Pappalardo v The Council of the Shire of Mulgrave

[1993] QLC 15

[1993] QLC 15

 

 

LAND COURT,

BRISBANE.

18th June, 1993.

Re:Claim for Compensation. Resumption for Road, Park and purposes incidental to Sewerage (buffer) purposes.  A92-19.

Francesco Pappalardo and Ors

v.

The Council of the Shire of Mulgrave

J U D G M E N T

By Proclamation published in the Government Gazette of 17 August, 1991,  the Council of the Shire of Mulgrave resumed for Road, Park and purposes incidental to Sewerage (buffer) purposes an area of 9.044 hectares described as Lot 61 on Plan 835486 Country of Nares, Parish of Smithfield.  The land was resumed on and from the date of publication of the Proclamation in the Gazette.  Prior to the resumption the subject land formed part of an area of 52.284 hectares being Lot 60 on RP 730250 which was held in fee-simple by the claimants Francesco Pappalardo, Giovanna Pappalardo, Domenico Brancatisano and Maria Brancatisano.  The parent parcel was used for cane growing purposes and remained at the date of hearing, together with the resumed land, used for that purpose.  The land prior to resumption comprised an odd shaped parcel roughly in the shape of a wellington boot situated on Yorkeys Knob Road to which it had a frontage on the eastern boundary of about 600m and with similar frontage to a dedicated but unmade road which branched in a south-westerly direction from Yorkeys Knob Road before returning to that road south-easterly of the resumed land.  The land resumed comprises a rectangular shaped parcel running west from the unmade road (the toe of the boot as it were).  The bulk of the western boundary of the parent parcel fronts a Wetland Reserve with the south-western part and the northern boundary of the resumed land fronting a Sewerage Treatment Works Reserve under the control of the Mulgrave Shire Council as trustee.  On the western boundary of the Reserve and the resumed land is freehold land held by the respondent part of which contains, in the north-eastern section, the Marlin Coast Sewerage Treatment Plant.  Works provided by the resuming authority since resumption include the construction of a road from Yorkeys Knob Road via the unmade road then through the resumed land and thereafter via the border of the freehold land held by the respondent to connect with McGregor Road which runs the northern boundary of the freehold.  Immediately to the south of the resumed land is freehold land and to the east a triangular parcel of land (fronting the unmade road and Yorkeys Knob Road) which is held by the claimants under special lease from the Crown.  Half Moon Creek flows through the resumed land thence the Wetland Reserve to the sea between Yorkeys Knob and Earl Hill some 3-4 kms north of the resumed land.
           The parent parcel which I shall refer to as the farm is situated about 15 kms from the CBD of Cairns by bitumen road and about 4.5 kms from the Smithfield Shopping Centre to the west.  Schools are within 2.5 kms at Yorkeys Knob.  The farm is zoned "Rural C" on the Mulgrave Shire Council Town Plan. 
           A claim for compensation dated 3rd January, 1992 was served on the respondent.  The sum claimed of $683,450 comprised claims as follows -

Loss of land  $678,750
  Valuation fees  $   2,700
  Disturbance  $   2,000

In the hearing of the matter leave was sought and obtained to amend the claim to $591,550 being -

