Pickering Nominees Pty Ltd v The Commissioner of Main Roads
[1990] QLC 15
•31 May 1990
|
BRISBANE.
31st May, 1990.
Re: Determination of Compensation -
Resumption for Road Purposes.
A89-7
Pickering Nominees Pty Ltd
v.
The Commissioner of Main Roads
J U D G M E N T
The respondent Commissioner of Main Roads resumed for Road Purposes two relatively narrow strips of land from larger parcels in Samford Road, Keperra for road widening purposes. Details of the resumptions are:-
Lot 1 on RP 196127, (formerly part of Resubdivisions 2 and 4 of Subdivision 2 of Portions 350 and 355) parish of Enoggera, containing an area of 3338 square metres - resumed on 29th November, 1980 and;
Lot 2 on RP 196126 (formerly part of Subdivision 1 of Portions 350 and 355) Parish of Enoggera, containing an area of 5681 square metres - resumed on 6th March, 1982
Falling for determination is compensation consequent upon these resumptions. Lot 1 on RP 196127 comprises part of a vacant rural homesite zoned "Future Urban" containing an area of 1.19 hectares, whilst Lot 2 on RP 196126 was part of a relatively large parcel of 14.6 hectares of which 4 hectares at the frontage to Samford Road is zoned "Future Urban" and 10.6 hectares at the rear is zoned "Extractive Industry".
Claims for compensation filed in the Court Registry are:-
Lot 1 on RP196127 - Value of land resumed $15,000
Disturbance $ 5,000
Total Claim $20,000
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Lot 2 on RP 196126 - Value of land resumed $25,000
Disturbance $15,250
Total Claim $40,250
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At the outset of the hearing of the matter, leave was sought and was granted to amend both claims as follows:-
Lot 1 on RP196127 Value of land resumed $14,100
Legal Expenses $ 250
Valuation Fees $ 825Total Claim $15,175
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Lot 2 on RP 196126 Value of land resumed $24,500
Disturbance $13,000
Legal Expenses $ 250
Valuation Fees $ 825
Total Claim $38,575
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The amount claimed for legal expenses and valuation fees as well as for disturbance in the Lot 2 on RP 196126 claim is agreed to by the resuming authority, so that, my task is to determine compensation for the land resumed, taking into consideration injurious affection if any, caused by the roadworks carried out subsequent to the resumption. This roadwork involved the widening of Samford Road in accordance with the purpose of the resumption.
Kenneth Esmond Pickering, who lives on the retention area of Lot 2 on RP196126 resumption was called in evidence. Mr Pickering has been an earthmover for many years. He told us that the parent area of Lot 1 on RP 196127 resumption (herein after called as it was referred to in evidence "the small area") has been used prior to resumption for extractive industry. He marked on a survey plan the areas excavated during former quarrying operations. Mr Pickering says that prior to resumption access to this land was available at several points along Samford Road and that after the carrying out of the roadworks, the actual access point to the retention area is now on its western boundary where there was one of the several access points prior to resumption. There is now an embankment 1.5 to 3 metres high on the road frontage and this, Mr Pickering claims, cuts off the former access to the old workings on the land.
Mr Pickering described the land resumed as being rocky and undulating but well drained land with the retention area rising to the rear to the foot of a mountain where very good northerly views are available through an arc of 180 degrees from west to east.
As for the parent parcel of Lot 2 on RP196126 (herein after called as it was referred to in evidence as "the large block") Mr Pickering described it as being level on the road frontage where it continues through a gully and then rises to the foot of the mountain. Prior to resumption access was available along the whole of the frontage whereas after the resumption roadworks, one-third of the frontage is now inaccessible with an elevated embankment about 2.5 metres high on that section. Access is provided at one near-centre point on the road and is referred to as the cutting. There are three dwellings on the large block retention area one of which is, as aforesaid, occupied by Mr Pickering. The other two dwellings are tenanted.
