Pejama Pty Ltd v The Commissioner of Main Roads
[1989] QLC 3
•9 June 1989
|
LAND COURT,
BRISBANE
9th June, 1989
Re: Claim for Compensation -
Resumption for Road purposes.
(A88-50).
Pejama Pty. Ltd.
v.
The Commissioner of Main Roads
J U D G M E N T
By Proclamation published in the Government Gazette of 13th February, 1988, an area of about 375.5 square metres being part of Lot 1 on RP 201561 contained in C/T, volume 6798, folio 88, County of Stanley, parish of Enoggera, was taken under the provisions of the Acquisition of Land Act 1967-1986 (the Act) and the Main Roads Act 1920-1985 for Road purposes. The Proclamation was amended by Proclamation published in the Government Gazette of 26th March, 1988 - the substance of the amendment being an amendment of the area taken to about 335.3 square metres and further amended by Proclamation published in the Government Gazette of 18th June, 1988, under which the area taken, consequent upon survey, is described as "Lot 2 on Plan 191104 ....... containing an area of 336 square metres".
The land taken comprises a strip along the Enoggera Road frontage of a parcel in the suburb of Alderley which contained prior to the resumption an area of 1632 square metres. At the date of resumption the land was vacant.
The scheme of resumption is designated by the respondent as a widening scheme for the purposes of improving the Samford Sub-Arterial Road which in the location of the subject property is known as Enoggera Road.
The parent parcel is described as an "L" shaped property with an angled frontage of about 51 metres to Enoggera Road and double corners to Wakefield Street and Frederick Street. The land is situated on the edge of the Alderley shopping centre which provides generally community level shopping and personal services. The area is well serviced by rail and bus services.
Under the City of Brisbane Town Planning Scheme gazetted on 13th June, 1987, the land is zoned "Particular Development - Commercial Premises with a gross floor area not exceeding 1200 square metres".
The land was acquired by the claimant in 1984 for the purpose of redevelopment. The land was at that time zoned Residential "B". Subsequently, a change of zoning was obtained and plans for the construction of a building (office accommodation) of two levels over car parking were approved by Brisbane City Council (the Council) in October, 1987. The Notice of Intention to Resume was given on 30th September, 1987. The land was resumed as from 13th February, 1988. On 8th June, 1988, the Crown Solicitor on behalf of the respondent sought an order from the Court under Section 25 of the Acquisition of Land Act. An order was issued on 5th July, 1988, and an appearance entered thereon by the filing of a claim for compensation on 2nd September, 1988, by Messrs Lang Hemming and Hall, Solicitors, on behalf of the claimant in the sum of $1,950,205 made up as follows:-Purchase of alternative site
1628m2 at $450 per m2 $732,600
Conveyancing Costs & Stamp Duty $29,897
Professional Costs & Application Fees to
various Councils, Fire Services, Factories &
Shops, Safety Fees, etc. $127,000
Demolition of existing structures,
Application Fees, etc. $20,000
Survey, Set-out, Excavation, Footings $10,000
Management On-Cost including Rates, Land Tax,
Management, Insurances, etc. $100,000
Anticipated increase in building costs through
two year postponement $80,000
Loss of Rentals for two years through
postponement of building program $423,735
Capital Gains Tax Liability est. $350,000
Amalgamation of Titles and Costs of Vacant
Possession of new site est. $102,000
Solicitors Costs, Valuers Costs, Architects
Costs in preparing Compensation Claim $15,000
$1,991,483
Less Value of Residual Portion of the
Existing Site $50,000
$1,950,205
The matter was set down for hearing on 12th December, 1988, but was adjourned on application made by the claimant to the first available sittings of the Court in 1989. The matter was brought on for hearing on 21st February, 1989. At these sittings the claimant was represented by Senior Counsel instructed by Messrs Lang Hemming and Hall. Russell Geoffrey Brown, registered valuer and a member of the firm, A.D. Taylor, P.G. Byrne & Co., valuers, was called on behalf of the claimant. His assessment of compensation on a "before" and "after" method of valuation resulted in the sum of $469,350 excluding disturbance. In the "before" resumption exercise, he valued the land overall and "with full zonings and development package" at $360 per square metre or $587,520. The valuation was based on sales. As a check against the primary value he looked at the value of the property as a rezoned site only and added actual outlays, interest on the holding and profit and risk to arrive at a value of the site immediately available for construction; that is, with a complete development package. This exercise brought up a figure of $550,500. He valued the area remaining after resumption at $125,650 due to a number of factors including a doubt as to whether the land could be economically utilized as an office development. In the course of Mr Brown's evidence-in-chief, the matter was adjourned on application made on behalf of the claimant when it became known to Senior Counsel for the claimant through an architect from the firm (Malone Buchan Laird & Bawden Pty. Ltd.) which had been associated with the preparation of plans in connection with the claimant's development project that with relaxation of certain Council conditions a building with a gross floor area of about 1170 square metres could be put upon the site after resumption. Such was a matter that had not been considered by Mr Brown and obviously was critical to a proper assessment of the value of the land after the resumption.