Loss of land  $588,250
  Valuation fees  $   2,700
  Legal fees  $     600

Valuation and legal fees in the sums stated are agreed.  The claim for loss of land comprises an assessment of value written by Mr N V Teves, registered valuer.  The respondent contended for an assessment of value in the sum of $180,000.  This assessment was written by Mr G J Coonan, registered valuer.  In the former assessment Mr Teves would value the farm at $65,000 per hectare before and after the resumption.  Mr Coonan in applying the same considerations would value the farm before the resumption at $20,000 per hectare.  He has applied that figure to the farm after the resumption, notwithstanding the opinion expressed in his valuation that the resumed land would be worth less than the per hectare value of the whole before the resumption.  The difference of opinion essentially turns upon the interpretation of market evidence available at the date of resumption which in turn is governed to a considerable extent by constraints which may apply to the development of land situated, as the farm is situated, (more so the land resumed) within the Barron River Delta flood zone.  The question whether the farm had a potential use above its current use led the parties into calling evidence from experts in town planning and engineering.  Besides Mr Teves witnesses called on behalf of the claimants were Mr A C McPherson consulting engineer, Mr G H Burchill consulting engineer and director of Pinebridge Pty Ltd which is a company desirous of developing a project to the east of the farm known as "Rainbow Harbour";  Mr C G Buckley town planning consultant and Mr D Brancatisano, part owner of the land resumed.  The respondent called Mr P Robinson, town planning consultant, Mr J Venturato, surveyor and Mr N I Collins civil engineer.
           The Barron River Delta may roughly be described as that area of land north of the Barron River through to the mouth of the Half Moon Creek (Half Moon Bay) and west to the Captain Cook Highway except for the south-western section which goes beyond the highway.  Within the area a number of creeks take overflow from the River to the sea.  The northern area is severed by Half Moon Creek which takes overflow and local event water whilst the other major channel would appear to be Thomatis-Richters Creek which permeates the central area entering the sea to the south of Yorkeys Knob.  Coastal urban development of higher land has occurred at Machans Beach which is separated (travelling north) from Holloway Beach by Barr Creek which beach is separated from Yorkeys Knob by Richters Creek and that area from the Half Moon Bay area by Half Moon Creek.  To the west of the Captain Cook Highway and north of the Kennedy Highway there is the urban development at Smithfield.  The delta takes up the valley between these areas so to speak.  Land within the area is primarily used for cane growing purposes.  The area began to take real significance in a planning and development sense when in August, 1988 MacDonald Wagner Engineers studied and prepared a report for the Cairns Port Authority, the Mulgrave Shire Council and the Premier's Department.  The report is in evidence as Exhibit 17.  Mr Collins was the project manager responsible for the study.  The executive summary of the document sets out the aims -

".to carry out sufficient hydrologic analysis to enable confident prediction of the size and shape of floods reaching the delta.

.to carry out analysis of storm surge to enable prediction of likely sea-level rises during cyclones of specific average annual recurrence interval.

.to set up and calibrate a hydraulic numerical flood model at such detail as to enable accurate prediction and representation of flooding in the delta.

.to analyse sediment movement in the main channels of the delta, to enable realistic physical representation of river and streams of the delta.

.to carry out hydraulic numerical modelling of various current proposals in the delta, to assist in their design.

.to document the completed model for use in examining future development proposals in the delta."

Exhibit 15 is a further report prepared by Connell Wagner and adopted by Mulgrave Shire Council.  The forward may be repeated -

" The Barron River delta occupies some fifty square kilometres of low lying land immediately to the north of Cairns City.  Over the years this land has experienced periodic flooding, which, as the area continues to grow, poses potential problems for the future.

In order to permit appropriate future management, a major study was recently undertaken into flooding of this area.  This publication, intended for use by potential developers, consultants, and other technical users, explains the study and how the Council is now dealing with future development and the protection of existing properties.

This publication has been prepared as a general guide to the findings of the Barron River Delta Flooding Study and the numerical hydraulic model developed for and used as part of that study.

This document is intended for use in general initial investigations by users with some specialised knowledge of the concepts and techniques of flooding and hydraulics and while all care has been taken in its preparation, no warranty is given or implied as to its suitability for specific projects.

Council policy is that individual development applications are to be considered in detail by Council's hydraulic engineers using the model so that the effects on flooding can be assessed both for the project itself and other areas within the delta.

Council has adopted the numerical hydraulic model development during the Barron River Delta Flood Study as the yardstick by which all development proposals are judged.  The adoption of a single model operated and interpreted by those skilled in its development and use is intended to ensure that all proposals are dealt with in a consistent and objective manner.

The procedure for making a development application is set out in Part B of this report.

This publication is in two parts:

Part A - Technical Guide

Part A explains the aims and results of the study and describes the computer model which was developed as part of the study.  Various drawings are included to provide information on design flows and flood levels.

Part B - Rezoning, Subdivision and Building Policy

This document sets out Council's policy on development in the Barron River delta.  Included with this document are details of the procedure to be followed in using the model in association with development application or design."

