Pott v The Commissioner for Railways; Hermann v The Commissioner for Railways
[1989] QLC 8
•3 August 1989
|
BRISBANE.
3rd August, 1989.
Re: Claims for Compensation.
A89-17 and A89-18
Edmund Douglas Pott
-v-
The Commissioner for Railways
A89-19 and A89-20
Peter Ulrich Conrad Hermann
-v-
The Commissioner for Railways
J U D G M E N T
(Hearing at Bowen)
I have before me four Claims for Compensation consequent upon the taking by The Commissioner for Railways for Railway purposes for the construction of a diesel servicing depot, holding yard and access road at Merinda in the cases A89-17 and 19. The proclamation in respect of claims A89-18 and 20 shows the taking as being for Railway purposes for the construction of a diesel servicing depot, holding yard and deviation of the Collinsville Branch Railway at Merinda. The lands have been taken under the provisions of the Acquisition of Land Act 1967-1977 and the Railways Act 1914-1982. The dates of the taking of the lands vary. The areas taken and the final real property description of the land are published in the Government Gazette of the 14th September, 1985. Counsel requested that the matters be heard together and that I take a view. In their company I have seen some of the railway works, parts of the resumed land and such other lands as nominated by the parties. During the inspection we viewed workmen engaged in activities around the set of larger culverts. It was stated in evidence that a few weeks before the date of the hearing substantial works were put in train to overcome problems of erosion which were apparent. Many wagons of fill were brought in by rail from spoil derived from a railway cutting near Colinsville. A quantity of rock was purchased to fill the gabions now placed in situ to halt erosion. Many man hours and hired plant has been involved in the exercise.
I list hereunder particulars of the parcels which have been resumed, all are located in the County of Herbert, Parish of Kelsey:
Land taken from E.D. Pott
Claim A89-17 - Lot 1 on Plan 42547, being a plan intended for registration in the Office of the Deputy Registrar of Titles at Townsville, containing 7.024 hectares and being part of the land described in Deed of Grant, Volume N1085, Folio 243. Date of taking 29th January, 1983.
Claim A89-18 - Lot 2 on Plan No 42547, being a plan intended for registration in the Office of the Deputy Registrar of Titles at Townsville, containing 1.992 hectares and being part of the land described in Deed of Grant, Volume N1085, Folio 243. Date of taking 26th March, 1983.
P.U.C. Hermann
Claim A89-19 - Lot 1 on Plan 42546, being a plan intended for registration in the Office of the Deputy Registrar of Titles at Townsville, containing 24.88 hectares and being part of the land described in Certificate of Title, Volume N1212, Folio 70. Date of taking 11th December, 1982.
Claim A89-20 - Lot 2 on Plan 42546, being a plan intended for registration in the Office of the Deputy Registrar of Titles at Townsville, containing 2.27 hectares and being part of the land described in Certificate of Title, Volume N1212, Folio 70. Date of taking 26th March, 1983.
The amount finally claimed for the Pott's land under Claims A89-17 and A89-18 is in the sum of $76,619.82 made up as follows:
Loss of land:
Claim A89-17 $ 8,762
Claim A89-18 $ 2,746 $11,508
Injurious affection $60,750
Disturbance
Valuation Fees $ 1,500
Consultant Fees $ 661.82
Legal Fees $ 1,200
Loss of owners time $ 1,000 $ 4,361.82
Total $76,619.82
==========
The amount finally claimed for the Hermann lands under Claims A89-19 and A89-20 is in the sum of $261,879.82 made up as follows:
Loss of land $ 53,050
Injurious affection - land sold to Dobe $103,368
Balance land $100,000 $203,368
Disturbance
Valuation Fees $3,000
Consultants Fees $ 661.82
Legal Fees $1,800 $ 5,461.82
Total $261,879.82
=========
At the date of resumption Mr Pott owned, amongst other land, Portion 111 containing 249.489 hectares with the western boundary fronting the Collinsville Branch Railway line. The resumption has taken an area of 9.016 hectares in a triangular shape from the northwestern corner of Potion 111. The resumed area extends to a width of about 270 metres along the northern boundary and 650 metres in length. At the date of resumption Mr Hermann was the owner of Portion 109 containing an area of 414.65 hectares in an L-shaped parcel of land with the western boundary adjoining the Collinsville Branch Railway and the southern boundary adjoining the Pott's land. The total area resumed of 27.15 hectares is an irregular shaped strip of land taken along the western boundary for its full length of about 1400 metres to a width varying from 270 metres to 130 metres.
The land resumed from Mr Potts has been excised from original Portion 111, Parish of Kelsey containing an area of 249.489 hectares. This parcel is located about 14 kms southwest of Bowen with access by a bitumen sealed road. It forms part of an aggregation of some 699 hectares used by Mr Pott for cattle breeding and fattening. Parts of the aggregation have from time to time been used for growing for small crop and then used for growing fodder crops. It is joined on the northern boundary by Mr Hermann's land which was originally Portion 109, Parish of Kelsey containing an area of 414.65 hectares. The northern boundary of Portion 109 fronts the Bruce Highway in close proximity to the township of Merinda. There is also access from the Bowen-Collinsville road which connects to a gravel road of about 1.5 kms to the southeastern corner. The land was used by Mr Hermann for cattle grazing. The lands lie north of the Don River in a flood plain area.
As I have said these lands are in a flood plain area. In the past waters have flowed over parts of these lands until they reach the Collinsville Branch Railway Line built across the flood path. Water would pass through a number of small culverts and overflow the railway line. The case here is that the new works and railway line built since the resumptions will result in an increase in the level of inundation on the balance lands and an increase in the rate of flow making the lands unsuitable for cultivation. The claim is that, by reason of the resumptions, this balance lands are injuriously affected and should now be valued as land suitable only for grazing cattle. I have the benefit of evidence from expert witnesses about the flooding problems. It is convenient now to record some history of the area and the problems of flooding.
The Don River extends from the Clark Range in the south to the Pacific Ocean in the north and drains an estimated total catchment area of 1039 kms2 over a length of about 60 kms. Some history of the River is recorded in the study report by Ullman and Nolan Pty. Ltd., Consulting Engineers, of May 1989 titled Don River Railway Bridge and Flood Plan Hydraulics and Hydrology (Exhibit 23). The report was commissioned by the Commissioner for Railways to investigate the consequences of a proposed new railway bridge over the Don River. The report commences with a detailed description of the flood plain environment. And says:"The lower Don is an active prograding delta characterised by many overbank outflows and major deposition of sediment. The delta has a long history of recurring damage to valuable horticultural lands and occasional loss of life. It is noteworthy that much of urban Bowen and most of the rich fruit and vegetable production takes place on deltaic lands subject to major inundation and erosion. The study report then discusses and summarises the hydrology of the Don River Basin and the channel hydraulics and flooding patterns of the delta. The report concludes the proposed new railway bridge is not likely to injuriously affect the flood plain nor bring about undesirable consequences to the stream per se."
