Robin Wood Holdings Pty Ltd v Council of the City of Gold Coast
[1999] QLC 20
•31 March 1999
|
LAND COURT,
BRISBANE
31 March 1999
Re: Determination of compensation –
Resumption for park purposes –
(Ref. A98-37).
Robin Wood Holdings Pty Ltd
v.
Council of the City of Gold Coast
J U D G M E N T
Pursuant to the provisions of section 24(1) of the Acquisition of Land Act 1967, the abovementioned claimant company has referred a claim for compensation dated 1 September 1998 to this Court for determination following the resumption by the Council of the City of Gold Coast on 8 November 1996 for park purposes of a 836 square metre parcel of land situated at the north-west intersection of Nerang Connection Road and the Pacific Highway at Nerang. The resumed land is more particularly described as Lot 1 on Plan WD4582, Parish of Gilston, and comprises the whole of the land in Title 15928039. Erected upon the land at resumption date was a dwelling house said to have been of historical significance and which has since been removed by the resuming authority. The resumed land was zoned “Residential A” under the provisions of the Shire of Albert Town Planning Scheme which was gazetted on 24 February 1995. It was classified “Open Space” adjoining a “Major Business Centre” under the former Shire of Albert Strategic Plan for preferred dominant land uses for the locality, and is designated “Public Open Space and Recreation” under the 1995 Nerang Development Control Plan No 2 for preferred dominant land uses in the Nerang locality. The resumed land adjoined a considerable area of “Public Open Space” land which extends to the Nerang River and which is known as Arthur Earle Park. The land was resumed as a logical extension of that park.
The claim for compensation reads:
Monetary equivalent of value of land taken and
residence erected thereon $200,000.00
Stamp duty payable on replacement property not
being principal place of residence ($200,000.00) $ 5,600.00
Legal costs and outlays payable on purchase of
alternate premises $ 1,050.00
Valuation fees (scale fee on property valuation of
$200,000.00 $ 1,800.00
Legal costs and outlays relating to preparation of claim $ 1,200.00Interest payable pursuant to resumption of lands on
$200,000.00 at the rate of 11.5% per annum from
8/11/96 to 25/8/98 $ 41,337.00
TOTAL CLAIM $250,987.00
During the hearing of the matter, Counsel for the claimant sought and obtained leave to amend the claim for compensation as follows:
Monetary equivalent of value of land taken and
residence erected thereon $190,000.00
Stamp duty payable on replacement property not
being principal place of residence - deleted
Legal costs and outlays payable on purchase of
alternative premises – deleted
Valuation Fees (scale fee on property valuation of
$200,000.00) $ 1,800.00
Legal costs and outlays relating to preparation of claim $ 1,200.00
TOTAL AMENDED CLAIM (EXCLUDING INTEREST) $193,000.00
Now I might here comment that the matter of an award for interest will be dealt with later in this judgment in accordance with the provisions of section 28 of the Acquisition of Land Act, after I have dealt with my determination of a compensation. I might also say that the respondent Council of the City of Gold Coast does not join issue with the claimed legal costs and valuation fees.
The amended claim for compensation is based upon an assessment of compensation made by practising registered valuer, Leo Charles Goggins, who is in the employ of the valuation firm, Taylor Byrne. To illustrate the extent of the dispute between the parties as to compensation entitlement, practising registered valuer, Terrence John Lacey, who is a director of the valuation firm, Herron Todd White (Gold Coast) Pty Ltd, and who was called in evidence by the respondent, assesses compensation in the sum of $110,000.
Other witnesses called during the hearing of the matter were:
By the claimant company –
Barry Ronald Alcon Dredge – a town planning consultant and director of the firm of town planning and development consultants, Dredge and Bell Planning Pty Ltd.
By the respondent Council of the City of Gold Coast –
David Perkins, a town planning consultant and member of the firm Humphreys Reynolds Perkins, Planning Consultants, and
Robert Charles Holland, a consultant traffic engineer and principal of the firm of consulting traffic engineers, Beard and Holland Pty Ltd.
There is divergence of opinion between the town planners as to the highest and best use of the resumed land as at the resumption date. Mr Dredge concludes that as at that date, approval for a low-intensity commercial use which could be compatible with the adjoining parkland could have reasonably been expected on town planning grounds had “Public Open Space” not been an option. Mr Perkins on the other hand considers that the highest and best use of the site would have been for a dwelling house with the possibility of a home occupation.
The conflicting opinions of the town planners were not resolved during the course of the presentation of their evidence, and I might say this is not an unusual occurrence in cases of this nature. But an appreciation of the reasons for their respective conclusions is of significance since each of the valuers called in evidence relied in their compensation assessments upon the respective town planner’s opinion as to the highest and best use of the resumed land at resumption date.
But before discussing the town planners’ reasons, I should say that it is not necessary for this Court to reconcile the conflicting opinions of the town planners in relation to the highest and best use of the resumed land in town planning terms. The Court’s primary function is to determine compensation in accordance with the provisions of section 26(1) of the Acquisition of Land Act 1967. This is not to say that the Court should not be influenced by the town planning evidence, as well as the valuation evidence, in coming to its finding as to compensation entitlement.