Mr Teves described the resumed land as comprising generally low lying marginal cane land with sections of mangrove intrusion.  Large open drains traverse the site.  Mr Brancatisano said that about 5 hectares is under cane.  A survey done of the area by Mr Venturato shows general levels (metres - AHD) between RL 0.88 and RL 2 with a small section above RL 2 but less than RL 3.2.  Mr Teves with the assistance of data provided by Mr McPherson estimated that about 35% of the area was below RL 2, about 60% between RL 2 and 3 and about 5% above RL 3.  This method of classification was applied to a number of his basic sales more particularly to lands which he described as sales 1 and 7 (Rainbow Harbour) and sales 2, 3 and 6.  However the evidence will establish that since the adoption by Council of the policy contained in exhibit 15 there is a vast distinction in both the probability of obtaining development approval and if obtained comparative development costs between lands wholly flooded; the situation of such lands (whether on the sea) eg sales 1 and 7 or upstream in which case the depth of inundation is lesser in the former and lands possessing flooded land on the fringe.  Thus the classification method adopted by Mr Teves on data provided by Mr McPherson although differing in degree from levels provided by the respondents' witnesses is deficient without further classification.  That exercise I find is unnecessary as there is no real dispute as to what may be allowed or is economically obtainable by way of development of the resumed land and the farm as a whole.  The result of the studies made by Connell Wagner show that during  significant Barron River floods (that is floods greater than the 1:5 year annual execeedence probability) significant amounts of flow break out of the Barron River main channel into Half Moon Creek catchment and across the resumed land.  Peak water levels in the vicinity of the site for the floods in 1977 and 1979 were 3.7 and 3.4.  In the reckoning of Mr Collins such floods would inundate the subject land in excess of 1.5 metres average.  Estimated peak levels comprise -

1:100 years               -          4.9 metres
  1:50 years                 -          4.1 metres
  1:25 years                 -          3.2 metres
  1:5 years                   -          1.9 metres