The report gives an historical background of the settlement of Bowen which was proclaimed in April, 1861. It records that the human history of lower Don and in particular the Delta owes much to the underground water supply and fertile soils which led to small farming. By federation, whilst Townsville had established its primacy as a port and an entrepot centre, Bowen had become a horticultural centre of pre-eminence. It records the growth in the area and the limitations of expansion unless adequate water is available. The fortunes of the farmers over the years have been influenced by the incidence of floods. There were 13 floods of significance in the period between 1869 and the present day. The floods of 1946, 1970 and 1980 caused the most damage but the report notes that this is probably more a function of the degree of development as much as hydrological cause. The flood of 1946 was the most serious because of the loss of 4 lives.
It records that there are ten outflows of the Don River onto the flood plain, 6 are on the left bank and 4 on the right bank. Commencing upstream the first outflow point is known as Potts Farm and this is the outflow which affects the subject lands. The last outflow from this point was the 1980 flood. It is recorded that in 1988 moderate flooding occurred in the Don River as a result of rainfall associated with the passing to the north of Bowen of cyclone Charlie. The discharge was only sufficient to cause outflows at Sandy Gully, The Webster-Brown Breakaway, and the "1946 Mouth". In 1989 moderate flooding also occurred in the Don River as a result of rainfall associated with the more intense cyclone "Aivu". The level of flooding was much reduced to that which occurred in 1988 although outflows did occur at the Webster-Brown Breakaway and the "1946 Mouth". It records that flooding associated with the Don River has significantly affected railway operations in flood time. It notes that in more recent years major railway construction works were undertaken in about 1956, in 1977 (Euri Creek Bridge) and in 1983-1984 with the construction of the Merinda Deviation on the Collinsville Branch Railway. The report says:"It is noteworthy that since the construction of the Merinda deviation there has been no major flooding event to produce outflows that would provide analysis of the effect of these new works on the flood plain hydraulics"
There is common agreement between the expert witnesses that when the banks of the Don River in a major flood are surcharged at Potts Farm outflow the floodwaters head in a northerly and northwestern direction. Flows which concern the lands under consideration are the flood waters which flow across and inundate parts of Portion 94, 109 and 111, parish of Kelsey. It is common ground that there exists on Portion 94 a ridge which splits the flow. Some of the flow is deflected to the northeast and the remainder is deflected in a northwesterly direction towards the Bowen Collinsville Railway. The Ullman and Nolan report at page 32 at 4.2 deals with Potts bank outflow and says:
"The outflow discharges across the Collinsville main road into the Peter's Flats area. The discharge is split by the new Collinsville railway line embankment before it makes its eventual outfall to the sea via Euri Creek, Dry Creek and Meatworks Creek north of Merinda. The exact nature of the discharge bifurcation is not known. Based on the length of inundation mapped by the QWRC in 1980 and the top of railway line levels taken from the Queensland Railways Design Plans, using the Manning's Equation for velocity and flow calculation................ a rough approximation of discharge across the Collinsville line is 740 cumecs. Flow through drainage structures under the line has not been considered. The discharge crossing the Collinsville line eventually passes over the Bruce Highway and the North Coast Rail link between Merinda and Euri Creek."
It is common ground that flood waters cover the lands which concern me here either wholly or in part in times of high flood when water has broken out in the Pott's Farm overflow from the Don River. There has been flooding in the Don system in 1988 and 1989 which resulted in outflows at other points downstream from Pott's Farm but there was no outflow from Pott's Farm.
Mr Pott says that he has been the owner of Portion 111 for a period of about 25 years during which time he has worked the land personally. He is now 66 years of age, he was born in Bowen and has resided on the family aggregation all of his life with the exception of 4 years war service. He says that he has witnessed all of the floods from the Don River. Mr Pott says that when the Don breaks its banks water spreads onto the subject land and eventually splits around a higher section of land, half of the flow going towards the Sandy Creek area to the west and the other half going in the northerly direction towards Peters Flat.
He gives some details of his business activities as a cattleman. He runs about 500 brahman cattle and an area of about 120 hectares scattered around the aggregation is cultivated. Apparently his procedure is that he clears areas of land and installs the facilities of pumps and piping to permit irrigation. He then arranges with farmers to take over this land. They are responsible for cultivating and fertilizing to bring the marginal land up to a good quality for the growing of crops. He does not charge any rent for the use of the land nor is any amount paid by him to the farmers. They have the use of the new land for some years and eventually it is taken over by Mr Pott. At that time the farmer will plant a fodder crop which is then watered by Mr Pott until the crop can be harvested and rolled into large bales for stock fodder. It is only because of this supplementary feeding that he is able to carry such substantial numbers of cattle on the aggregation.
There is a paddock of about 26 hectares located on the higher ground on the western side of Portion 111 which had been farmed in the manner described. As best I can understand from the evidence this area was being cultivated for small crops for about 7 or 8 years and then the farmer planted seed for a fodder crop for Mr Pott who kept it watered with the fodder eventually being harvested.
Mr Pott says that this paddock extended to about 20 metres from the old railway fence and about 2 hectares of the cultivated land has been taken by the resumption. He says that this cultivation paddock has never been inundated with flood water but flood waters have passed along the areas between it and the railway fence.
Following Notice of the proposed resumption of part of his lands he formed the opinion that the proposed works and raising of the railway line would cause major flood problems and there would be a real risk of flooding on the agricultural land previously flood free. He ceased farming this 24 hectare paddock when the Railway Department commenced to install their works. He does not intend to use it again for fodder crops. He is of the opinion that in the next flood of the Don River this area will flood and will be severely eroded. He has set up a further farming operation on an equivalent area of his lands to the east of the paddock referred to. To do this it was necessary for him to drill for water and to set up another irrigation plant, underground mains and piping. Mr Pott says that the irrigation pump and mains which were used for the original paddock are now virtually worthless except that he could chose to irrigate the natural grasses for feed for the cattle and to combat soil erosion. He says that in the result he has suffered the loss of a properly set up small crop farm fully cleared, laser levelled, cultivated, fertilized and watered and now has an area which can only be used for grazing.