Claimant’s Town Planning Evidence – Mr BRA Dredge
The Court is indebted to Mr Dredge who tendered an aerial photograph of the Nerang locality which was flown, coincidentally, in October 1996 (shortly before the date of resumption). This photograph has been of considerable assistance to me in my appreciation of the town planning and valuation evidence presented in the case. For this reason, and that the dwelling house on the resumed land has since resumption been removed by the Council, and additionally that the resumed land has essentially “disappeared” as a result of substantial roadworks, a decision was taken by me not to undertake what is now recognised in this jurisdiction as almost an obligatory view of the resumed land in the company of the litigants.
Mr Dredge informed the Court that the resumed land was immediately adjacent to a major signalised intersection of the Pacific Highway with Nerang-Broadbeach Road and Nerang- Connection Road. Nerang-Connection Road provides the central crossing of the Nerang River to the Nerang business area and an extensive residential development beyond. The road formation adjacent to the subject site in Nerang-Connection Road comprised two lanes towards the intersection for through-traffic and right turns, a segregated lane for traffic to Station Street to the south and two northbound lanes from the main intersection and Station Street. Additional traffic signals controlled the movements to and from Station Street. Mr Dredge told us that these roads carry very heavy traffic volumes and the intersection with the Pacific Highway is busy at most times of the day. Congestion at peak periods results in vehicles queuing at the intersection for more than one change of lights. Vehicular access to the resumed land was restricted to left in and left out movements.
Mr Dredge points out that the resumed land was at the southern tip of the land area between the Pacific Highway, Nerang-Connection Road and the Nerang River. He confirmed that a public park (Arthur Earle Park) occupied the balance of this area, being a landscaped passive park with car park and picnic facilities. Accordingly, Mr Dredge describes the resumed land as an isolated allotment with restricted access and visually prominent with high exposure to the Pacific Highway and the arterial road system. Opposite the site to the west/south west there are business premises which were accessed by a service road (Station Street) adjacent to the highway. These premises comprise a medical centre, a variety of shops and commercial buildings with parking between the service road and highway extending to Pelermans Barn Hotel and Nerang Village Shopping Centre to the south. On the eastern side of the major intersection with the Pacific Highway there is a vacant site of about 2 hectares and a motel to the north of the Nerang/Broadbeach Road. To the south there are older style detached dwellings. These dwellings and the vacant site are earmarked for future commercial development.
Mr Dredge says that the Albert Strategic Plan identifies the preferred dominant land uses for the whole of the local government area on a broad basis. The plan shows the resumed land designated as “Open Space” adjacent to a circular symbol for a “Major Business Centre”, which is intended to cover all of the commercial development in the Nerang Centre. Mr Dredge further says that the “Open Space” designation reflects the Council’s broad planning objective for parkland along the river and it will be seen at this scale of mapping that the “Major Business Centre” is symbolic in that it does not cover any of the existing commercial area to the east of the Nerang River.
The resumed land is also identified on the Nerang Town Centre Development Control Plan and is designated as “Public Open Space and Recreation”. This is a cadastral based plan with much greater accuracy than the Strategic Plan. The Preferred Dominant Land Uses Map for the Development Control Plan indicates the Council’s future desired land use for the resumed land as being “Public Open Space and Recreation”.
Mr Dredge says that the privately owned land around the major intersection is designated “Centres – Retail and Commercial” within Precincts 4, 8 and 10 as shown on the Nerang Development Control Plan. Precinct 4 (to the south of the resumed land across Nerang-Connection Road) is currently the location for several large scale retail developments and it is intended that this use type continues and expands as the dominant land use in the precinct. Precinct 8 (to the east of the Pacific Highway from the resumed land) provides an opportunity for the establishment of a commercial centre which could benefit by the high level of exposure to the Pacific Highway, and which will complement the development of Nerang as a business centre. Precinct 10 (also east of the Pacific Highway) provides an opportunity for the establishment of commercial/retail uses which will benefit from highway exposure and ready highway access via a service road. In Precinct 10, the existing subdivision pattern is such that amalgamation of parcels will be required to allow for comprehensive development opportunities. The maximum site coverage permitted in Precinct 10 is 60%, and a minimum 5 metre landscaped buffer is to be provided along the eastern boundary of the precinct. All car parking required for a development in the Precinct is to be provided on site.
Mr Dredge informed the Court that the Land Use Code for these precincts, and indeed for all other precincts except for Precinct 9 adjoining the Nerang Railway Station, prescribes that any residential development is undesirable. This factor is considered by Mr Dredge to be of significance in the context of examining appropriate uses for the resumed land.
The “Residential A” zoning for the subject land was subject to the Table of Development in the Albert Planning Scheme. In the "Residential A” zone the Permitted Development is as follows:· Display Home
· Dwelling House
· Park
· Estate Sales Office
· Family Accommodation
· Private Recreation
Development which could be approved with the town planning consent of Council includes:
· Child care centre
· General store
· Home occupation
· Place of worship
· Public Utilities and
· Surgery.
Mr Dredge points out that all other development is prohibited within this zone and rezoning would have been required for any uses other than those nominated above.