Valuation evidence in support of the claims was called from Stephen Ross Schafer, who is a practising Registered Valuer in the employ of R.S. Melloy Pty Ltd. Mr Schafer assesses compensation for the small block resumption using the "before and after" method of valuation as follows:-Value of land before resumption $42,000
Less Value of land after resumption $27,900
Compensation for resumption $14,100
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Mr Schafer considers the highest and best use of the small block parent parcel at relevant date was as an acreage homesite since there are a number of homes on large allotments to the east. In assessing the after resumption value, Mr Schafer stresses that consideration must be given to the effect of the road widening and construction as well as to the area of land taken. He says that main effect of the roadworks is to dramatically increase the height of the embankment along the road frontage and this severely restricts the already limited vehicular access to the site. He also points out that prior to resumption, the small block parent parcel already had a long frontage and limited depth. The resumption width is about 17 metres and this, he says, creates a greater imbalance between frontage and depth.
For both his before and after valuations of the small block, Mr Schafer relies mainly on three sales of rural residential sites in the Pine Shire situated in Buckland and Bunya Roads Everton Hills. Brief details are:-
Allotment 3 of Section 14 - area 1.075 hectares - sold on 12th January, 1981 for $45,000
Allotment 12 of Section 15 - area 1.411 hectares - sold on 10th September, 1980 for $36,000
Allotment 11 of Section 15 - area 1.583 hectares - sold on 10th July, 1980 for $42,000.
Mr Schafer contends that the small block has far superior elevation and local amenities than the sale lots but this is off-set by what he describes as the inferior nature of the subject land due to its infestation with granite boulders and the quarrying excavations.
As for his assessment of compensation for the resumption from the large block, Mr Schafer again relies upon the "before and after" method of valuation. Details are: -Value of land before resumption $155,500
Less Value of land after resumption $131,000
Compensation for resumption $ 24,500
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Mr Schafer says that as the large block has two separate zonings, the land can be divided as such for the purpose of valuation. The resumption takes land from the area zoned "Future Urban", and Mr Schafer describes the "Future Urban" zoned land as having, in the main, an even slope and being far superior to the rear "Extractive Industry" zoned land which is very steep. Mr Schafer accordingly contends that the resumption has no significant affect of the value of the "Extractive Industry" zoned land, and for this reason has disregarded the "Extractive Industry" zoned land in his valuation. The area of the "Future Urban" zoned area before resumption is about 4.2 hectares, and the after area is about 3.6 hectares.
Mr Schafer is of the opinion that his after value of the large block makes an appropriate allowance for the access problems caused by the resumption and also for the fact that the residences on the retention area are, post resumption, closer to the road traffic noise.
Mr Schafer describes the large block as being unique, and found it difficult to obtain strictly comparable sales evidence upon which to base his valuation. Sales of some assistance however are:-
Lots 1, 2, and 3 on Plan 167130 - area 15.61 hectares sold on 9th June, 1982 for $180,000. Situation Settlement Road, Keperra
This land was purchased by the Commonwealth Government, it has steep slopes with almost no level land, and has poor vehicular access and is subject to high voltage power transmission lines. Mr Schafer says the subject large block is far superior as the sale block is a the top of a range.
Subdivision 2 of Portion 388 and 389 - 3.586 hectares - sold on 25th March, 1983 for $110,000. Situation Yarrabee Road, Keperra.
Mr Schafer says this is an isolated vacant property with no made access.
Allotment 1 of Section 12 - 1.366 hectares - sold on 5th August, 1982 for $65,000. Situated Corner Bennetts and Bowers Road, Everton Hills.
This a vacant acreage homesite.