Mr Pott speaks of his experience with flooding over the years. He says that the home farm was situated in the immediate vicinity of the outflow from the Don River known as Pott's Farm outflow. He has been present when four significant floods have overflowed at his outflow point. He believes that he knows the pattern of flooding in this particular locality as well as anyone in the Bowen District. He recalls that in past floods the run-off water crossed part of the area to be resumed and then over the railway line as it then existed. Water would run across the top of the line for a distance over a length of about 20 metres. There were a number of small culverts installed in the Railway line and the water ran over the line at this point for a distance of about 200 metres northerly. He can recall that the boundary fence at such times has been flattened. He says that the Don River is a fast flowing River and in times of flood the waters wash and flow vigorously. He says that as a result of the 1980 flood a number of farms were completely ruined by erosion and washing. In 1980 from the overflow at Pott's Farm his next door neighbour on the eastern side who had farmed land in the overflow path of the River experienced severe washing and eroding of his lands. He says that as a result substantial topsoil has been lost on that property which was levee soils with a significant depth of topsoil. Because of his knowledge of the area he has bitterly opposed the proposal to construct a diesel servicing depot and holding yard in the flood plain. He believes that the works will dam the natural overflow and inundate the farms in the immediate vicinity. Numerous conferences were held and some concessions made but not all of his proposals were accepted by the Railway Department. He says that the level of the Railway line has been raised and the resumed land has had significant filling along his boundary. Previously water would run across the resumed area into a depression between his land and the existing railway line and run northerly to a culvert, which then existed, and then run away through this area. He believes that, as a result of the building up of the land the water does not run away and is backed onto his land.
There has not been a major flood since 1980 but at the end of 1987 there was a heavy downpour of between 90 mm and 100 mm. Water backed over much of the agricultural paddock which he had thrown out of production and he believes that this supports his conclusion that, in the event that the river breaks its bank at Pott's Farm, the whole of his paddock would be subject to flooding and erosion. He presents a series of photographs showing some of the waters which inundated the land in the downpour. He says that it was moving north at a fast rate and eventually found its way under the big culverts which now exist while some of the water would move to the west. The majority of the storm water had cleared in about three hours. He acknowledged since that downpour further works have been done on the culverts and agrees that this should clear the water more quickly and any back-up of water would remain for a much shorter time but adheres to his view that the risk of erosion is too great to undertake any cultivation.
In cross-examination he was asked about an adjoining property located closer to the Pott's Farm outflow with true riverbank or levee soils with a significant depth of topsoil. He says that this has been cultivated for many years going back to at least 1925. There was a period of some 12 to 14 years when it was allowed to lie fallow but since has been cultivated regularly for a number of years and presently has a corn crop upon it. This adjoins land owned by him but he has never farmed this area, he keeps it for grazing. He will not risk the loss of top soil which he says is evident on that neighbour's cultivation.
Evidence was given by Mr P.U.C. Hermann in support of his claim for compensation. He is a grazier by occupation and presently resides at Pentland. In 1982 he was the owner of Potion 109 Parish of Kelsey containing 414.651 hectares which was used mainly for grazing cattle. At that time there was not a great deal of land suitable for farming purposes which had not already been developed. He decided to subdivide Portion 109 into 3 lots for sale for farming purposes. He states that his intentions were to undertake farming himself if he did not sell. He says that in 1981 he had installed a 20hp turbine pump on the area subsequently sold to Dobe and tests of the underground water supply satisfied him that there was a sufficient supply there to irrigate about 40 hectares of farming land. Mr Hermann had previously farmed an area of about 10 hectares of land east of the parcel which was later sold to Dobe and had developed for farming an area of about 10 hectares on the northern part of the original portion.
On the 7th January, 1982 he entered into a contract for sale with William Thomas Gordon Dobe and Lennette Anne Dobe to sell to them an area of 153.88 hectares from the parent parcel fronting the railway line for the sum of $155,000 ($1013/ha). Mr and Mrs Dobe entered into possession prior to settlement and commenced to clear part of the land for cultivation including the laying down of irrigation mains and pipes. He was then advised by his solicitor that the plan of survey subdividing the parent parcel into 3 lots could not be registered. A pencil caveat was noted on the relevant Certificate of Title of the intended resumption by the Commissioner for Railway. Mr Hermann was advised that, unless some arrangements could be made with the Railway Department, the registration of the plan could be held up for a substantial time and the sale to Mr and Mrs Dobe could not be finalised. After conferences with the Department an agreement was reached that, upon Mr and Mrs Dobe indemnifying the Department against any claims by them for compensation, the Department would allow the sale to proceed on the basis that any claim for compensation would be made by him as the Registered Proprietor at the time of resumption.
Mr Hermann conferred with Mr Dobe and informed him that he only wanted the matter to be finalised in the same way as it would have been finalised if the railway resumption had not intervened. He offered to reduce the price which Mr and Mrs Dobe had agreed to pay by the equivalent amount for the area of land being resumed by the Railway Department based on the purchase price agreed upon. Mr Hermann informed Mr Dobe that it would be suitable to him if he received the amount for the area resumed together with any interest that was paid thereon when compensation was paid. This was acceptable to the purchasers. They further agreed that the claim for compensation would proceed in the name of Mr Hermann but that Mr and Mrs Dobe would have the benefit of any amount of compensation received over and about that original rate per hectare in the sale other than in respect of compensation for potential damage to the balance lands of the vendor retained by him which compensation should be paid to Mr Hermann.
Mr Hermann subsequently offered the remaining lands (now Lot 1 on RP 739183 containing 129.4 hectares and Lot 2 on RP 739183 containing 128.6 hectares) for sale by putting the matter in the hands of an agent. He sought advise from agents and farmers as to appropriate figures to be placed on the Lots for sale. In his written statement he says:-
"Based on the price which Mr and Mrs Dobe had agreed to pay for the block which I had sold to them I put Lot 2 on the market at a figure of $200,000 and Lot 1 for $150,000. These prices involve the land value of approximately $1,100/ha which was more that Mr Dobe had paid. In the case of Lot 2, that particular block had significant improvements on it apart from the developed farming land including a packing shed, a machinery shed workshop, an ablution block, two 6hp irrigation pumps, a water pressure pump and stock yards. I had become aware during 1982 of potential problems for not only the land which I had sold to Mr and Mrs Dobe, but also my retained lands as a result of the works being constructed and to be constructed by the Railway Department as a result of the resumption of part of my lands. I was aware from the 1980 flood that flood run-off waters from the Don River flowed through Lots 1 and 2 of my property. However, I then was aware that waters which flowed through the southern end of Lot 3 of my property, the lands sold to Mr Dobe, would be blocked by the new Railway construction. Although it is not certain where these waters will be diverted to , it seems clear to me that they will be diverted across Lot 3 below the ridge which exists on the south-eastern corner, and that these waters will probably then run across that Lot onto my lands being the northern part of Lot 2 and Lot 1. These diverted flood waters then will run into the flood waters which flow through my block easterly of the ridge in Lot 3. Also I am concerned lest the waters that run through the Don River run-off depression running through Potion 94 and Portion 111 may be so backed up that additional flood waters will run through Lots 2 and 1 over and above flood waters which used to run-off in that area prior to the Railway works being constructed.