These levels indicate on the workings of Mr Collins that the entire site is inundated by floods greater than 1:25 and that only a small proportion of the site is free from inundation during a 1:5 year event.  This position may be contrasted with the position pertaining in respect of "Rainbow Harbour".  There because of the location of the land to the mouth of Richters Creek inundation is, in the opinion of Mr Collins, up to a metre less notwithstanding that there is comparability in reduced levels and percentages of lands within those levels.  The policy adopted by the Council is that where development is permitted the Council must be satisfied that there would be no increase in flood levels elsewhere and no change in flood flow distribution or as Mr Burchill put it - one would definitely have to plan for nil impact.  For lands of this nature flooding impact is controlled by the provision of lakes and canals or waterways.  A concept of development of "Rainbow Harbour" which will be discussed later is an example although the approval for that development was obtained prior to the adoption by the Council of the policy contained in exhibit 15.  For a golf course development within the flood plain the Council has no specific guidelines but the general rule is according to Mr Collins to have the greens clear of the level of a 1:10 year event and the fairways clear of a 1:5 year event.  Mr Burchill who has had much experience in this regard in the area of the Gold Coast agrees that it is desirable to have fairways clear of 1:5 year event.  For land situated in a high hazard floodway (where the resumed land lies) the policy as may relate to minor residential development states that development should be restricted.  In fact that recommendation is made for that classification in respect of any use sought to be made of any land within the area.  Were such development proposed on land classified as low hazard flood fringe lot fill level may be permitted to Q50 (1:50) and floor level to Q100 (1:100).  Were an industrial development permitted on land classified as low hazard flood fringe lots would require filling to Q10 and floor level to Q10 plus 150mm freeboard.  For any form of residential development minimum floor levels in any zone apart from those lands in the high hazard floodway areas are required to be at Q100.  The results of the Connell Wagner study found their way into the strategic plan and development control plans which have recently been put before the Minister for gazettal.  They were on display in 1990.  It is questionable whether the constraints which would apply to land as at the resumption date (August, 1991) were known or if known to what degree were they known when the majority of sales in evidence before the Court were contracted.  Mr Teves has referred to nine sales.  All except two (sales 2 and 3) occurred in 1988.  Mr Coonan referred to six sales.  They took place generally in 1987 and 1988.  Between then and 1991 Mr Teves would say that the market for this type of land rose by 30% and dropped by 10%.  Mr Coonan would say the net effect is that a lower value than 1988 should apply.  Mr Burchill who is a Director of Pinebridge which company purchased land in a common sale (s 9 Mr Teves; s2 Mr Coonan) in November, 1988 described that time as on when "boom conditions" applied.
           Under the zoning of "Rural C" in which the farm is situated a wide range of uses are permissible with consent which include accommodation units, hotels, holiday cabins and also other uses such as outdoor entertainment.  Under the strategic plan awaiting gazettal the farm is designated as Rural.  Under the relevant development control plan it is designated as a constrained area.  The principal constraint on development is flooding.  The strategic plan recognises that tourist developments may be approved in rural areas where they are either of a site specific nature or require large areas of land and are otherwise not appropriate in an urban area.  Under the proposed development control plan land is designated as a constrained area if it is land which is subject to one or more identified constraints.  In this case the constraint is flooding.  Such land may be developed for Tourist purposes if it is otherwise suited for such use and the applicant can establish to the satisfaction of the Council that the constraint can be overcome without adverse effects on other land or likely uses in other areas.  In so far as the resumed land is concerned and the farm it is accepted by witnesses McPherson, Buckley, Robinson, Collins and Coonan (and Mr Burchill) that a development which most likely would satisfy the constraints upon the land is a development for golf course purposes.  I turn then to the evidence of value.