The matter was again called on for hearing on 8th May, 1989. In the interim, Mr D.W. Stay, a director of the claimant company, secretary and public officer thereof, took over the carriage of the action. He obtained leave to amend the claim to $1,785,910 which comprises a summation of the following:-Reduction in land value from $924,018 to $90,446 $824,062
Improvements thrown away $45,144
Other Disturbance Factors $916,704
$1,785,910
The first sum was based on an exercise involving a hypothetical development of the site before and after the resumption. The remainder were expressed as follows:-
Disturbance Costs
Between Rezoning Date and Resumption Date.
Professional Costs thrown away $16,074.75
Council Fees and other applications 7,951.00
Less Water Connection Fee Recovery 800.00 $7,151.00
Construction Costs (excluding site establishment,
office expenses, administration of the project,
vehicle expenses, plant, etc.) $7,547.91
Administration Charge period 1.10.87 - 13.2.88
18 weeks @ $500 per week $9,000.00
Interest on Professional Costs and Council Fees
and Improvements from 1.10.87 to 13.2.88 $5,370.50
Total Improvement Costs thrown away $45,144.16
Between Resumption Date (13.2.88) and continuation
of the project
Additional Construction Costs expected to be
incurred in another Builder picking up construction
where D.W. STAY BUILDING CONTRACTORS LEFT OFF.
Contract Price at 1.10.87 $521,632
Anticipated Contract Price
based on $650 per sq. metre $795,600 $274,968.00
Inflation over two year delay to project
Construction Cost $911,378 x 25.5% $232,401.00
Costs involved in lowering carpark arising out
of M.R.D. lowering Frederick Street $28,319.00
Legals & Stamp Duty in acquiring alternative
land to replace resumed parcel (see caln) $41,225.00
Capital Gains Tax liability arising out of
reinvestment of the land
Value of Land $824,062
Add Interest $161,868
$985,930
Less Entrep. Profit $197,186
Available to reinvest in land replac.$788,744
Lost benefit in Cap. Gains Tax 39.5 cents in $ $311,554.00
Re-establishment Costs fencing etc. $3,000.00
Administration costs over two year period,
negotiations with M.R.D., Architects, Solicitors,
Quantity Surveyors, Barristers, Council,
Bill Gunn M.L.A., representations to many sources,
S.E.Q.E.B., Running of vehicles, office, etc.
Company Returns, Tax Returns, Stats Returns, etc.
Postages, recalling tenders etc.