Having become aware of the problem of increased flooding on my lands Lots 1 & 2, I realised that this was probably the reason why I was not able to sell them at the prices I had asked. I had been negotiating with Messrs Brooker and Mr Taylor to purchase the Lots. I can recall that the question of flooding was discussed in relation to the lands and I am aware that Mr Brooker at least with his family, was concerned about the increased flooding in the area because of the Railway works. I felt because of this I would have to reduce my prices and I reduced the price on Lot 2 to $150,000.00. I also reduced the price of Lot 1 to $100,000.00. Although I was not aware of it at the time, I have since become aware through Mr Dobe that one farmer at least was interested in purchasing Lot 2 for $200,000.00 but he had decided not to because of the problems of flooding associated with the block. I subsequently negotiated to sell Lot 2 to Mr Taylor in March, 1984 for $150,000.00. At the same time, I negotiated the sale of Lot 1 to Messrs Brooker for sum of $100,000.00. Included in the sale to Mr Taylor was a Special Lease containing an area of 101 hectares approximately. However a value of $5,000.00 only was attributed to this block because of its tenure and more particularly because of the fact that it would be very very badly affected by flooding. It can be seen then that I accepted less money per hectare for both Lots 1 and 2 than I did for Lot 3. The reason that I was able to sell Lot 3 at a higher price in my view, is that this sale was negotiated prior to anyone in the area becoming aware of the Railway resumption and works. I say this because the market was fairly stable at that time and the country throughout the three Lots was fairly similar although Mr Dobe's land was not prior to the resumption as badly affected by flooding as Lots 1 and 2.
In cross examination Mr Hermann says that he was on the lands after the 1980 flood with his cattle in the area now known as Lot 1. He took the cattle through Lots 1 and 2 and there was evidence of floodwater having been over all of those areas but he could not estimate what depth of water had covered the land as he was there the morning after the flood. He agrees that he had no evidence to suggest that Lots 1 and 2 are going to be adversely affected by the railway works. He says that before the final contract agreements were made by Mr Dobe they both could see a lot of problems with that parcel of because of the railway resumption but Mr Dobe agreed to his suggestion on how the price should be reduced.
Evidence was given by Mr William T.G. Dobe who resides in the Delta district of Bowen and is a farmer by occupation. He recounts how an agreement was entered into on the 7th January, 1982 by his wife and he to purchase Lot 3 from Mr Hermann. They had entered into possession of the lands after signing the contract and before they were aware of the proposed railway resumption. With the consent of Mr Hermann work had commenced on clearing, levelling and developing about 12 hectares, an electric turbine pump had been wired in and about 600 metres of 10 cm PVC piping and 800 metres of 15 cm PVC piping installed.
They were anxious for the sale to be finalised and an indemnity was given by them as purchasers to the resuming authority that no claim for compensation would be made by them because of the proposed resumption. Mr Dobe says Mr Hermann agreed that, as they were borrowing money for the purchase and not getting some of the land to use at that time, the price would be reduced by a pro rata amount based on the overall price. It was agreed that the purchasers would pay this amount with interest, if any, when the resumption moneys came through. As far as he was concerned any compensation paid by The Commissioner for Railways would be their property subject to paying the reduction in the purchase price plus interest applicable. Mr Dobe says it was agreed that he should have the conduct of the resumption proceedings in Mr Hermann's name but Mr Hermann would receive compensation which was payable in respect of the flooding which they expected would occur on Mr Hermann's retained land because of the Railway works.
Mr Dobe says his intention when acquiring Lot 3 was to farm the whole area. This would not be on a continuous basis but an area would be used once or twice and then left for 3 or 4 years to reduce the risk of disease being encountered in tomato plants in the area. It was his intention to mainly grow tomatoes on this particular block. He says by 1987 he had cultivated and developed the whole of the area which was purchased. While it was never all farmed in any one season by the end of 1987 the whole of the farm had at some time been used for growing crops.
He formed the view that his best prospects of obtaining additional underground water on this land lay in the resumed area. He says the Railway Department has now two equipped bores on the resumed area. He believes that he would have been able to irrigate 30 hectares with the water from this supply if the land had not been resumed. He does not know how much water is pumped by the Department. He says that 30 hectares is sufficient for a farm growing tomatoes in the area and many farms are smaller than this. In fact the evidence reveals the departmental bores have produced a small supply of water quite inadequate for irrigation purposes.
His enquiries before purchasing this land revealed that all of it was flooded in the 1980 flood with the exception of about 8 hectares. He believes that this flooding was contributed to by the Railway line which had been there for many years. He says that having seen the new works he has no doubt that the flooding problems on his land and surrounding lands will be greatly magnified even though the original proposal has been modified to a significant extent so that approximately 12 times the original culvert space is now available. He says since the construction of the works the culverts have silted up to a very large degree so that their effectiveness is significantly reduced. The whole of the resumption area has been raised a significant level above his land making the resumed area act as a dam. There is a thick growth of grass and prickly acacia and other trees in the area in what should act as a flood run-off channel. He recalls the heavy rainfall in the Christmas 1987 period already referred to by Mr Pott and recorded in this judgment. While the water inundated part of Pott's land it did not affect his land. He believes that the velocity of the run-off through the area will cause severe scouring and damage to their land and talks of some rut erosion. In cross examination he says he has cultivated the land near the new Railway fence to within 6 or 7 metres of that fence, and has cultivated right up to the fence to get rid of noxious weeds. He says that if he had been putting this land on the market at the date of resumption he would have sought a figure of $1,500/ha.
Evidence was given by Mr T.L. Fiedler, a Civil Engineer and Hydrologist of Sinclair, Knight and Partners. His brief on behalf of the Claimants was to assess the impact of the works at Merinda Railway Depot of flooding in the area of Portions 111, 94 and 109 Parish of Kelsey. To assist him in his conclusion he has had regard to a report of the Water Resources Commission of January, 1980 on "Don River Euri Creek Flooding", the report of McIntye and Associates of March, 1983 on "Alternative Designs for Stormwater Drainage for Merinda Depot and Yard." and the report of Ullman and Nolan Pty. Ltd. of May 1989 on "Don River Railway Bridge and Flood Plain Hydraulics and Hydrology." He has also conferred with Mr Pott and Mr Dobe to assist him in his final conclusion. Mr Fiedler in his report sets out the pattern of flooding which occurred in the 1980 flood and his conclusions on the effects on the lands here in any future flood of this magnitude having regard to the construction of the new works. In summary it is fair to say that, he concludes that because of the new works, the level of flooding experienced would be increased overall of these lands. This increase in water level will increase the area of inundation with the area most affected in the Pott's land being the land which had been developed for agricultural purposes along the ridge which forms the southern boundary of the major flood way. He believes that a substantial part of the ridge on Dobe's land would be underwater where once it was flood free and that the lands sold by Mr Hermann to Taylor and Brooker would carry a greater depth of water in a flood. There will also be increased flow discharges which would increase the risk of erosion.
