were made out of time. Therefore, the application in respect of those two ICO's is refused.
Compensation for the making of the Interim Conservation Orders
The claims in respect of the other two orders were made in time. Those claims as made were based on the income that was lost by the claimant by not being able to conduct cane farming operations on the land affected by the orders, calculated on a rate per tonne of sugar cane, plus legal, valuation and consultancy fees.
The land the subject of those two ICO's was approximately the area that was resumed. At the time the land was largely undeveloped. The evidence in the resumption case was to the effect that it would have been some years before any of the affected land was growing sugar cane. Therefore, the basis for those two claims was not substantiated.
The Claimant's Approach
However, Mr Eales, the valuer for the claimant, led evidence at the hearing for compensation of $110,000 on a different basis. He reasoned that with his own machinery the claimant could have easily cleared 200 ha per annum. However, taking a conservative approach, Mr Eales allowed for an area of 100 ha per annum to be crashed, windrowed and burnt on the affected land at a cost to the claimant of $30 per ha. Therefore, between 17 December 1997 (the date of the first ICO for which compensation was claimed) and 19 November 1999 (the date the subject land was resumed), the claimant could have crashed, windrowed and burnt an area of 200 ha.
In his valuation report for compensation for the land resumed, Mr Eales had assessed the value of land developed to that stage at $500 per ha. Therefore, he reasoned that the effect of the ICO's prevented the claimant from developing 200 ha at a cost to him of $30 per ha, for which he would have received $500 per ha in compensation, a loss of $470 per ha, say $450 per ha, or $90,000.
In addition, Mr Eales reasoned that an area of 80 ha had been crashed prior to the ICO of 17 December 1997. Because the ICO's prevented the claimant from treating suckers and regrowth, that timber treatment was only 50% effective at the date of resumption, resulting in a loss calculated by Mr Eales as 80 ha at $500 per ha (50% effective), or $20,000.
Therefore, Mr Eales assessed total compensation for the making of the ICO's at $110,000.
The Respondent's Approach
Mr Cross, the valuer who gave evidence on behalf of the respondent, took a very different view. He investigated the sugar cane production records of the Pajares' family, which showed that from December 1997, during the period the ICO's were in force, the area producing sugar cane had expanded by an average of 59 ha per year. Mr Cross asserted that the September 1997 aerial photograph showed that approximately 250 ha of the claimant's land which was not affected by the ICO's, had been crashed and windrowed, or was at various stages of preparation for sugar cane cultivation. In addition, there was a further area of approximately 300 ha of timbered land on the unaffected area, a proportion of which would have been potential sugar cane land. Mr Cross reasoned that at the rate of expansion of sugar cane production by the Pajares' family, the claimant had sufficient area available for the family's farm expansion program on the unaffected land, without the need to utilise the area affected by the ICO's.
Mr Cross concluded that no loss had occurred and no compensation was payable.
The Effect of the Interim Conservation Orders
Mr Pajares gave evidence in relation to the effect of the ICO's. He was of the opinion that those orders had interfered with his development program. They prevented him from clearing regrowth on land that he had previously crashed. Because of the ICO's, he claimed that he had insufficient land on which to graze cattle, being forced to use land which he had developed for pastures on the unaffected land to expand his sugar cane operations. However, Mr Pajares did not identify the area that he had crashed prior to the issuing of the ICO's, or to provide an estimate of the loss of ceasing to run cattle.
Conclusion
I am not persuaded by the arguments of either valuer. There was no evidence to support Mr Eales' view that the claimant would have concentrated on the affected land rather than on the land which was not affected. Furthermore, I do not accept his reasoning with regard to the monetary loss.
On the other hand, Mr Cross concentrated on the probable expansion of sugar cane production land on the area unaffected by the ICO's. That would be reasonable if the land was to be developed for sugar cane in the near future. However, that reasoning did not take into account the fact that Mr Pajares' program of development proceeded on crashing areas of timber well ahead of establishing land for cultivation for sugar cane. That crashed land was developed for grazing purposes to run cattle until such time as the land was needed for sugar cane.
I accept Mr Pajares' evidence in that regard. However, he did not provide any details of his monetary loss due to the making of the two valid ICO's. There is no doubt that timber had been crashed quite legally on an area which has not been identified. However, because the respondent acted quickly, it would be reasonable to assume that it occurred on the land which was to be affected by the ICO of 9 November 1998. There is evidence that other areas had been crashed at an earlier time. At the very least, the ICO's prevented the claimant from clearing regrowth on those areas.
There is also the element of disruption. The first of the two ICO's in respect of which there is a valid claim for compensation, was made after Mr Pajares and one of his sons had been legally crashing timber with two bulldozers and a chain. The making of that ICO no doubt has caused disruption, inconvenience and some cost.
The Act provides for the payment of compensation because of the making of an ICO. However, it provides no guide lines for its assessment, other than compensation must be "reasonable". In my view, there must be a causal link between the making of the ICO and any loss suffered. I have no doubt that the making of the ICO's of 9 November 1998 and 9 April 1999 caused some monetary loss to the claimant in having to alter his development program for the affected land. In addition, there is evidence that the claimant incurred expense in seeking legal and valuation advice. In my view, the claimant would have been entitled to seek professional advice and assistance in making the claims for compensation. Although these are not claims under the Acquisition of Land Act 1967, similar principles in respect of reasonable professional fees would apply.
However, without any details of the monetary loss suffered by the claimant because of the making of the ICOs, I can do no more than award nominal compensation in respect of each of them.
I will therefore award $10,000 as reasonable compensation in respect of each of the Interim Conservation Orders made on 9 November 1998 and 9 April 1999.
Orders
1.Compensation in respect of the interim conservation orders made on 9 November 1998 and 9 April 1999 is determined at Twenty Thousand Dollars ($20,000).
2.The application to extend the time for the making of claims for compensation in respect of the interim conservations orders dated 17 December 1997 and 3 September 1999 is refused.
JJ TRICKETT
PRESIDENT OF THE LAND COURT
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