The respondent Commissioner called in evidence James Thomas Houghton who, at resumption date, was a Register Valuer in the employ of the Department of the Valuer-General (now the Department of Lands). Mr Houghton assesses compensation for the loss caused by the resumptions also using the "before and after" method of valuation as follows:-
Lot 1 on RP 196127 - Value before resumption $28,000
Less Value after resumption $23,000
Compensation for resumption $ 5,000
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Lot 2 on RP 196126 - Value before resumption $188,500
Less Value after resumption $180,000
Compensation for resumption
of land $ 8,500
Add compensation for
Injurious affection $ 13,000
Compensation for resumption $ 21,500
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Mr Houghton's before value of the large block is made up as follows:-
4 hectares "Future Urban" zoned land $18,000 per hectare and 10.6 hectares "Extractive industry" zoned land at $11,000 per hectare. His after valuation is 3.432 hectares "Future Urban" zoned land at $18,500 per hectare and the same value of the "Extractive Industry" zoned land. Mr Houghton has increased the hectarage rate for the "Future Urban" zoned land in the after resumption valuation because of its reduced area.
As for his assessment of compensation for the loss of land for the small block, no element of compensation for injurious affection is included. His assessment of $13,000 for injurious affection for the large block is the figure which has been agreed to by the instructing authority under the head of disturbance (more about this later).
Mr Houghton describes the nature of the land resumed from the small block as being very broken and forming part of a site which had been utilized for extractive industry and which contained several deep embankments and gullies within the resumed area. He says the soil composition is decomposed granite with large boulders with fair to poor drainage.
Mr Houghton has referred to four sales which he relies upon for both his before and after valuations of the small block. Brief details are:-Sale No. 1Subdivision 10 of Resubdivision 2 of Subdivision 2 of Portion 485, parish of Enoggera - 9282 square metres - Burke to Almond on 16th August, 1980 for $25,800. Situation 143 Upper Kedron Road, Ferny Grove
Mr Houghton comments that this sale block falls moderately from the road with a south-east to north-west cross fall. It has good frontage, drainage and access. It is a good homesite and a more private one than is the subject. It has limited outlook to the north-west. The subject has better elevation and is slightly larger that the sale block but has more difficult access and topography. Mr Houghton considers the subject small block to be slightly superior to the sale block in the before situation, and inferior to the sale block in the after situation.
Sale No. 2Subdivision 6 of Portion 861, parish of Enoggera - 1.525 hectares - Farrell to Chester on 23rd September, 1980 for $26,000 - Situation Moggill Road, The Gap.
Mr Houghton says that this sale block is above road level with a moderate to steep rise to the rear. It has good shape and elevation but has difficult access onto the site. Although the subject small block is smaller that the sale land and also has difficult access, he feels it has a better location and is superior to the sale block before resumption, and inferior to it after resumption.
Sale No. 3Lot 24 on RP 151948, parish of Kedron - 1.276 hectares - Mutual Acceptance Ltd to N. Skyring on 14th August, 1980 for $22,000. Situation Caneby Street, Everton Hills.
Mr Houghton says that this sale lot has easy access from Caneby Street, is of medium elevation and slopes gently from both the eastern and western boundaries to a small creek. It has fair drainage. It is situated in a fair residential area but it is some distance from transport and shopping. Mr Houghton considers the small block to be superior to the sale block both before and after resumption due to elevation and location.
Sale No. 4Lot 2 on RP 162881, parish of Enoggera - 3.152 hectares - Banjup Pty Ltd to Mull Constructions on 31st October, 1980 for $75,000 - Situation Chaprowe Road, Ashgrove.
Mr Houghton points out that the sale lot is larger than is the subject small block and adjoins a first-class residential development and facilities. Although zoned "Future Urban" at sale date Mr Houghton suggests the highest and best use of this sale land was "Residential A". It was rezoned to "Residential A" on 30th April, 1981 and since has been developed into 32 residential lots. The sale land rises from the road to the rear and has an easterly cross fall. It has a good outlook and Mr Houghton considers it to be overall superior to the subject small block as both a homesite or accommodation land.