He does not agree with all the data which he has considered. He has noted the flood patterns as indicated in the Water Resources Commission Plan K1-T-1378. While this would indicate that part of Pott's cultivation was underwater in the 1980 flood he does not accept this as being correct. He agrees that the new works are designed for a 1 in 50 flood. He is of the opinion that the new works will increase the level of flooding by 0.4 of a metre. He acknowledges that the 1980 flood was the largest flood since 1946 and that all of the Dobe property with the exception of the ridge was inundated in 1980.
Valuation evidence was given by Valuer Mr A.V. Matson, who says that, as a result of the resumption, Mr Pott has lost 2 hectares of irrigated cultivation land and 7.016 hectares of grazing land. He has valued the cultivation land at $4,000/ha and the grazing land at $500/ha to arrive at a total for the loss of land at $11,508. He includes in his valuation an assessment of the injurious affection to the balance land. From information supplied to him he accepts unconditionally that the 26.3 hectare cultivation paddock herein referred to had never flooded prior to the new railway works. He says that, because the risk of flooding is immeasurably higher after the completion of the railway works, this paddock prudently should only be used for improved pasture. He adopts a rate of $4,000/ha for the cultivation land in the before situation and a rate of $1,500/ha for the paddock in the after resumption situation to arrive at a claim of $60,750 for injurious affection. Mr Matson says that in these exercises his main bases of valuation are two sales by the Public Trustee to Jurgens in March, 1983. While there were sales to different purchasers it was really one transaction and he has applied his analysis of the sale on this combined basis. Mr Matson says that he had not seen the land as at the date of resumption. The railway works had been done when he carried out his inspection.
Mr Matson says that, as a result of the resumption, Mr Hermann suffers the loss of 27.15 hectares of land part of which had been cleared and stick picked with this work having been carried out by Mr Dobe. He has valued 24.65 hectares of this land in its state of development at $2,000/ha and 2.5 ha of uncleared land at $1,500/ha to arrive at a total of $53,050 for the loss of land. He then deals with the question of injurious affection to the land sold to Dobe. He says that while prior to the resumption most of the land was subject to some inundation in large floods the land is now in danger of higher levels of water, increased flow and scouring. He believes after the next major flood the whole of the balance of Dobe's land for all practical purposes will be badly scoured and reduced to a parcel only suitable for improved pasture. He values 40 hectares of this land which had been cleared to cultivation at $3,000/ha and the balance of 86.736 hectares of land not cleared at $1,000/ha to arrive at a before resumption value of $206,736. In his after exercise he assesses the cleared land as improved pasture land at $1,500/ha and the balance as being suitable for development for improved pasture at $500/ha, for an after valuation of $103,368. Loss thus is the sum of 103,368 and this is the amount he claims for injurious affection.
In his written valuation in dealing with the lands subsequently sold to Brooker and Taylor Mr Matson adopts the asking price when these were placed on the market as a before resumption value for a total of $350,000. In the after situation he adopts the actual selling price of $250,000 to arrive at his valuation for injurious affection of $100,000. He says that, while these lands before resumption were subject to inundation in defined areas, after resumption the increase flow and volume of water will reduce the use of the land to improved pasture. Based on his discussions with property owners he found that it was accepted in the area that there was a far greater risk of flooding after the works were carried out than existed previously. He has not spoken to the purchasers Brooker and Taylor about the sales and it is not suggested by him that they purchased the land to develop into improved pasture for grazing.
It was put to him that for the Dobe land he is claiming injurious affection of $103,368 on a parcel of land purchased by Mr and Mrs Dobe some 12 months previously for $124,319. He says that some allowance must be made for the development work done by Mr Dobe and because Mr Dobe had unlocked the potential in the land for agricultural pursuits and he was entitled to the increase in market value for the work he had done. He does not concede that in money terms Mr and Mrs Dobe retain a parcel of land of 126.7 hectares for a little under $21,000 and that this would be the cheapest parcel of land ever available in the area.
The case for the Respondent is based on the valuation of Mr M.T. Linnan, a Valuer in the employ of The Valuer-General. As such he has carried out valuations in the Bowen area for the purposes of The Valuation of Land Act and for other purposes since 1979. In dealing with the Pott's land he says that the resumption has caused the loss of 2 parcels of land totalling in area 9.016 hectares of which 2 hectares had been cultivated. This loss occurs from a parcel of land totalling 249.489 hectares in area. He sees the parent parcel as being a good arable/grazing proposition which lends itself to development at minimal cost. It is well located in relation to services and amenities and has a good all weather access. Based on sales he has arrived at a valuation of $17,000. He attributes a value of $3,500/ha for the 2 hectares of irrigable/arable land and $1,400/ha for the 7.01 hectares of balance land. He has used the same sales evidence as used by Mr Matson.
Mr Linnan says that he has given consideration to the claim for injurious affection. He has accepted advice from Engineers of the Queensland Railways, from the Engineer from McIntye and Associates and from the Design Manager of Mimets Development Pty. Ltd. the constructing authority and has reached the conclusion that the subject land is no worse off after the resumption than it was in the before situation. In dealing with the parcel of land which Mr Pott no longer cultivates he is of the opinion that this land could still be cultivated and would be cultivated if it was in the hands of someone else that required the land for cultivation purposes. He says he cannot see it is any worse off than any other flood prone block in the Bowen locality.
In dealing with the land resumed from Mr and Mrs Dobe he says that the loss of the 2 parcels of land totalling 27.15 hectares is from a total parcel of 153.88 hectares. He says that it is one of the newer farms developed from lands considered only as marginal arable. The main advantage is that it is relatively inexpensive to clear and level for cultivation. It is well located in relation to services and amenities but has the disadvantage of a gravel access road. He has valued the area resumed at $1,500/ha or a total of $41,000. He makes no allowance for injurious affection. He says the parcel has always suffered some inundation as a result of water backing up from the old Collinsville Railway Line and he cannot see that the balance land is any worse off after the resumption than it was before. He cannot agree with Mr Matson that the land is now only suitable for grazing or improved pasture. He says his opinion is supported by the actions of Mr Dobe who is a farmer who has continued to farm the land adopting proper farming practices for land which could flood. He says that Mr Dobe has stated that in threatening times of the year from December to March-April he places a cover crop on the cultivation land to hold the soil and for the remainder of the year he would farm those lands.