From 13.2.88 to 8.5.89 = 65 weeks @ $200 per week $13,000.00
Costs of preparing Claim
Architects $3,647
$1,000 for April plans
& negotiations with
Company and Council
Quantity
Surveyor $495
Valuer $5,795
Council $300 Relaxation Application Fee
Solicitor $1,000 yet to be billed $12,237.00
Total of claim $961,848.00
Costs of Court-Case Barrister $10,615
Solicitor $4,000 (yet to be billed)
Valuer $550 $15,165.00
Mr Stay abandoned the valuation of Mr Brown and gave evidence himself, but before I comment thereon it is pertinent to deal with some history of the matter which came out in the hearing at these sittings. Enoggera Road has at all material times been under the control of the respondent. The shareholders of Pejama Pty. Ltd. are Mr Stay, his wife and their children. The claimant purchased the land in 1984. On 13th June, 1984, Mr Stay, on making a search in the offices of the Department of Main Roads (the Department), was advised that the Department had possible requirements from the subject land for future road purposes. The claimant was provided with a plan delineating a strip of land along the Enoggera Road frontage, varying from 4 metres in depth at the Wakefield Street corner to 2 metres at the Frederick Street corner as the extent of such future requirements. An application for a rezoning of the land to Local Business was lodged with the Council on 7th December, 1984. The application was refused. Following the lodgment of an appeal to the Local Government Court and discussions between the owner and the Council, the appeal was withdrawn and an application made on 19th November, 1985, to rezone the land to a Special Uses (Commercial Premises with gross floor area not exceeding 1200m2) zone. On 19th February, 1986, the Department advised the Council of its requirements and requested that in considering any proposal for development of the land the requirements of the Department be not compromised. The rezoning of the land was formally proclaimed on 27th September, 1986. Shortly thereafter, application was made for approval to erect and use a building on the land under clause 71 of the Town Plan. A number of requisitions were placed on the plans which the owner was required to satisfy before building approval would be granted. In answer to one of the requisitions, Malone Buchan Laird and Bawden on 10th December, 1986, forwarded the Council a copy of the plan obtained by Mr Stay from the Department in June, 1984. However, by this date the requirements of the Department had altered. By November, 1986, a revised planning lay-out had been finalised and approved by the Divisional Engineer on 9th December. Under the revised lay-out, the requirements of the subject land constituted a strip about 6 metres wide on the Enoggera Road frontage. Such information was obtained from the Department by Malone Buchan Laird and Bawden on 3rd December, 1986. The relevant planning area of the Council was unaware of the alteration and by October, 1987, had approved plans for the erection on the subject land of a building with a gross floor area of 1186m2 on setbacks, etc., relative to the initial requirements of the Department. The resumption followed in 1988. On 25th November, 1988, after the claim had been filed in court and prior to the date the matter was first set down for hearing, Malone Buchan Laird and Bawden submitted to the Council a building plan purporting to provide a gross floor area of 1176 square metres. Further plans were submitted resulting in an approval obtained in May, 1989 (just prior to the current sittings of the Court) of a plan with a gross floor area of 917 square metres and a net lettable area of 820 square metres. This plan formed the basis for Mr Stay's exercise in the hypothetical development of the land after the resumption. The plan he used for the exercise before the resumption was taken from the respondent, being a plan drawn up by Mr B.H. Hackett, architect, who had been retained by the Department to examine what type of building could be placed on the site before and after the resumption. The plan is a mirror of the plan approved in 1987 but expanded to embrace the potential of the land as a block containing 1632 square metres. Likewise the plan drawn by Mr Hackett in the after resumption situation which will be discussed later herein and that approved in May, 1989, are adaptations of the plan first approved. The "before" and "after" exercise performed by Mr Stay is calculated as follows:-