            Mr Teves values the farm at a rate of $65,000 per hectare.  He put evidence of 9 sales before the Court.  Some of these were described as primary sales but as will be evident shortly the principal transactions upon which he relies comprise the proposals over land immediately to the east of the farm embraced in the "Rainbow Harbour" proposal.  These transactions are listed as sales 1 and 7.  The relevant lands which comprise a long rectangular shaped parcel of 30.74 hectares fronting Yorkeys Knob Road (sale 1) and a parcel of 225 hectares (sale 7) were put under contract in February, 1988 to Pinebridge Pty Ltd (Pinebridge) subject to conditions covering development approvals (and later funding) for considerations stated by Mr Teves as $2,060,800 (about $67,000 per ha) and $25,900,000 (about $115,000 per ha) respectively.  The contract covering sale 1 has been settled and Pinebridge is now the registered owner in fee-simple.  The contract covering sale 7 remains conditional.  The weight given by Mr Teves to sale 1 is evident in the comparability between the value applied to the farm at $65,000 per hectare and the sale price of about $67,000 per hectare.  In November, 1988 Pinebridge acquired from the Emanuel Group an irregular shaped parcel of 26.759 hectares for a consideration of $700,000 (about $26,000 per hectare).  This parcel which is listed as sale 9 (the common sale) adjoins the resumed land on the southern boundary.  It has a frontage to the gazetted but unmade road in the north-east and to Yorkeys Knob Road in the south-east.  It is not opposite "Rainbow Harbour" as is the farm.  The circumstances covering these transactions were explained by Mr Burchill who is a director of Pinebridge.  Mr Teves' remaining sales 2, 3, 4, 5, 6 and 8 are to the north-west of the farm between Earl Hill and Half Moon Creek on the east and the Captain Cook Highway on the west.  Access to the area from the highway is by Reed Road.  Sales 4 and 5 are north of Reed Road.  Sale 4 which comprises an area of 143.3 hectares is described by Mr Teves as consisting mainly of elevated hillside land (Earl Hill) with some very steep areas sold in October, 1988 for $18,000,000 or about $125,000 per hectare.  The land was purchased by TNN Cairns Pty Ltd which is a Japanese controlled company.  Mr Teves said that the sale is within the same general area of the subject land but is extremely different country.  The sale land is outside the area of the Barron River Delta and is not one of his primary sales - the primary sales being those sales "which are low lying and subject to water inundation during flooding".  Sale 5 which adjoins sale 4 comprises predominantly hillside land with some level area in the south-eastern corner.  The property has very good sea views and has esplanade frontage.  This land was purchased by TNN Cairns Pty Ltd for $25,650,000 in October, 1988.  Like sale 4 it is not one of Mr Teves' primary sales.  Sale 8 which adjoins the frontage area of sale 5 sold in September, 1988 for $15,500,000.  The site is described by Mr Teves as a relatively high absolute beach frontage site which is far superior to the subject site.  It is not a primary sale.  Sale 6 which adjoins sale 8 at the rear is an irregular shaped parcel with some frontage to Reed Road and a rear boundary to the Half Moon Creek Wetland Reserve.  This land of 34.53 hectares was purchased by TNN Cairns Pty Ltd in October, 1988 for $1,350,000 or about $39,000 per hectare.  This sale is seen by Mr Teves as a primary sale.  The sale land is low lying land and fronts a Wetland Reserve.  At the time of purchase the sale land possessed approval for the development of a deep water canal from the sea to make it navigable for the development of a marina.  Sales 2 and 3 are adjoining parcels lying immediately to the west of sale 6.  Both parcels were purchased to Daikyo (North Queensland) Pty Ltd in 1990.  Sale 3 which has frontage to Reed Road and an area of 20.84 hectares was purchased in December, 1990 for $4,000,000 or about $192,000 per hectare.  The bulk of this land is above the level of a 1:100 year flood.  Sale 2 which adjoins sale 3 on the south and east comprises a parcel of freehold land and a parcel of land held under special lease tenure from the Crown.  The aggregate area of 47.99 hectares was purchased in August, 1990 by Daikyo for $4,200,000 or about $87,500 per hectare. The area held under lease and the south-eastern section of the freehold parcel fronts the Half Moon Creek Wetland Reserve.  In the calculations made by Mr McPherson about 5% of the area held under lease is above RL3 whilst about 90% of the freehold is above RL3 - rising it would appear to RL7.5. 