Mr Linnan says he is well aware of the damage which can be caused by flooding. Following the 1980 flood he inspected farming properties throughout the delta area which had suffered severe damage. Most of the owners of these properties have gone back to cultivation since that flood. The property which had been seen on the inspection which adjoins other lands owned by Mr Pott is presently cultivated and growing a corn crop. He believes this is one property in the Bowen District which would receive the full velocity of any flood over the banks and it would be more disadvantaged than either of the resumption properties. His remarks as to cultivation are also applicable to the lands sold by Mr Hermann to Taylor and Brooker. He says that since the 1980 flood parts have been farmed. He says that the market for these types of land for cultivation purposes has shown a steady increase as people are moving further out to work disease free land.
In cross examination Mr Linnan says that prior to Mr Dobe purchasing the land from Hermann other parties were leasing land of similar quality for cultivation and planting of crops. He is of the opinion that most of Pott's land could be farmed and that this is its highest and best use. He acknowledged that there are some low areas which could carry a quantity of water in the wet season but he says that proper farm management practices in the riskier parts of the year keep a solid cover over flood susceptible land to assist against erosion. He knows of farmers who are farming similar types of depressions as those found on Mr Pott's land.
Mr Linnan says that he interviewed both Mr Taylor and Mr Brooker after they had purchased the lands previously owned by Mr Hermann. In cross examination it was put to him that both of the purchasers expressly mentioned their concern of the increased flooding caused by the new Railway works. He denies this. He refers to his notes of a record of interview with Mr Brooker of the 18th February, 1985 which records that the purchasers were two brothers who had mainly leased country for small cropping from a Mr Woodhouse. They considered it a better proposition to farm their own country. The block they purchased was considered a risky one by locals because of the threat of losing soil in floods. At the date of sale only 10 acres were cleared for cultivation and the balance land was lightly timbered mainly by Chinee Apple. The block at the date of inspection was cleared except for a few acres in the windmill corner which is being used to run a few head of cattle. His notes on the Taylor purchase record that Mr Taylor had previously farmed leased country with soil similar to that of the sale. Mr Taylor considered it to be a better proposition to work his own country. He purchased the block with no guarantee of there being any water on it however he has found water on the block and is quite happy with the purchase price.
In cross examination he was asked of his knowledge of flooded land. He says he inspected farming lands for flood damage after the 1980 flood for the purposed of amending, if necessary, valuations made under the Valuation of Land Act. He said adjustments were made where silt piles had been deposited on farms or where big scouring had occurred but he did not make any allowance because a volume of water had past over the farms.
Mr M.A. Ewart, a Civil Engineer and a Director of the Consulting Engineering firm McIntye and Associates Pty. Ltd. gave evidence. His firm was responsible for the drainage design in the construction of the new Railway Depot at Merinda. For this prospect Mr Ewart investigated the effects of the 1980 flood and the general flow of water. In company with a Surveyor in October, 1982 he picked up debris levels which were still evident after the 1980 flood in the lands under consideration. He had regard to the 1980 report and maps of the Queensland Water Resources Commission, a 1980 Report of Ullman and Nolan. He had discussions with landholders and completed surveys on site. In the field he conferred with Mr Pott who expressed his concern about ponding which occurred on his agricultural land due to the frequent blockage of the old small sized culverts under the Railway line. Mr Pott told him that these culverts would cause ponding even in relatively minor rain without any River overflow. Mr Pott explained that the land would be ponded for up to 24 hours and he indicated a spot which had been reached by the water level. He says that he heeded Mr Pott's concerns in considering that larger culvert capacity was necessary to eliminate the problems of ponding. He says that the new Railway works were completed by early 1984.
His brief in appearing before the Court was to give the matter consideration and answer certain questions asked by Mr Linnan for valuation purposes. In summary his answers are that the new line is higher than the old line but substantial hydrological improvements were incorporated in the design to counteract the affect of higher levels. The capacity of culverts in the new line is substantially greater than the capacity of the old culverts. He concludes that for minor floods the floods will be contained entirely within the Railway drainage system and will not back-up onto the subject lands. For major floods up to the design 1 in 50 year event the extent of back-up will not exceed the back-up produced by the 1980 flood. There would be some increase in flood level for floods in excess of a 1 in 50 year event but virtually the whole of the flood plain would be inundated in such a case whether the Railway Depot had been built or not.
Mr Ewart believes that in the 1980 flood the original Railway line would have quite a significant body of water across it going north towards Merinda. He believes that Dobe's land would only have an island standing out of the water where his sheds are and that the Brooker and Taylor land would have been totally underwater except for some very isolated islands. He acknowledged that he had on the Court Inspection seen some evidence of erosion but believes that the works now being undertaken with maintenance will overcome this problem.
Evidence was given by Mr F.J. Crawford a Civil Engineer in the employ of Queensland Railways. He has prepared a report to attempt to evaluate the various reports available on the flooding on the Don River and qualitatively assess the effect on the flood plain of the Merinda Depot. He says that it was at his suggestion to the District Engineer that works have recently been undertaken at the entrance to culverts where road levels have been increased and gabions installed. He is unable to give an estimate of the cost of these new works. Much of the material was available at other sites and was moved without costing but he agrees that the works are substantial. His conclusions are that the new works will not adversely effect the balance lands of the claimants.
In his address Mr Hilton, Counsel for the respondent, submits that Mr Fielder, in his report, is considering the effects of a 1 in 50 year flood to reach his conclusion that the lands should not be used for cultivation because of the risk of erosion. The facts are that Mr Dobe, since purchasing the land, has continued to cultivate the land and grow small crops but planting ground cover on the land at times of high risk as good farming practice. The case for Mr Dobe is that it should only be used for grazing of cattle and he should be awarded compensation on that basis with the amount claimed almost as much as he paid for it.
Mr Webb, Counsel for the claimant, submits that the issue here is whether this railway construction has caused an alteration in the flow patterns in the subject lands in times of rainfall, minor flooding and major flooding. If it has caused an increased in those areas has that caused any damage to the landholders? He says that the evidence establishes that there is a higher level of water, that it is deflected north travelling across Dobe's land and to a smaller extent into the lands of Taylor and Brooker. As to Mr Dobe continuing to farm the land he submits that this should be disregarded and that he should be compensated on the basis that this is not the highest and best use of the land and it should be left for grazing purposes.