Calculation of LAND VALUE WITH APPROVED BUILDING PLANS
BEFORE AFTER
G.F.A. (Town Plan def'n) 1357m2 917m2
Add Lobby 15m2 40m2
Add Walkway (half) 28m2 60m2
G.F.A. (Effective) 1400m2 1017m2
N.L.A. Ground Floor 613m2 396m2
First Floor 633m2 424m2
N.L.A. Total 1246m2 820m2
Rents Ground Floor $200/m2 $135/m2
First Floor $145/m2 $135/m2
Car Spaces 33 25
Rental per space p. cal/mth $ 30 $ 30
Naming Rights $7,000 p.a. nil
Sky-Signs $5,000 p.a. nil
Capitalisation Rate 9.5% 10.5%
BEFORE AFTER
Rental per annum $214,385 $110,700
Cars $11,880 $9,000
Naming Rights $7,000 Nil
Signs $5,000 Nil
Total Rentals $238,265 $119,700
Capitalised Value $2,508,052 $1,140,000
Less Commission on sale $63,151 $28,950
Less Legals $5,000 $5,000
$2,442,901 $1,106,050
Less Entrepreneurial Profit $488,580 $221,210
(20%)
$1,954,321 $884,840
Less Letting Up Period $18,855 $9,975
$1,935,466 $874,865
Less Construction Costs
Material & Labour etc $878,120 $689,816
Interest for 6 months
@ 15.15% x half $33,258 $26,127
$911,378 $715,943
$1,024,088 $158,922
Less Advertising & Promotion 2,000 2,000
$1,022,088 $156,922
Less Leasing Fee (8%) $18,101 $9,576
$1,003,987 $147,346
Less Interest at 15.15% on
Land Value whilst building
and leasing occurs (7mths) $77,053 $45,234 (28 mths)
$926,934 $102,112
BEFORE AFTER
Less Rates & Land Tax whilst
building and leasing occurs
(est. $5,000 per annum)(7) 2,916 11,666 (28 mths)
Comparative Values of $924,018 $90,446
Land + Building Approval
Value Before Resumption $924,018
Value After Resumption $90,446
Loss in Land Value $824,062
The major differences between the exercises are the size of the respective buildings, the rentals likely to be obtained therefrom and the capitalisation rates. The last two are, according to Mr Stay, a reflection of the limitations in the letting of a building of lesser size with access to the site limited to the inbound traffic lanes and through the lowering of Frederick Street by 600mm. His valuation of the land before the resumption is $924,018 or about $566 per square metre. He says that a project based on the figures he employed in the after resumption exercise is viable. This exercise yields a valuation of $90,446 or about $70 per square metre. On top of the result, there is a claim for an abundance of items, most of which stand or fall on the adoption or refusal of the primary method. He did not attempt to derive a value of the land from sales of land with potential for like uses nor did he attempt to check the results of his exercise against such sales.
I will turn now to a summary of the evidence given on behalf of the respondent. The witnesses called were Mr M. Slater, registered valuer in private practice; Mr J.T. Houghton, registered valuer in the employ of the Valuer-General; Mr D.J. Mulcahy, a senior town planner in the employ of the Brisbane City Council; Mr B.H. Hackett, architect; Mr L.J. Kerven, quantity surveyor; Mr E.K.D. Hebron, architect; and Mr R.S. Nicol, an engineer in the employ of the Department.
Mr Hackett said that following a conference with Mr Stay he was provided with plans which were approved by the Council in October, 1987. The plans provided for a building with a gross floor area of 1186 square metres with a net rentable area of 1025 square metres. By using the same boundary setbacks as were contained in the approved plan, he prepared a plan for commercial premises for the site before the resumption with a gross floor area 1357 square metres. He then prepared a plan for a commercial building in the after resumption situation using the same boundary setbacks as were contained in the approved plan but with a reduction to 4 metre setback along Frederick Street which was approved in principle by the Council. The plan provided a gross floor area of 930 square metres. After further discussions with the town planning department of the Council he prepared further plans for submission to the Council and on 28th November, 1988, obtained approval in principle to a plan providing a gross floor area of 1189 square metres with a net lettable area of 1035 square metres and providing for 31 car parks. This was achieved by relaxation of certain Council conditions. In drawing up the plans, he followed as closely as possible the plans approved in 1987 with similar profiles and carparking setout.