Mr Houghton values the small block also on the basis of its highest and best use as being a dwelling site. He says access to it was always difficult. He points to the lack of reticulated water and sewerage available to it due to the elevation of the best land, and says access within the site to the highest part would be extremely difficult and costly to construct due to terrain and the boulders.
It is to be noted that Mr Houghton's Sale No. 4 was also relied upon to some extent by Mr Schafer. Mr Houghton is adamant that it is far superior to the small block.
Mr Houghton describes the nature of the land resumed from the large block as being broken and forming part of a site which has been quarried for decomposed granite boulders and fill material. It is generally above road level and rises towards the west and is cut by a gully and a waterhole. It also has, according to Mr Houghton, fair to poor drainage. He suggests the effects of the resumption are:-(a)to reduce the area of the owner's aggregation from 14.6 hectares to 14.03 hectares
(b)to create a small embankment several metres high along the frontage at the western side of the remainder
(c)to cause the relocation and some reconstruction of the internal road system on the remainder of the land due to the repositioning of original property vehicular access to a point some 75 metres to the west
(d)to cause three dwellings on the remainder land to be situated approximately 20 metres closer to Samford Road.
(e)to cause sand and gravel storage area on the resumed land to be re-sited on the remainder land.
Compensation for items (c) and (e) has been settled in the agreed sum of $13,000 under the head of disturbance.
For his valuation assessment, Mr Houghton relies upon three sales. Details are:-Sale No.1Resubdivision 5 of Subdivision 2 of Portions 350 and 355, parish of Enoggera -16.82 hectares - W. Seets Nominees to Homewood & MacLurkin on 15th March, 1979 for $150,000 or $9,000 per hectare. Situation Samford Road, Keperra.
Mr Houghton points out that this is an early date sale. However it adjoins the subject large parcel and is similarly affected by the Samford Road widening. The sale property is a "Future Urban" and "Extractive Industry" site as it the subject large block. It has similar soil composition and topography to the subject large parcel, but has been more heavily scoured by excavation. Mr Houghton considers the sale land to be inferior to the subject large parcel.
Sale No. 2 Lots 1-3 on RP 167130, parish of Enoggera - 15.61 hectares - Kirby to the Commonwealth on 9th June, 1982 for $180,000 or $11,500 per hectare. Situation Settlement Road and Yarrabee Road, Keperra.
Mr Houghton describes this sale land as a steeply sloping parcel falling generally from both north-east and south-west to a gully which traverses it in a north-south direction. Yarrabee Road is a formed gravel road, while Settlement Road has a sealed bitumen surface. The sale parcel is also traversed by an easement for high-tension power. Mr Houghton considers the sale block to be slightly superior to the subject land in topography and elevation. It is to be noted that this is one of the sales listed by Mr Schafer.
Sale No. 3Lot 1 on RP 189177, parish of Enoggera - 6.665 hectares - Statewide Investments Pty Ltd to Ellenhaven Pty Ltd on 9th December, 1982 for $117,500. Situation Samford Road and corner Settlement Road, Keperra.
Mr Houghton analyses this sale after valuing an old weather-board and iron dwelling upon the land at $10,000 to reflect a land value of $16,000 per hectare. The sale property is located only two doors from the subject large parcel and is similarly affected by the Samford Road widening. It has a corner location and has been also used for extractive industry. The sale land rises from the road frontage to the rear. It is zoned "Future Urban" and has similar topography and soil composition to the subject large parcel. Mr Houghton considers it to be overall superior to the subject land due to zoning.
Mr Houghton places most reliance for his valuation of the large parcel upon his Sale No. 3. He emphasises that it is in a corner position and took place close to the relevant date. His enquiries revealed that it was an arms length sale. It is located very close to the subject land.