           Mr Coonan put details of 6 sales before the Court.  The transactions covering "Rainbow Harbour" are not part of this evidence.  Mr Coonan does however place weight on the purchase by Pinebridge of the parcel adjoining the resumed land (Mr Teves sale 9).  In terms of the immediate environs he has placed weight also on a purchase by the Mulgrave Shire Council from Antlia Pty Ltd (the Emanuel Group) of a parcel of 57.87 hectares which adjoins the resumed land on the western boundary with access to McGregor Road.  The eastern section of this land which he lists as sale 6 adjoins the Wetland Reserve.  The area was purchased in August, 1988 for $1,900,000 or $32,832 per hectare.  Part of the area was put to General Industry.  The north-eastern section contains the sewerage treatment plant.  In the workings drawn by Mr Collins it is apparent that in a 1:100 year flood event the whole area apart from an area along the McGregor Road frontage is inundated.  The area was purchased by the Emanuel Group in June, 1987 for $1,430,000 or $24,700 per hectare.  Sale 1 comprises a parcel of 25.51 hectares which is situated on the corner of Yorkeys Knob Road and the Captain Cook Highway.  This area which is of regular shape was purchased by the Emanuel Group in October, 1988 for $630,000 or about $24,600 per hectare.  Sales 3 and 4 are to the west of the Captain Cook Highway and opposite sale 1.  The land contained in sale 3 comprises 62.42 hectares of undulating country being low lying in part then becoming more elevated towards the rear.  The area is intersected by a creek and has considerable useable land.  It was purchased by the Emanuel Group in 1987 for $2,115,000 or about $34,000 per hectare.  Adjoining this area on the south an area of 58.64 hectares was purchased by Destination Projects Pty Ltd in May, 1989 for $1,305,000 or about $22,250 per hectare.  The area possesses low lying land in the east along the road frontage rising to the foothills of the Kuranda Range.  The site was purchased as a base site for the Kuranda Cable Car.  Mr Coonan says that the land contained in sale 3 and the majority of the land contained in sale 4 has been onsold to the one purchaser for the eventual development of a golf course residential estate.  Sale 5 is an L shaped parcel with frontage to the Captain Cook Highway situated between sale 1 and the Barron River.  The area comprises 31.71 hectares of low lying cane land.  The land was purchased in February, 1988 for $485,000 ($15,295 per ha) by Marleen Hammond who owned adjoining land which she intended to develop as a resort.  Mr Coonan said that the Emanuel Group came to Cairns in 1987 and took options and conditional contracts and delayed settlements over a large number of properties in North Queensland including a considerable number in the Barron River Delta.  He said that some of these contracts eventually settled and that others have not settled and are unlikely to settle.  He did not know whether the group were aware that the Barron River Study might have been proceeding.  However, he said that his firm was involved with the valuation of the land contained in sale 1 at the time of settlement and that the Emanuel Group at the time thought that flooding was not a serious problem and believed that with a such a prominent corner site the land could at least be utilised in part even if some of it had to be given away as a floodway.  He sees the site as a superior site to the subject land because of its location and is of the opinion that the site has some potential for a commercial orientated use subject to satisfying flood control requirements.  Sales 3 and 4 are seen as superior lands because of elevation.  Sale 5 which Mr Coonan said was purchased so as to give rear land (intending to be developed as a resort) highway frontage reflected a price in his opinion which was just above a cane land value.  He said that the land in sale 6 was purchased with the original intention of creating an industrial development.  This has taken place in part in the north-western corner of the site on the fringe of the 1:100 year flood line.  In his opinion the property is superior to the subject land.  The land contained in the common sale is seen as being comparable with the subject land.  This also is the opinion of Mr Teves and witnesses McPherson, (Burchill by implication) and Collins.  In perusing the line of the western boundary of the flood zone drawn by Mr Collins I find that only relatively small areas (on the fringe and in the east) of sales 3 and 4 of Mr Coonan's sales are within the zone.  Sale 6 (Mr Coonan) is within the zone save for an area in the north-western section fronting McGregor Road.  Moving then to the north to sales 2 and 3 of Mr Teves it appears that the whole or virtually the whole of the land in sale 3 is outside the zone, whilst in respect of sale 2 the whole of the special lease area and the south-eastern section of the freehold is within the zone.  Sale 6 of Mr Teves which adjoins that area on the north-east is essentially within the zone.  Through the body of the Delta area there exists sale 1 (Mr Coonan), the common sale, and sale 5 (Mr Coonan) which is south of Thomatis-Richters Creek. Mr Coonan said that areas possessing high lands with fringe areas within the zone can easily make use of the fringe areas for recreational forms of development without interfering with flood requirements.  This he says would apply with respect to sales 2 and 3 of Mr Teves sales which were purchased by Daikyo.  Similar comment would apply in respect of his own sales 3 and 4 and to an extent sale 6.  With the exception of sales 3 and 4 (Daikyo) and sale 4 (Destination Projects) all purchases were made in 1987 and 1988.  Obviously a prudent purchaser in 1991 would not ignore the planning and development provisions then applying.  The policy has far less impact on high lands possessing fringe flooded land than it has on wholly flooded land.  It is common ground that highest and best use of the farm if developed for any use apart from its existing use would be limited to outdoor recreation (golf course) purposes preferably (for economic reasons) in association with other land developed for residential purposes.  I notice that in concepts thrown over the farm and the land acquired by Pinebridge to the south drawn by Pinebridge between 1991 and May, 1992 that the first included a small area of residential development in the northern part of the farm amid a golf course and lake development with the area of the common sale as substantially a residential/lake development.  