Mr Kerven provided estimates of building costs at the date of resumption based on the plans prepared by Mr Hackett. On the before resumption plan, construction costs are estimated at $844,000. On the after resumption plan, costs are estimated at $785,000. There is nothing of any significance between such estimates and those used by Mr Stay. The plans drawn by Mr Hackett were adopted by Mr Slater and Mr Houghton in testing compensation on the method of hypothetical development. Mr Houghton in his exercise adopted Mr Kerven's costs. Mr Slater worked on costs of $811,511 in the "before" exercise and $754,800 in the "after" exercise. In the exercise performed by Mr Slater, he applied net rentals at the rate of $125 per square metre both before and after; car parks were rented at $20; he capitalised at 10.25% and in both instances he allowed 30% for risk and profit. A land value of $122,000 was obtained before the resumption and $70,000 after the resumption. Having done the exercise, he compared the land directly with a number of sales and concluded that the original site had a market value at the relevant date of $150 per square metre or $245,000. In considering the value of the site after the resumption, he said that there was an element of severance exacerbating the original poor site shape. He valued the land after the resumption at $140 per square metre or $181,500. This exercise yielded compensation in the sum of $63,500. The hypothetical development exercise performed by Mr Houghton resulted in a land value of $126,000 before the resumption and $102,000 after the resumption. After considering sales, he assessed compensation at $70,000.
Mr Mulcahy said that the plans submitted by Mr Hackett in the after resumption situation for a building with gross floor area of 1189 square metres would be acceptable to the Council with relaxation of certain conditions. He said that the Town Plan provides for relaxation of conditions and that relaxations occur reasonably frequently. He said that he had not seen, prior to it being produced to him in the witness box, the plan obtained from the Department by Malone Buchan Laird and Bawden in December, 1986, and that had such requirements been known to him, the plan approved in 1987 would not have been approved. He said that in November, 1988, plans were submitted by Malone Buchan Laird and Bawden for a building on the site which purported to provide for a gross floor area of 1176 square metres and that having calculated the gross floor area at 1356 square metres, he contacted the firm and pointed out that the gross floor area could not exceed 1200 square metres in accordance with the approved zoning. He said that at the time he also advised the firm of relaxations which would allow a building with a gross floor area of 1177 square metres to gain approval and that in subsequent discussions with the firm, the advices were reiterated. He said that notwithstanding such advices, the firm submitted further plans which gained approval in May, 1989, for a building with a gross floor area of 917 square metres - the plan used by Mr Stay in the after resumption exercise. Mr Mulcahy said that he had no knowledge of the reasons why the reduction was made.
The evidence of Mr E.K.D. Hebron dealt with the costs of modifying the approved plans and the additional costs which may be incurred as a result of the works performed by the Department. In his opinion modification of the plans approved in 1987 would only have necessitated renegotiation with the Council and a re-drawing of the sketch plans. He said that on the basis of the work involving a day in client negotiations, two or three days with the Council and three to five days of re-sketch planning, costs would be around $4,000 to $5,000. He said that the ramp grades to the site from Frederick Street were prior to the resumption on the Council minimum and that the lowering of Frederick Street by 600mm would necessitate the lowering of the driveway and the first slab by 600mm and then ramping up to the floor level over the next 6 to 8 metres. His estimate of the cost which he said was verified by a quantity surveyor was $8,000.
Mr R.S. Nicol is employed by the Department as Executive Engineer (Planning and Traffic), Metropolitan North District. He said that under a traffic system proposed and approved in 1977, future requirements for the subject land varied between 2 metres and 4 metres off the Enoggera Road frontage; that discussions which took place in 1986 between the Department and the Council indicated that the 1977 planning layout was likely to be unsuitable on community amenity grounds; that by November, 1986, a revised planning layout was finalised and subsequently approved on 9th December, 1986; that the final layout showed a 6 metre requirement from the subject property and that Malone Buchan Laird and Bawden were advised of such requirements on 3rd December, 1986, on searching the offices of the Department. He said that in the reconstruction of Frederick Street a kerb indent has been provided to the site and that the Department as part of the reinstatement process would construct a driveway across Frederick Street at a location suitable to the claimant.