It seems to me that the valuations prepared by Mr Houghton are more soundly based than those prepared by Mr Schafer. Certainly for the valuation of the large block, Mr Houghton's sales evidence is to be preferred. It is adjacent to and nearby whereas Mr Schafer's principal sales, apart from the common sale, are located some distance away. Added to that, his principal sales for the valuation of the small block are zoned "Residential A" and located in the Pine Shire, and I agree with Mr Houghton's comment that this is a superior zoning than that of both the subject blocks.
It also seems clear that the sale of Lot 2 on RP 162881 (the common sale) does not, prima facie, support either the before or the after values applied by Mr Schafer. It is clearly a much superior parcel of land which stood possessed of residential subdivision at sale date.
Much evidence was placed in evidence by the Claimant company about the increased access problems since the carrying out of the roadworks. This may be so, but what has to be determined is compensation for the taking of the land on the basis of the highest and best use of the land. The evidence is that the highest and best use of the small block is as a rural homesite, and of the large block as a rural homesite and an "Extractive Industry" site. This being so, there is really no need to have more that one satisfactory access point to each site. Nonetheless, as time goes by (and by now a considerable period has elapsed since the respective dates of resumption), it may be that the subject parcels, or such parts of them as may be able to be serviced by sewerage and water, will stand possessed of a potential for a higher use than as rural homesites. For this reason, it may be appropriate to award some compensation for the deprivation of access in terms of the loss in value of the retention areas for the changed access to the sites since the construction of the roadworks. This is best done by using the "before and after" method of compensation assessment, being careful to relate the loss to the value of the land at the respective resumption dates.
Before proceeding to the determination of compensation, I should add that Mr Schafer does not appear to have applied the correct principle of valuation in only valuing the "Future Urban" zoned land part of the large block, notwithstanding that it is common ground that the resumption does not affect its "Extractive Industry" zoned land. What falls to be valued, as did Mr Houghton, is the whole parcel before resumption and the whole parcel after resumption.
I find that fair and just compensation for the resumption of the land flows from the following exercises.Lot 1 on RP 196127:-
Value before resumption $ 32,500
Value after resumption $ 25,000Compensation for loss of land $ 7,500
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Lot 2 on RP 196126:-
Value before resumption - 4 ha
"Future Urban" zoned land $ 80,000
10.6 ha "Extractive Industry"
zoned land $116,600 $196,000Value after resumption - 3.4 ha
of "Future Urban" zoned land $ 65,000
10.6 ha "Extractive Industry"
zoned land $116,600 $181,000Compensation for loss of land $ 15,000
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To the above determinations, I add compensation in the agreed amounts for legal expenses, valuation fees and disturbance, so the award for compensation is summarized as follows:-
Lot 1 on RP 196127
Loss of land $7,500
Legal Expenses $ 250
Valuation Fees $ 825Total award $8 575
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Lot 2 on RP 196126Loss of land $15,000
Disturbance $13,000
Legal Expenses $ 250
Valuation Fees $ 825Total Award $29,075
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Section 28 of the Acquisition of Land Act provides that the Land Court may order that interest be paid on the amount of compensation determined by it, and that interest so ordered shall not be payable in respect of any amount of compensation advanced under Section 23 of that Act. I am advised in this case that an amount of $25,200 was advanced and received by the claimant company on 2nd May, 1985. I order the respondent Commissioner of Main Roads pay to the claimant company interest at the rate of 13.5% on the following sums and for the following periods:-
.on the sum of $8,575 for the period commencing 29th November, 1980 (date of resumption of Lot 1 on RP 196127) and ending on 5th March, 1982 (the day immediately preceding the date of resumption of Lot 2 on RP 196126)
.on the sum of $37,650 for the period commencing 6th March, 1982 (date of resumption of Lot 2 on RP 196126) and ending 2nd May, 1985 (date of advance)
.on the sum of $12,450 for the period commencing 3rd May, 1985 and ending on the day immediately preceding the date upon which final payment of compensation is made.
(C.H. Carter)
Member of the Land Court.
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