Mr Dredge says that the rezoning provisions confer the lawful rights to use land for particular purposes, and at the date of resumption, the “Residential A” zoning confined the use to residential purposes, which reflected the existing use as a single dwelling. Mr Dredge stresses that the “Residential A” zoning of the resumed land is not consistent with the Development Control Plan designation for “Public Open Space”, and he believes it was effectively a holding zone to provide for the existing residential use of the land pending action by the Council to acquire the land. Reference to both the zoning map and the Nerang Development Control Plan shows that the land at the other three corners of the Pacific Highway intersection is earmarked for commercial purposes. The zoning there is “Comprehensive Development” and the Preferred Dominant Land Use is for retail and commercial centres under the Development Control Plan.
Mr Dredge believes the planning intentions for the area south east of the intersection to be of particular significance. The preferred use is for low order commercial development. This area comprises older style dwellings on small allotments which prior to the Development Control Plan, was zoned “Residential A”. The Council initiated the change of zoning for this area in anticipation of redevelopment for commercial purposes and one of the underlying reasons for this move would appear to Mr Dredge to be considerations on planning grounds of less desirable residential amenity.
Mr Dredge believes the consistent and logical approach to future planning of the land at the remaining corner of the Pacific Highway intersection (the resumed land) would have been to provide for a commercial form of development as for the other three corners. Had it not been for the intended acquisition for public open space, Mr Dredge believes the anticipated planning parameters would have been directed at a commercial land use at a controlled scale of building development to complement the existing open space. From a town planning viewpoint the assessment of the potential use and development of the site for a purpose other than for “Public Open Space” comes down, in Mr Dredge’s opinion, to considering the characteristics of the site and its surrounds, the location and land use opportunities in the light of fundamental planning principles. Mr Dredge pointed out that the “Residential A” zone catered for the existing use and the zoning provisions are of little assistance in that they deal with only one possible use. He says the provisions of the Nerang Development Control Plan which apply directly to the subject site refer only to open space and are not relevant, but that other provisions which refer to precincts in the immediate vicinity of the main road intersection provide significant guidance for a consistent planning approach for low order commercial development.
Mr Dredge contends that whilst the resumed land had no direct neighbouring land use other than open space, it was more closely associated with the Station Street commercial precinct (No 4) than the more remote development across the highway. In these circumstances he believes the planning principle aimed at an orderly arrangement of compatible land uses would favour a commercially oriented use over a residential use.
Mr Dredge stresses that the resumed land had a significant exposure to the Pacific Highway in terms of visual prominence and heavy traffic flows. He says Nerang-Connection Road and the series of signalised intersections with continual stop-start traffic characterised the site in a similar manner to a slightly lesser extent. Mr Dredge believes the exposure can be considered to be highly desirable from a commercial aspect, and the traffic conditions may be perceived as a positive or negative influence depending upon the nature of a particular commercial enterprise. These factors would, in Mr Dredge's opinion, certainly have a negative impact on the amenity of the locality and on the resumed land from a residential perspective. He says that traffic noise and congestion with other emissions such as dust and fumes would not be conducive to a reasonable living environment, and that prominent exposure to a major highway and signalised intersection would further diminish the residential amenity to an undesirable standard, which would be contrary to accepted planning principles. On this basis, Mr Dredge believes a commercial use would again be preferred over residential use on town planning grounds.
Mr Dredge describes the vehicular access to the subject land as being difficult in the sense that movements were confined to left turns in and out only. However, he submits that this management applies in many other situations where median strips have been constructed for traffic safety purposes. He believes the relative effect of this access constraint on residential or commercial development on the site is not conclusive, but from a potential land use perspective, he considers that this factor has a neutral impact on the suitability for different forms of prospective development.
Mr Dredge points out that the significant exposure of the resumed land would be a positive factor to be exploited for identification and advertising purposes for a commercial development, but there would be valid planning argument on incompatibility of adjoining land uses. Moreover, the Main Roads Department would have jurisdiction over control of advertising devices adjacent to a State controlled highway and would oppose major signage on traffic safety grounds.
Mr Dredge believes that a form of commercially orientated development for the resumed land would include a wide variety of uses. Those which could possibly be feasible are retail, specialised retail/display, offices, restaurant, home occupation, surgery, place of worship, community services. He believes that it would have been a reasonable expectation that town planning approval would have been obtained for the resumed land for a non-intensive use for offices or a restaurant had it not been for the “Public Open Space” designation in the Nerang Development Control Plan, whilst approval for shopping and retail pursuits would be unlikely on planning grounds. Mr Dredge concludes that in November 1996 (the resumption date), the relevant planning controls effectively reserved the future use of the resumed land for public open space or the then existing residential use. He says the designation of “Public Open Space and Recreation” in the Nerang Development Control Plan would have precluded rezoning from “Residential A” zone for other development, and further that although the site contained a dwelling and adjoined an attractive public park, its use for residential purposes could not be supported on town planning grounds, having regard to the lack of an acceptable standard of residential amenity. Again, that the land was a single isolated allotment, was in an area of commercial character on the western side of the Pacific Highway and from an orderly planning viewpoint, a non-residential use would have been the appropriate alternative to public open space. He sees an appropriate use for the resumed land to have resulted from its inclusion within the “Special Facilities” zone to cater for a strictly Council controlled low-intensity commercial development which could be compatible with the adjoining parkland.