In the course of the hearing it came out that Mr Stay did not engage the services of a valuer in preparing the claim filed in response to the order of the Court and that the legal fees incurred for the purpose - Messrs Lang Hemming and Hall, solicitors - were in the sum of $200.
In summary, it is submitted by Counsel for the respondent that compensation should not exceed a sum for land being either of the assessments made by Mr Slater or Mr Houghton - $63,500 or $70,000 - plus a sum of $4,000 to $5,000 being the estimate of the cost of re-drawing plans; the sum of $8,000 to compensate for the effects of the lowering of Frederick Street and $200 for legal fees incurred in preparation of the claim.
I should now set out some principles.
Under Section 20 of the Act, the Court in assessing compensation shall have regard not only to the value of the land taken but also to the damage, if any, caused by the severing of the land taken from other lands of the claimant and 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. Where a severance has occurred, it is common to assess compensation on a "before" and "after" method of valuation. In doing so, it is well established that any planning scheme which has a depreciatory effect on the value of the land subsequently resumed for the purposes of the scheme is to be ignored - Pointe Gourde Quarrying and Transport Co. Limited v. Sub-Intendent of Crown Lands (1947) A.C. 565; Melwood Units Pty. Ltd. v. The Commissioner of Main Roads (1978) 5 Q.L.C.R. 145 P.C. This principle has been put into effect by the respondent, is accepted by the claimant and needs no further comment. Secondly, in applying the method of a hypothetical sale of the block before and after the resumption it is to be supposed that the land is sold by voluntary bargaining between a claimant and a purchaser willing to trade but neither of them so anxious to do so that he would overlook any ordinary business consideration. It must be further supposed that both are perfectly acquainted with the land and cognizant of all circumstances which might affect its value either advantageously or prejudicially - Spencer v. The Commonwealth of Australia 5 C.L.R. 418 H.C. As a corollary to that, there is the principle that an owner, although not expected to mitigate his losses, is required to act reasonably (I.M. Howard and Others v. The Commissioner for Railways (1967) 34 C.L.L.R. 140 L.C.). These principles are, in my opinion, the key to the resolution of this exercise. The claimant has since 1984 been aware that the respondent had requirements in relation to the subject property. The initial requirements were reflected in the current zoning of the land. The subsequent requirements were known to the claimant in early December, 1986, and for motives which were not explained were ignored. It was made known to the claimant when the resumption became a reality that with relaxation of certain Council conditions, approval could be obtained for a building on the site with a gross floor area of 1189 square metres. This knowledge appears also to have been ignored. The principles require the assumption that the land is sold after the resumption for the most advantageous use for which it is adapted. The hypothetical prudent person in the position of the claimant is according to the authorities presumed to be cognizant of all matters going to the worth of the block and in dealing with the land he is required to act reasonably. I cannot accept that a prudent person having knowledge from the appropriate authority that a building of 1189 square metres could be put on the subject land after the resumption would sacrifice that value in the market place. It would appear to me that the prudent person knowing of the requirements of the Department in December, 1986, and prior to submission to the Council of the plans approved in 1987 would immediately take steps to open negotiations with the Council and the Department with a view to achieving as soon as possible what the evidence says could be achieved and so obtain approval to a development of comparable size to that originally intended and with little additional outlay. The simplicity of an application of common sense is clear in the evidence of Mr Hackett and Mr Hebron.
I accordingly find that there is no foundation to Mr Stay's hypothetical exercise in valuing the land after the resumption and he having made no attempt to do the exercise on the basis of a building with a gross floor area of 1189 square metres, I cannot do it for him. But I would imagine that if size is given the relevance he gave it, the result would not enhance his case for compensation. This part of the claim is rejected.
I turn then to the other headings.