By Section 20 of the Acquisition of Land Act the Court, in assessing the Compensation to be paid, shall have regard not only the value of land taken but also the damage, if any, caused by the severing of the land taken from other land of the Claimant and/or the exercise of any statutory powers by the constructing authority otherwise injuriously affecting such other lands. Compensation is to be assessed according to the value of the estate or interest of the Claimant of the land taken on the date when it was taken. Where severance has occurred compensation is often assessed on a before and after method of valuation but in the final result it comes back to endeavouring to determine what a prudent vendor and a prudent purchaser would regard as a fair price for the land on a particular date both before and after the severing. As was said by Isaacs J. in Spencer -v- The Commonwealth 5 C.L.R. 418 at page 440
"The facts existing on 1st January 1905 are the only relevant facts, and the all important fact on that day is the opinion regarding the fair price of the land, which a hypothetical prudent purchaser would entertain, if he desired to purchase it for the most advantageous purpose for which it was adapted. The plaintiff is to be compensated; therefore he is to receive the money equivalent to the loss he has sustained by deprivation of his land, and that loss, apart from special damage not here claimed, cannot exceed what such a prudent purchaser would be prepared to give him. To arrive at the value of the land at that date, we have, as I conceive, to suppose it sold then, not be means of a forced sale, but by voluntary bargaining between the plaintiff and a purchaser, willing to trade, but neither of them so anxious to do so that he would overlook any ordinary business consideration. We must further suppose both to be perfectly acquainted with the land, and cognizant of all circumstances which might affect its value, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or inconveniences, its surrounding features, the then present demand for land, and the likelihood, as then appearing to persons best capable of forming an opinion, of a rise or fall for what reason soever in the amount which one would otherwise be willing to fix as the value of the property."
There has been a great deal of technical evidence presented in this case but it is important always to remember that in assessing compensation it is the value to the owner; that is, what he could achieve for it in the market place and not the value of the land in his hands that is the criteria
"If the owner be regarded as a hypothetical purchaser of the land to be valued wishing to buy it for subdivision he would not be expected to pay more for it than any other purchaser buying for the same purpose" (Maori Trustee -v- Minister of Works 1959 A.C. 1; (1958) 3 All E.R. 336 at p343F (P.C.)).
Putting aside for one moment the value of the land actually resumed from the parcel sold to Mr Dobe he was, at the date of resumption, left with a parcel of 126.73 hectares for which he paid $124,320 by an agreement originally signed in January, 1982. Mr Matson is of the opinion that this balance land at the date of but before resumption was worth $206,736. Of the total area some 87 hectares was standing timber while the remaining 40 hectare had been cleared of timber and had some land preparation. He assessed it as being all suitable for cultivation. He has accepted the advice on the question of flooding and says that as a result of the resumption the land is no longer suitable for agricultural pursuits. He says that while the land was previously subject to some inundation in large floods it is now in danger of increased flow and scouring. He says that after the next major flood for all practical purposes it will be badly scoured and reduced to a parcel only suitable for improved pasture.
It is clear on the evidence that Mr Dobe harbours no such fears. I am satisfied that he is an experienced local farmer fully conversant with the problems associated with farming in the Bowen area in flood prone country. I accept that he is a most competent farmer which he demonstrates by applying prudent methods of farming rotating his crops and protecting the soils with a ground cover during the high flood risk months. There is an abundance of evidence to support this practical approach. I have been told of the extent of farming in flood prone areas throughout the district. The corn paddock seen on inspection and the evidence given of the history of farming of this particularly flood prone parcel is indicative of the attitude adopted by farmers to the question of flooding. Despite expert opinions it is the practical farmers who determine market prices and use. I am satisfied that at the date of resumption the highest and best use for this parcel of land was for agricultural pursuits and that it would sell in the market place for this purpose and not as grazing land.
Mr Dobe says that at the date of resumption he would have asked $1,500/ha for the balance land a figure close to the figure applied by Mr Matson in the before exercise. In simple terms what Mr Matson is saying is that Mr Hermann was prepared to sell and Mr Dobe was prepared to buy in January, 1982 153.88 hectares for $155,000 with both seller and buyer agreeing the highest use was for cultivation but that within 12 months by reason of the resumption the purchaser is entitled to an award of $156,418 while still retaining 126.73 hectares of land which he says is worth $103,368. I find on all of the evidence that the Dobe land has not been injuriously affected as a result of the resumption and its highest and best use is as agricultural land as used by Mr Dobe.
Mr Pott has reacted to the resumption in a different way. Immediately the land was resumed he concluded that one area of his cultivation would suffer inundation and further cultivation would result in the erosion of the land. He formed this opinion before any works had commenced and I am sure that he would adhere to this opinion regardless of any works that were undertaken or advice which might be given to the contrary. Mr Pott is a grazier carrying a substantial number of cattle on his aggregation of 699 hectares. He says that this would not be possible without the use of fodder crops for supplementary feeding. He has a system of developing different areas of land in the aggregation, having them farmed for some years by small crop farmers who, after working and fertilizing the land and retaining the benefits of their labour from their crops return the land to him with a fodder crop planted for Mr Pott to eventually harvest. Mr Pott elected to abandon this particular paddock and develop a new area. He has sufficient land to make this election. I doubt that a farmer with less area of land would take this same course of action.
The state of the evidence is somewhat confused as to whether any of the 24 hectare cultivation paddock was flooded during the 1980 flood. Mr Pott is adamant that no flooding occurred but I prefer the evidence of Mr Ewart on this particular point. It is really of no great moment and I am not unduly concerned whether Mr Pott complained of ponding in the past or whether he was referring to inundation. It is clear from his evidence that the water moved across the property fairly quickly even with the small culverts and I have no reason to doubt that the larger culverts will cope more efficiently than the old ones but it is really of no moment because I have the clear evidence of an experienced farmer in Mr Dobe as to how he would work flood prone land. On all the evidence I am satisfied that the highest and best use for this particular paddock is for cultivation with prudent husbandry against the risk of flood and that the balance of the original Portion 111 with an area of 240.47 hectares has not been injuriously affected as claimed.
Turning to the claim by Mr Hermann for injurious affection to the balance of Portion 109 the claim made by Mr Matson in his valuation is on very simple grounds. He accepts from Mr Hermann that he made enquiries of agents and farmers in the District and from this advice he decided on an asking price for Lot 1 of $150,000 and for Lot 2 $200,000. He accepts the explanation given by Mr Hermann of the reason he reduced the selling prices so that in the result he signed contracts on the 12th March, 1984 to sell Lot 1 to Brooker for $100,000 and Lot 2 to Taylor for $150,000. He says that the loss suffered by Mr Hermann is the difference between the asking price and the contract price in each case.
The evidence surrounding these transactions to support this contention is scanty. The contracts show the land was sold privately. I am not informed to what action was taken by real estate agents or how extensively the sales were advertised and what expert advise Mr Hermann sought before reducing the asking price. The evidence from Mr Linnan does not support a finding that the purchasers were apprehensive as to any increase in flooding levels because of the new works although they were aware of the flooding history of the lands. I find that the approach which has been adopted is no sound basis to sustain a claim for injurious affection but in any event I find that there is no cogent evidence to support the claim that the lands will suffer because of the resumptions and the claim is not allowed.