Respondent’s Town Planning Evidence – Mr D Perkins
Mr Perkins largely restated the factual evidence provided by Mr Dredge in respect of the zoning of the resumed land, the preferred dominant land use in the Strategic Plan and the designation under the Nerang Town Centre Development Control Plan. He says that the intent of the “Open Space” designation in the Strategic Plan does not support the further development of the resumed land as a commercial or retail centre, and stresses that any application to rezone the land to allow for commercial, industrial or retail uses conflicts with the provisions of the Strategic Plan. Mr Perkins told us that while the Strategic Plan indicates the preferred dominant land use for land in the Shire at a broad scale, the Nerang Town Centre Development Control Plan was prepared to provide greater detail as to the Council’s intent for the future development of the area and this includes the resumed land. Accordingly, he feels that greater emphasis should be assigned to the Development Control Plan in the assessment of appropriate uses for the resumed land at the date of resumption. Mr Perkins says that the use of the subject land for commercial, retail or industrial uses would not have accorded with the intent of the site’s “Public Open Space and Recreation” designation on the Development Control Plan. He says the resumed land was intended to be added to the existing reserves and utilised for recreational or environment conservation purposes as indicated on both the 1990 and the 1995 Development Control Plan predominant land use maps.
Mr Perkins says that the intent of the “Residential A” zone is:“to accommodate low density residential development, to the general exclusion of other types of land use. In established residential areas, this will take the form of single family detached dwellings, while in newly developing residential areas … a broader range of low density housing forms is intended. ”
He also says that under the 1995 Planning Scheme the following uses are permitted, or permitted subject to conditions, in the “Residential A” zone. He comments on these uses below.
Display home - Mr Perkins comments that this is a temporary use only – it would have required the relocation of the existing house.
Dwelling house - His comment is that a dwelling house existed on the site at the date of resumption.
Park -His comment is that this is consistent with DCP designation.
Estate sales office- His comment is that it is not relevant to the site.
Family accommodation - His comment is that it is not relevant to the site.
Private recreation - His comment is that this use is suitable subject to adequate space.
Mr Perkins offered the following comments on uses which are permissible subject to town planning consent in the “Residential A” zone:
Child care centre - Comment – not suitable. The site is considered to be too small and in an inappropriate location and in addition the use would conflict with the Development Control Plan.
General store - Comment – not suitable. The site is considered to be too small and in an inappropriate location. Additionally this use would conflict with the Development Control Plan.
Home occupation - Comment is that this use is potentially suitable although such a use would conflict with the provisions of the Development Control Plan.
Place of worship - Comment is that in the “Residential A” zone the minimum site area for such a use was 2000 square metres, and that the site is considered to be too small to be effectively used for such purposes.
Public utilities - Comment is that this is dependent on a particular case.
Surgery -Comment is that it is not suitable as the site is considered to be in an inappropriate location and this use would conflict with the Development Control Plan.
Mr Perkins provided the Court with a table which outlines the key issues which the Gold Coast City Council (formerly Albert Shire Council) would assess in determining the outcome of a rezoning application from the “Residential A” zone to those zones which allowed commercial, industrial or retail development on the resumed land at the date of resumption. These issues are:
| Requirement | Assessment |
| Assessment of issues outlined in the Local Government | |
| Whether the proposal if approved would create a traffic problem, increase an existing traffic problem or detrimentally affect the efficiency of the existing road network ((section 4.4(3)(a)(i) | Access to the site is from Nerang Connection Road only, with this access being restricted to left in, left out with no right turn being available to the site. Access to the site by clients and employees of a commercial/industrial or retail business could create substantial traffic problems along Nerang Connection Road. Additionally there is no parking land available in front of the site. It is therefore considered that the proposal, if approved, would create a traffic problem and detrimentally affect the efficiency of the existing road network. |
| Whether the proposal if approved would detrimentally affect the amenity of the neighbourhood ((section 4.4(3)(a)(ii) and the situation, suitability and amenity of the land in relation to neighbouring localities ((section 4.4(3)(g)). | If the rezoning of the subject site was approved and a commercial building erected on the site, it is considered that this would not have a positive impact on the amenity of the area as the proposal would have detracted from the view of motorists passing the site. |
| The balance of zones in the planning scheme area as a whole or that part of the area within which the relevant land is situated and the need for the proposed planning scheme amendment ((section 4.4(3)(b)). | It is not considered that the proposal to rezone the land to another zone which would enable commercial (e.g. General Commercial zone), industrial or retail development would have an adverse impact on the balance of zones. There was no shortage of land designated or zoned for these purposes at the date of resumption. |
| The local government must refuse to approve the application if it conflicts with any relevant strategic plan or development control plan and there are not sufficient planning grounds to justify approving the application despite the conflict ((section 4.4(5A)(a&b)). | Any proposal to rezone the land to allow for the development of commercial, industrial or retail activities would conflict with the Strategic Plan and the Nerang Town Centre Development Control Plan. Therefore it would have been necessary to assess whether there were sufficient planning grounds to justify the approval of the rezoning, despite this conflict. Having regard to the fact that: · a rezoning to the General Commercial zone for example, would not have improved the amenity of the area; · a need for the proposal could not be demonstrated; · traffic and pedestrian access would have been poor and dangerous; it is considered that there would not have been sufficient planning grounds to justify approving the application despite the conflict. |