Subsequent plans drawn in March, 1992 and May, 1992 depict both areas as being wholly used for golf course purposes.  In applying his sales evidence Mr Teves seems not to have addressed the policy of the Council applying in 1991 or highest and best use in the sense in which it was addressed by other witnesses but rather has assumed that the land would have attraction in the market place simply because it was land adjacent to and overlooking wetland and thereby, ipso facto, had possible potential access to the sea.  He seems to have assumed that the land would have the same attraction in the market place in 1991 as the land within "Rainbow Harbour" had in 1988.  Pinebridge, is a company of which Mr G H Burchill is a director.  He is experienced in the development of flooded land for resort developments including golf course components.  He explained the circumstances motivating the proposal.  He said that the company sought land in the area and was motivated by a desire to develop a large scale integrated residential and resort development which would take advantage of a marine harbour.  The proposal would provide a new community which would be largely based on tourism as its principal economic activity,  balanced by a permanent residential population occupying about 1,000 residential units.  Mr Burchill drew the original master plan for Sanctuary Cove.  He said that he saw a modified version of that kind of development as being highly applicable in the Cairns market - the attraction in the particular land being primarily the ability to achieve a navigable harbour waterways project as a feature.  The contracts for purchase were entered into in February, 1988.  Payment of a substantial non-refundable deposit was required in the order of $2,000,000 in order to demonstrate a commitment to the whole project.  This was provided by way of completion of the purchase of the land described by Mr Teves as sale 1.  The land covered by the contract described as sale 7 remains conditional and "conditional now also on the raising of funds to proceed with the development."  Other conditional elements included rezoning approval and "primarily the canals approval" and a mangrove destruction permit.  Rezoning approval to "special facilities" with a very long list of uses within that zone was obtained in 1989.  A flood study was a requirement of the council.  An environmental impact statement was required in seeking the approval of the State Government for canals.  Provisional approval for this purpose was given in March, 1992.  Rezoning has not been gazetted.  Such is conditional on the developers providing a $5,000,000 bank guarantee and "that's just not possible until funding for the overall project is in place" (Mr Burchill).  Funding is being sought for the project.  He agreed that settlement of the purchase of the land contained in sale 1 was not a stand alone purchase.  The concept plans drawn over the relevant lands have contained constants being an environmental reserve in the north-eastern section and a harbour centrally located with entry from Richters Creek just below the mouth and variables including canal development in the south and an 18 hole golf course in the north (July, 1991).  The concept drawn in May, 1992 has deleted the golf course and substituted canal development in lieu thereof.  The current intentions as explained by Mr Burchill are that Pinebridge would perform all development works and then sell off components to specialists developers of whatever kind, whether for hotel, commercial centre and so forth.  A golf course within the project is not within the current program.  In November, 1988 the land contained in the common sale became available for purchase.  It was then owned by the Emanuel Group.  Of this purchase Mr Burchill said that it was bought on a fairly short decision time because it was available and it was recommended that it be bought "simply on the basis that having additional land in the vicinity may help us to solve some of the problems that come up with this kind of development in boom conditions, particularly it may be able to be used for a caravan park facility" to house accommodation during development and as Mr Coonan said later in the proceedings Pinebridge believed that when the resort actually happened there might be some inferred benefit to surrounding areas.  The concept plan drawn in July, 1991 shows a lake/residential development over this sale land which was proposed to drain to the sea under Yorkeys Knob Road and through "Rainbow Harbour". However no application of any kind has been made to the Council or otherwise in respect of the sale land and no application or option, contract or other has been taken over the farm.  The "Rainbow Harbour" proposal in terms of the market evidence before the Court comes up as somewhat unique.  Primarily the development was dependent upon the ability to obtain a harbour of no mean scale with trained entrance from the sea.  The purchase of the area described as sale 1 although a completed transaction is so interwoven with the transaction covering the land described as sale 7 that neither or both could be taken as evidence of value at the relevant date in 1991.  Even if the parent farm is given a use for golf course purposes (which it seems on the evidence is its highest and best use) a likely purchaser for that use if it is to be generated by the development of "Rainbow Harbour" could be years away.  The purchase by Pinebridge in November, 1988 of the common sale land appears as an opportunity purchase in a period described by Mr Burchill as one of boom conditions.  That area was purchased for about $26,000 per hectare.  Between about the time of purchase of that land and the relevant date Mr Teves believes that the market for this type of land rose by about 30% then dropped by about 10%.  Mr Coonan is of the opinion that the market began to pick up in mid 1987, became heated through 1988 and began to fall by the way side in 1989 with a few lingering sales at former values.  These he cited as being sales 2 and 3 used by Mr Teves which were purchased by Daikyo for a residential golf course type development.  By mid 1990 Mr Coonan believed that the Japanese had left the market.  He would describe the market in 1991 as being very flat.  He believes that the lack of recent sales in the area of the Delta is the result of changing market circumstances and increased awareness of the problems associated with the development of land in the area.  The Daikyo purchases are the most recent sales.  However, Mr Coonan says that Daikyo was interested in a residential development.  The land possesses that component with flooded land on the fringe.  