Turning to the value of the Pott's land actually lost as a result of the resumptions Mr Matson arrives at a figure of $11,508. He adopts a value of $4,000/ha to 2 hectares of irrigable/arable land and $500/ha for land suitable for grazing on native pastures. Mr Linnan attributes a value $3,500/ha to the 2 hectares of irrigable/arable land but he attributes a value of $1,400/ha to the balance of 7.016 hectares to arrive at a figure of $17,000. There is little between them in the irrigable/arable value and I will adopt the figure contended for by Mr Matson to resolve all doubts in favour of the dispossessed owner. While Mr Matson attributes a value of $500/ha to the balance land he does so because he considers its highest and best use is for grazing. Mr Linnan while acknowledging it lies in a depression, values it as land suitable for farming as other similar low lying areas are farmed in the district. I accept the conclusion that a farmer would see the land in the same light as Mr Linnan and I adopt his value of $1,400/ha for the balance area of 7.016 hectares making a total of $17,822.
In making his valuation of the Hermann (Dobe) land Mr Matson has assessed 24.65 hectares as having been cleared of timber by pushing, stacking, burning, and stick picking, which he values at $2,000/ha and he applies a rate of $1,500/ha to the 2.5 hectares which had not been so treated to arrive at an overall valuation of $53,050. Mr Linann applies an overall rate of $1,500/ha to the total area resumed of 27.15 hectares for a total of $41,000. This difference arises because of the view taken by each of the Valuers as to the added value of the clearing works which have been completed at the date of resumption. It is clear from the evidence that immediately the contract was signed Mr Dobe commenced clearing works to prepare land for cultivation but the evidence is somewhat clouded as to the extent and value of that work. I am left in some doubt in the matter and I will give the benefit of the doubt to Mr Hermann and will adopt the figures contended for by Mr Matson and will determine the value of the land resumed at $53,050.
A claim has been made in the sum of $1,000 for the loss of time incurred by Mr Pott in checking that his boundary with the new railway works was stock proof and in mustering his cattle from adjoining lands when the fences were down. Mr Matson says that this was an arbitrary allowance as Mr Pott was not able to supply him with an estimate of the actual time spent in these duties. It was submitted that an arbitrary allowance was frequently allowed by the Court. I would stress that in these matters it is upon the claimant to prove his items of disturbance. This was emphasised by the Learned President of this Court at that time in O'Hara and Another -v- Brisbane City Council (1972) 39 C.L.L.R. 246 at p253 when he said:"I think it is incumbent on the claimants in these proceedings to prove the various heads of claim which they contend constitute disturbance and this is not a matter of adopting an allowance made by the constructing authority"
In this case I am satisfied that Mr Pott was required from time to time to check whether his fence was stock proof and also muster cattle back when the fence was down and Counsel for the respondent concedes that this could be so. In the particular circumstances I will allow a sum of $1,000 as claimed under this heading with the qualification that it is not to be inferred that in other cases an arbitrary allowance will be given in the absence of proof of the disturbance.
The parties have agreed on figures for legal and valuation fees and consultants fees incurred up to the date of lodgement of the claim in the Court. In the case of Mr Pott's land legal fees are agreed at $1,200, consultants fees at $661.82 and valuation fees of $1,500 for a total of $3,361.82 to which I add the $1,000 for the owners time for a total of $4,361.82. The agreement in respect of Mr Hermann's land is for legal fees of $1,800, consultants fees $661.82 and valuation fees of $3,000 for a total of $5,461.82. The final amount in respect of the 2 resumptions of land from Mr Pott is the sum of $22,183.82 which I round to $22,200. In respect of Mr Hermann the total award in the sum of $58,511.82 which I round to $58,520.
There are 4 separate claims before the Court and while I am required to determine compensation payable in respect of each claim all of the evidence has really been directed to the total area lost. I feel that the simplest way to make the formal awards is to include in the award for the larger parcels resumed the amounts awarded by way of disturbance and to simply place an arbitrary figure in respect of the land taken in the second resumptions. In the Pott's cases I will apportion $4,000 to the land taken in the second resumption and $3,400 for the land taken in the second of the Hermann resumptions.
I determine the compensation payable by the respondent to the claimant Edmund Douglas Pott in case A89-17 under all heads of claim in the sum of $18,200. I order the respondent to pay to the claimant interest thereon at the rate of 13.25% per annum commencing on the 29th January, 1983 up to and including the day immediately preceding the date on which compensation is paid.
I determine the compensation payable by the respondent to the claimant Edmund Douglas Pott in claim A89-18 under all heads of claim in the sum of $4,000. I order the respondent to pay the claimant interest thereon at the rate of 13.25% per annum commencing on the 26th March, 1983 up to and including the day immediately preceding the date on which payment of compensation is made.
I determine the compensation payable by the respondent to the claimant Peter Ulrich Conrad Hermann in claim A89-19 in the sum of $55,120. I order the respondent to pay to the claimant interest thereon at the rate of 13.25% per annum commencing on 11th December, 1982 up to and including the day immediately preceding the date on which payment of compensation is made.
I determine compensation payable by the respondent to the claimant Peter Ulrich Conrad Hermann in claim A89-20 in the sum of $3,400. I order the respondent to pay to the claimant interest thereon at the rate of 13.25% per annum commencing on 26th March, 1983 up to and including the day immediately preceding the date on which payment of compensation is made.
Section 27(1) of the Acquisition of Land Act provides that the cost of and incidental to the hearing and determination of a claim for compensation shall be in the discretion of the Court. Subsection 2 of that section restricts the discretion of the Court dependant upon the amount of the award. Here the amount of compensation as determined in each case is nearer to the amount of valuation finally put in evidence by the Respondent. Accordingly, costs, if any, can only be awarded to the Respondent. While this judgment is being handed down in Brisbane, the Solicitors for the Claimants practise in Ayr. One or other party could be disadvantaged if I consider or determine a question of costs at this time without the benefit of argument. I therefore grant the Solicitor for the respondent liberty for a period of 28 days from the date hereof in which to make to the Registrar, if so instructed, written application for costs together with submissions why an order for costs should be made. The Registrar is ordered upon receipt of any such application to forward a copy to the Solicitors for the Claimants who are hereby given 28 days from the date of the Registrar's letter in which to lodge a reply in the Office of the Land Court. My consideration of the merits of any application for costs will be based on the written submissions unless the parties request otherwise or unless I require further submissions.
I have taken note of the fact that substantial works to improve erosion problems were undertaken a short time before the date of the hearing of these matters and such works were still in progress at the date of inspection. The claimants contend that these are new works which should have formed part of the original works in 1983. The respondent contends that they are a matter of maintenance. Whatever view is taken the works are substantial and expensive. They would support the concern felt by the claimants when the new works were first completed and may well be a justification for pursuing the matters to a hearing. The parties may care to address this matter in any application and reply.
President of the Land Court.
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