| Requirement | Assessment |
| Assessment of Other issues outlined in the Albert Shire Council Planning Scheme (1995) | |
| The size and shape of the parcel of land to which the application relates … | The site has an area of 836 square metres and is considered to be relatively small in size. The size of a building would have been severely restricted by the need to provide adequate car parking. |
| Whether the proposal would be in accordance with, or conflict with the Strategic Plan or any Development Control Plan ((17.16.1(8)). | Refer to comment in relation to 4.4(5A). |
| Whether the proposal would be in conflict with the Council’s overall road planning for the area, or with future planning proposals in the locality. ((17.16.1(16)). | Based on information provided by Bob Holland, a traffic engineer, the site was identified as being likely to be required for roadworks associated with a major upgrading at the date of resumption. |
| Whether the land or any part thereof is, or is likely to be, required for any future road system. ((17.16.1(17)). | As above. |
| Whether the proposed means of ingress to and egress from the site is adequate. ((17.16.1(19)). | A traffic report prepared by Bob Holland has identified that the site is largely inaccessible and not well located to provide for a local service. It would be likely to lead to a substantial pedestrian safety problem. |
| Whether the proposal is likely to cause or encourage commercial ribbon development ((17.16.1(28)). | The development of the site for commercial/industrial or retail development would result in commercial ribbon development/fragmentation. |
Following an assessment of the issues outlined in the table, Mr Perkins considers that the Gold Coast City Council (formerly Albert Shire Council) should not have approved an application to rezone the land from “Residential A” to any other zone which would enable commercial/industrial or retail development on the following grounds:
· the rezoning of the site to enable commercial, industrial or retail uses would lead to a detrimental impact on traffic and pedestrian circulation and safety;
· a rezoning for commercial, industrial or retail activities would be contrary to the Strategic Plan’s Open Space designation and the Public Open Space and Recreation designation of the Nerang Town Centre Development Control Plan. It is therefore likely that the Gold Coast City Council (formerly Albert Shire Council) would have refused such an application as there is not considered to be sufficient planning grounds to justify these conflicts; and
· the commercial, industrial or retail development of the site would have created further fragmentation of the existing pattern of retail and commercial development.
As a result, Mr Perkins concludes that the highest and best use of the resumed land at resumption date would have been a dwelling house with the possibility of home occupation. This opinion is based on the following grounds:
· the use of the land for residential uses was supported by the “Residential A” zoning of the property although its poor amenity is acknowledged;
· due to the size of the site adequate on-site car parking for commercial or retail uses and landscaping would have been difficult to achieve;
· a rezoning application to enable the site to be developed for commercial or retail purposes (e.g. to the General Commercial Zone) should not have been supported by the Gold Coast City Council (formerly Albert Shire Council) as such an amendment would be contrary to the Public Open Space Strategic Plan Designation and the Public Open Space and Recreation designation of the Nerang Town Centre Development Control Plan 2. It is not considered that sufficient planning grounds could have been demonstrated to justify this conflict; and
· commercial or retail development of the site would lead to ribbon development/fragmentation and have created traffic and pedestrian conflicts. This conclusion is supported by a report prepared by Bob Holland, a consulting traffic engineer.
Respondent’s Traffic Engineering Evidence – Mr RC Holland
It is convenient for me now to outline the respondent’s traffic engineering evidence before discussing the valuation evidence. To illustrate the heavily trafficked nature of the road system adjacent to the resumed land, Mr Holland provided the Court with Main Roads 1995 based average annual daily traffic flows which read:
Pacific Highway 48,669 vehicles per day
Nerang Connection Road 12,926 vehicles per day
Mr Holland describes the intersection of Pacific Highway and the Nerang-Broadbeach Road as being a conventional, though major, traffic signal controlled intersection with one exception, that being that the right turn movement from Pacific Highway from the north to Nerang Connection Road was prohibited. Mr Holland points out that traffic wishing to perform that manoeuvre was required to exit from the highway about 1.2 kms to the north of the intersection and travel into Nerang via Price Street or alternatively, continuing south along the highway for a distance of approximately 300 metres and turn right at the Grenfell Street intersection. Mr Holland tells us that east bound through traffic flow in Nerang Connection Road was restricted to single lane operation with the second lane being reserved wholly for traffic turning right into the Pacific Highway. He says that it would appear the traffic signal system did not incorporate any pedestrian facilities for persons wishing to walk between the resumed land and the existing commercial/retail developments on the opposite side of Nerang Connection Road to the south of the site.
Mr Holland told us that a separate (though coordinated) set of traffic lights existed in Nerang Connection Road virtually adjacent to the resumed land, to allow traffic travelling from the Nerang CBD via Nerang-Connection Road to access Station Street, which takes the form of a service road along the western side of the highway, south of Nerang-Connection Road. Station Street provides access and extensive on-street parking areas associated with the retail and commercial development abutting the western side of the highway. It also forms a local connection between Nerang-Connection Road and Gilston Road to the south.