The area does not possess the constraints which would apply in a development of the farm.  Nor is there comparability with the subject land in terms of highest and best use.  The purchase by TNN Cairns Pty Ltd of the land contained in sale 6 although comparable in the sense that it is within or on the fringe of the Delta was purchased in conjunction with other lands by the same company.  The land had at the time of purchase approval for the development of access to the sea.  The purchase was made in October 1988 for a consideration reflecting a price per hectare of about $39,000.  It could not be assumed even in the heat of the market at that time that the farm could obtain access to the sea through the Wetlands Reserve.  This in my opinion is confirmed by the evidence on highest and best use.  The common sale which has more comparability with the farm than this sale (6) was purchased one month later.   It appears that the potential purchaser which would be sought for the subject land would be a developer who has acquired or is proposing to acquire residential development in the near vicinity eg the purchaser of an hotel site from Pinebridge if it is successful in obtaining funds and moving on with the project.  But it is difficult to imagine that anyone in 1991 would risk a substantial sum over and above cane land value in the anticipation that at some time in the future the land may be required for such purposes by an adjoining or nearby developer.  Enthusiasm on these lines of development must be dampened to some extent by the evidence of Mr Robinson when he said that 5 golf courses have been approved in the Delta and none developed.  I find on consideration of the evidence that the principal sales/transactions relied upon by Mr Teves for his valuation  are defective as basic valuation material for the reasons stated save for the common sale.  I find also that sale 6 of Mr Coonan's sales has some relevance.  It is agreed that this land is superior to the subject land.  Of the two sales the common sale is the more comparable with the farm.  Since that purchase however, local authority development policy has become clearer and firmer and the market has become dormant for this type of land.  In 1991 I would tend to think that a purchaser would have the advantage over a vendor in any bargaining in view of the changed conditions.  Nevertheless in following the established principles which require that the Court resolve any doubts in favour of the dispossessed owner I propose to apply the evidence demonstrated by the common sale and value the farm prior to the resumption at $25,000 per hectare.  Although there is evidence which would support the opinion expressed by Mr Coonan that the resumed land is inferior per hectare to the balance of the farm there is evidence which came from Mr Burchill that inferior lands such as mangrove land may be able to be traded with the authorities for the purpose of obtaining development of other land within any development proposal.  In the circumstances it seems to me that it is fair and reasonable to value the farm after the resumption at the value applied before the resumption.  Accordingly compensation for the taking of the land will be determined in the sum of $226,100 ($25,000 per hectare).  Legal fees and valuation fees have been agreed at $600 and $2,700 respectively.  Compensation under all heads is therefore determined in the sum of $229,400.
           Since the resumption the respondent has constructed a road through the north-eastern section of the resumed land and thence along the southern boundary.  In this last part and for a short distance in the north-east the road has taken from the existing cane fields.  The claimants accordingly seek some interest on compensation.  In terms of area the parts taken over by the respondent are minor in comparison with the area under cane.  It is well established that interest is awarded on compensation in any case where a claimant has lost possession see Small and Anor v. Brisbane City Council (1968) 35 CLLR 239 and Silverton Grazing Pty Ltd v. The Commissioner of Water Resources (1980/81) 7 QLCR p 197.  In this case possession of a small part has been taken.  The area remaining under cane has been harvested annually and the claimants will be allowed to harvest again this year.  It is submitted by the respondent that there exists offsetting factors namely that the claimants have retained possession free of rates and that the road has improved access to the area.  However enhancement as such was not part of the respondents' case and no evidence was led on the matter.  The other matter is one which I believe should be kept clear of the issue before the Court.  It is a matter which, if applicable, is peculiar to a local authority as a resuming authority.  Liability for rates and other charges are matters governed by particular legislation.  In other words it is not a function of this Court to determine whether a claimant who has remained in possession is or is not liable for rates over the period of occupation.  The Court may in applying the principles applicable to the case find as a fact that a claimant has remained in possession and having decided that as a fact make no award of interest on compensation.  But that it seems is the limit of the jurisdiction of the Court.  What follows from such a finding between the claimant and a respondent local authority is not for this Court to decide.  In the circumstances I propose to allow interest on the gross sum but at a rate substantially less than that which would apply were possession taken of the whole area on the date of resumption.  Interest will be awarded at a rate of 1.5 per centum per annum.  Accordingly in the exercise of the Court's discretionary powers it is ordered that interest at the rate of 1.5 per centum per annum be paid on the sum of $229,400 from and including the date of resumption up to and including the day immediately preceding the date such sum is paid.

Member of the Land Court.

LAND COURT, BRISBANE.
  22nd June, 1993.

It is ordered in the exercise of the Court's discretionary powers that the Claimants pay the constructing Authority's costs of and incidental to the hearing and determination of the Claim.  The amount of such costs shall be ascertained and fixed by the costs taxing officer of the Supreme Court at Brisbane or Townsville, as may be agreed to by the parties, according to the scale of costs prescribed by law for the time being in respect of proceedings in the Supreme Court and in accordance with the provisions of section 41(9) of the Land Act 1962.

Member of the Land Court.