The claim under the first group of disturbance costs totals about $45,000. Apart from the item dealing with construction costs which comprises a claim for some foundation work done on the site the claim relates to costs which follow the plans. If reason and moderation had been the essence of the exercise the value of the moneys outlaid in obtaining the original approved plans could have been retained by an outlay at the most on the evidence of a further $5,000. This is all I propose to allow.
Mr Stay said that the foundation work had been rendered useless through lapse of time - reinforcing has rusted. I am not convinced however, if that be the case, that the result is a natural and reasonable consequence of the resumption. The more likely conclusion and the one I adopt is that this flowed from the attitude of the claimant in not taking a course which would appear to have been available to it since December, 1986.
A similar vein permeates the next group of claims. In Harvey v. Crawley Development Corporation (1957) 1 All.E.R. 504 (C.A.) Romer L.J. at p. 507 said:-"The authorities to which our attention was drawn establish that any loss sustained by a dispossessed owner (at all events one who occupies his house) which flows from a compulsory acquisition may properly be regarded as the subject of compensation for disturbance, provided, first, that it is not too remote and, secondly, that it is the natural and reasonable consequence of the dispossession of the owner. "
The claim for the additional construction costs is based on the premise that because of ill health Mr Stay has gone out of building and he has allowed for inflation in costs over a two year delay. The first is too remote. The second, it would appear, could have been avoided.
The next item deals with the lowering of Frederick Street. The submission of Mr Stay is that because Frederick Street has been lowered by 600mm the building will have to be lowered by 600mm. Mr Hebron answered this in his evidence. His is the only professional opinion I have and it accords with what I expect a prudent person would do in the circumstances.
There is then a claim for legal fees and stamp duty on the purchase of alternative land. Such fees are not compensable where the land resumed is held for investment purposes. The matter is discussed fully in Harvey v. Crawley supra. The claim is inappropriate in the circumstances of this case.
The item following - capital gains tax - is somewhat novel and in my opinion is not compensable. It appears to me that the liability is merely an incident of ownership which runs with the land. In assessing compensation, it is the value to the owner; that is, what he could achieve in the market place and not the value of the land in his hands that is the criterion (Maori Trustee v. Ministry of Works (1959) A.C. p. 1 P.C.
Mr Stay then makes claim for some fencing which has apparently disappeared during the period in which the constructing authority was working in the area. Such is a matter which is not within the jurisdiction of this Court - see P. Joyce v. The Northern Electric Authority of Queensland (1974) 1 Q.L.C.R. p. 171 L.A.C.
In H.A. and S.B. Shann v. The Commissioner of Water Resources (1986-87) 11 Q.L.C.R. p. 194 L.C., the matter whether a claim for loss of an owner's time in consulting legal advisers, etc., was compensable was extensively covered and rejected. This claim is also rejected.
Then follows a claim for a number of costs alleged to have been incurred in the preparation of the claim and in the part hearing of the matter. The only evidence of professional costs incurred for the purpose of the formulation and lodgment of the claim filed in the Court in response to the order of the Court which for the purposes of the Act and for these purposes is the "claim" are those incurred in engaging the services of Messrs Lang Hemming & Hall. The fees are in the sum of $200. These will be allowed. All other costs follow the event - see Szirtes v. Pine Rivers Shire Council (1969) 36 C.L.L.R. 97; Merivale Motel Investments v. Brisbane Exposition and South Bank Redevelopment Authority (1984/85) 10 Q.L.C.R. p. 175 L.C.
I may conclude my remarks by saying that I have found no credibility in the claim. There appears to have been no attempt made by the claimant at any stage to act reasonably and no attempt was made before me to approach the assessment of compensation in the manner envisaged under the principles of the Spencer case.
I will assess compensation on the better of the estimates made by the respondent and with regard to the fact that the undertaking given by Mr Nicol on behalf of the respondent is on the record.
Accordingly, compensation under all headings is determined in the sum of Eighty-three thousand, two hundred dollars ($83,200).
Member of the Land Court
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