Mr Holland believes that the implications of these arrangements for vehicular access to the resumed land in the event of its proposed redevelopment are as follows:(i)no access to Pacific Highway would be permitted,
(ii)access to and from Nerang-Connection Road would be restricted to left turns only,
(iii)any exit driveway would need to be located toward the southern end of the site in order that drivers departing from the site do not attempt to use the separate right turn lane to Station Road as there would be too high a risk that such vehicles would block eastbound through traffic for such an outcome to be acceptable,
(iv)it is almost certain that a separate deceleration lane for traffic slowing to enter the site would be required to be constructed in Nerang Connection Road. Such a lane would require widening of the existing road reserve, since such a lane would occupy the whole of the existing verge, leaving no provision for services, pedestrians etc. Mr Holland says that unless the agreement of the owner of the adjoining land to the north could be obtained, the consequence of this would be that the entry driveway would need to be located at the southern end of the site, thus allowing the deceleration lane to be accommodated within the frontage of the resumed land. As a result, Mr Holland submits that the site would be directly accessible only from the direction of the Nerang CBD, and that it would not be accessible from the highway in either direction, nor from Nerang-Broadbeach Road, nor from Station Road. He says that travel to the site from any of these directions would involve a circuitous route or the carrying out of U-turns remote from the site, and that traffic departing from the site would be unable to return directly to the west towards the Nerang CBD nor would it be able to conveniently travel to the existing retail/commercial precinct in Station Street.
By way of summary Mr Holland submits that
(i)from a practical and/or safety viewpoint, the site is remote and inaccessible from the existing commercial/retail precinct south of Nerang-Connection Road, west of the highway, for both vehicular traffic and pedestrians;
(ii)the site is accessible to traffic travelling towards it from the Nerang CBD, but conversely return trips from the site towards the Nerang CBD are indirect and inconvenient;
(iii)the site is inaccessible to traffic approaching it from any other direction; and
(iv)the location and form of access arrangements to the site (and associated roadworks) are tightly constrained and potentially costly.
Mr Holland therefore concludes that from a traffic viewpoint, the site cannot be viewed as a logical extension of the existing commercial/retail development on the opposite side of Nerang-Connection Road. It is not well located to cater for “passing trade” on the highway, nor is it well located to provide for a local service. Mr Holland says that if it resulted in additional pedestrian movements between the resumed land and the existing nearby retail/commercial development, it would be likely to lead to a substantial pedestrian safety problem. Accordingly, it is Mr Holland’s opinion that from a traffic viewpoint, any development application over the resumed land for a retail/commercial activity lodged at the date of resumption should/would have been opposed for the aforementioned reasons, and on the additional grounds that approval of any such application would prejudice schemes then in preparation for a major upgrading of the Pacific Highway.
Claimant’s Valuation Evidence – Mr LC Goggins
In valuing the resumed land Mr Goggins has followed the advice provided to him by Mr Dredge and has adopted his suggested highest and best use as being:
(a)the use of the resumed land for residential purposes could not be supported due to inferior quality of the residential amenity; and
(b)there would be a clear preference for commercially orientated development as the highest and best use.
Mr Goggins describes the resumed land as being an irregular but reasonably shaped parcel. It is highest in the southern section and falls gently towards the north. Mr Goggins says the land is located slightly below Pacific Highway level and slightly above the Nerang-Connection Road level. He describes the views as being pleasant over parklands towards the Nerang River to the north with river views to the west across Nerang-Connection Road. Mr Goggins also describes access to the resumed land as being easy left in left out to southbound traffic from Nerang-Connection Road. He confirms that there is no access from the Pacific Highway but he points out that the land does have exceptional exposure to the Pacific Highway, the property being located at the major intersection with traffic lights as already discussed.
Mr Goggins describes the improvement erected on the resumed land as comprising an old Queensland-style timber and iron roof dwelling with front verandah, estimated to be 70 to 80 years old. The building is known as “Constitution House” and was used for church counselling and group activities. The floor area of the main building was 98 square metres with a rear attached bathroom/toilet of 5 square metres. Mr Goggins says the condition of the dwelling was generally reasonable for its age. It did require some external painting, guttering is holed in places and timber stumps beneath the bathroom and toilet require some attention. However, in Mr Goggins’ opinion, it did have some character with coloured glass windows, an internal archway, lattice verandah door, verandah timber balustrade and window weather hoods. The resumed site is lawned, fenced with new treated pine picket fencing and further improved with shrubs and trees.
Mr Goggins describes the situation of the resumed property as being unique, with road frontages including the Pacific Highway on three sides, adjoining an attractive park, and bordering the Nerang River to the north. He points out that there have been a number of older-style homes in the Nerang/Mudgeeraba area which have been purchased for professional use and he has included within his tendered valuation document the following sales:
Sale No 1 – Lot 45 on Plan N/1167 – 1012 square metres – Arkmead Pty Ltd to Swift Properties Pty Ltd on 14.09.94 for $195,000 – situation 29 Cotton Street, Nerang.
Mr Goggins comments that this property was a former “Residential A” zoned site zoned “Comprehensive Development” under the 1995 Town Plan. It was improved with a timber framed dwelling which has since been demolished. It is located at the western extremity of the Nerang Business District with limited exposure. The sale price for the property reflects a price of $193 per square metre improved.
Sale No 2 – Lot 6 on RP 100084 – 1201 square metres – Renee M Jackson to Demaford Pty Ltd on 04.10.96 for $280,000 – situation 4 Nerang Street, Nerang.
Mr Goggins says that this is a “Comprehensive Development” zoned riverfront site located at the northern (lower) part of Nerang Street improved with a semi-modern low-set brick and tiled roof dwelling. He points out that the sale site has better access than the resumed land but has less exposure. He says that the sale site is susceptible to flooding and the sale price equates a value of $233 per square metre improved.
Sale No 3 – Lot 5 on RP 104755 – 1419 square metres – HJ and JM Burnette to Australia Cascade Pty Ltd on 28.06.96 for $320,000 – situation 6 Nerang Street, Nerang.
This is a “Comprehensive Development” zoned site located at the northern end of Nerang Street with a frontage to the Nerang River at the rear. It is improved with a good style brick, fibre cement clad and tiled roof dwelling with a pool. It is now occupied by a telemarketing group. Mr Goggins says the sale site has better access than the subject land but again has less exposure. The sale price equates a value of $226 per square metre improved.
Sale No 4 – Lot 2 on RP 100084 – 1083 square metres – Legendary Holdings Pty Ltd to Tallow-wood Crest Pty Ltd on 18.12.95 for $355,000 – situation 12 Nerang Street, Nerang.
Mr Goggins says this is a “Comprehensive Development” zoned site located towards the northern end of Nerang Street also with a frontage to the Nerang River at the rear. The site is improved with a modern lowset brick home currently occupied by an architectural firm. It has better access than the subject land but again less exposure. The sale price equates a value of $328 per square metre improved.
Sale No 5 – Lot 3 on RP 110107 – 898 square metres – Garnetmont Pty Ltd to CM and IN Rosser & Huntingale Unit Trust on 11.04.97 for $165,000 – situation 6 New Street, Nerang.
This is a former “Residential A” now “Comprehensive Development” zoned site fronting the southern side of New Street at the southern extremities of the Nerang business area. It is improved with a small chamfer board and iron roof dwelling with timber stumps. It is now utilised as a computer repair and sales business property. Mr Goggins considers that the dwelling on this sale property is inferior to that which was on the resumed land and again says the site has less exposure than the subject land and is also in an inferior location. The sale price equates $184 per square metre improved.
Sale No 6 – Lot 1 on RP 82018 – 1158 square metres – ER and NM Baber to AM and DL White on 18.02.93 for $300,000 – situation 26 White Street Cnr Martin Street, Nerang.
This is a “Residential A” zoned site improved with an old early Australian style weatherboard and iron roofed dwelling used for residential purposes. Mr Goggins says the property was sold subject to approval as a doctors surgery. It is now zoned “Comprehensive Development” and is located in the western extremities of the Nerang township. The sale price equates a value of $259 per square metre improved.
Sale No 7 – Lot 1 on WD 3101 – 2949 square metres – Nifsan Pty Ltd to LT Cody on 14.09.94 for $450,000 – situation 1 Station Street, Nerang.
Mr Goggins describes this site as a large “Comprehensive Development” zoned parcel located diagonally opposite the resumed land. The improvements on the land were demolished and a modern strata-titled medical centre has been erected upon it. The site has been surveyed since sale and 532 square metres was dedicated for park purposes. Mr Goggins describes the access to this sale site as somewhat difficult. The sale price equates a value of $186 per square metre for the net area.
Sale No 11 – Lot 12 on RP 40218 – 506 square metres – LJ Adams to BD and LC Ruby on 22.02.94 for $120,000 – situation 16 Railway Parade, Nerang.
Mr Goggins comments that this is a narrow frontage “Comprehensive Development” zoned site situated below street level located east of the Pacific Highway. It is improved with a highset fibro cement clad dwelling. Mr Goggins is of the opinion that this area, being east of the Pacific Highway, is a vastly inferior location when compared with the resumed land. The sale price equates a value of $237 per square metre improved.
Sale No 12 – Lot 8 on RP 40218 – 506 square metres – B Ward and M Kimura to NR Cooney on 23.12.93 for $140,000 – situation 24 Railway Parade, Nerang.
Mr Goggins describes this as a narrow frontage “Comprehensive Development” zoned site situated below street level and located east of the Pacific Highway. It is improved by a lowset brick dwelling. Once again Mr Goggins says that this area, being east of the Pacific Highway, is a vastly inferior location compared with the resumed land. The sale price equates a value of $277 per square metre improved.
It is to be noted that I have omitted reference to Mr Goggin’s Sales Nos 8, 9 and 10 which are respectively situated in Mudgeeraba and Oxenford. I consider these sales to be of less significance as a valuation basis than the sales in the immediate vicinity of Nerang.
Mr Goggins told us that having regard to the overall sales evidence in the general locality and to all factors influencing value, and giving consideration to the potential of the subject property in accordance with Mr Dredge's town planning advice, he assesses the unencumbered fee simple value of the subject property for resumption purposes as at resumption date to be $190,000. This value can be apportioned as follows:Land 836m² zoned “Residential A” with potential as previously outlined
Adopt $165,000 ($197m²)
Improvements - added value in situ $ 25,000
Total $190,000
It is to be noted that this valuation represents a value of $227 per square metre improved as compared with the previously tabulated values per square metre reflected by the sales evidence,
Mr Goggins told us that in valuing the resumed land at $165,000 he took into account the risks associated with the town planning requirements to use the property for a higher and better use than “Residential A”. He did this by making a deduction of $20,000 or $30,000 from its market value had the necessary town plan approvals been in place. Should the highest and best use of the resumed property been as a “Residential A” zoned parcel suitable for home occupation, Mr Goggins suggested someone would have paid $160,000, or perhaps more for it, depending if the home occupier was a chiropractor or someone who wanted the exposure, but he stressed that this suggested price does not include any potential at all for commercial rezoning.
Respondent’s Valuation Evidence – Mr TJ Lacey
In valuing the resumed property Mr Lacey told us that he also had relied upon town planning advice as to the highest and best use of the resumed land. Based on that advice (from Humphreys, Reynolds and Perkins) he has adopted a highest and best use as at the date of resumption as being a dwelling house with the possibility of a home occupation.
Mr Lacey describes the nature of the resumed land as having a gentle slope falling away from the Pacific Highway frontage, with the lowest point being near the western corner of the street alignment along Nerang-Connection Road. He says the land had adequate drainage and he does not anticipate that the site would be flood affected. It has a predominantly south-westerly aspect although Mr Lacey suggests it could be argued, because of its two street frontages, that the land has an east or south-easterly aspect. Because of its position adjoining the Pacific Highway, Mr Lacey says the resumed land suffers from traffic noise as a “Residential A” site.Mr Lacey describes the dwelling house on the resumed land as being at resumption date still in its original condition, and it had been well maintained at the relevant date. It was somewhat surprising to hear during the course of his evidence, that Mr Lacey had not inspected the dwelling house internally. The reason for him not having done so at the date of his first two inspections (5 January 1995 and 14 January 1997) was that his client (the Gold Coast City Council) asked him not to approach the owner. But it is to be observed that by 14 January 1997, the resumed property was already in the ownership of Council. Notwithstanding his lack of internal inspection of the dwelling house, Mr Lacey offered the opinion that its value would be more like $5,000 on a removal basis rather than $25,000 or $30,000. It is to be noted that Mr Lacey valued the resumed property in 1995 at $120,000, and in 1997 at $110,000. He did not apportion his valuation of $110,000 as between the value of the dwelling house which was on the resumed land at resumption date and the land itself.
Mr Lacey also has tabulated a number of sales upon which he relies for his valuation assessment. They are all located within the Nerang area. Details are:
Sale No 1 – 18 Railway Parade, Nerang – 506 square metres – McHaesp Pty Ltd to C Bonner in June 1996 for $90,000 – zoning “Comprehensive Development”.
Mr Lacey describes the improvements on the sale land as comprising a semi-modern, highset, chamferboard dwelling with a single lock-up garage. He points out that the property is situated opposite the Pacific Highway from the subject land, and has good access and exposure to highway traffic. Mr Lacey says the zoning allows flexibility to its alternative use for commercial purposes. He considers the sale price to reflect mostly residential value, and that the 18 Railway Parade property is overall comparable with the resumed property but points out it is smaller in area.
Sale No 2 – 34 Mount Street, Nerang – 506 square metres – Public Trustee to R Dinte in October 1996 for $105,000 – zoning “Comprehensive Development”
Mr Lacey describes the improvements on this land as being a lowset brick dwelling with a single carport. Although it is located near the Pacific Highway, Mr Lacey told us that it has no exposure to highway traffic. He says the zoning allows flexibility to its alternate use for commercial purposes but once again he feels the sale price reflects mostly residential value. Overall he considers 34 Mount Street to be comparable with the resumed property but again points out it has a smaller land area.
Sale No 3 – 18 Nerang-Broadbeach Road, Nerang – 1093 square metres – P & T Panitz to IV Frahm in November 1996 for $137,000 – zoning “Residential A”.
Mr Lacey says this land is improved with a semi-modern lowset, brick and tile roof dwelling with a double lock-up garage situated on a double allotment. He says the land is elevated above the road. The dwelling is well maintained and has a tidy presentation. Mr Lacey points out that Nerang-Broadbeach Road carries a medium to heavy volume of passing traffic and the property suffers from road noise. He regards the sale property to have a superior residential amenity to that of the resumed property. Subsequent to the sale date the purchaser has applied for a home occupation permit from the Council.
Sale No 4 – 58 Nerang-Broadbeach Road, Nerang – 602 square metres – GT and J Pty Ltd and others to A Smith in June 1996 for $118,000 – zoning “Residential A”.
Mr Lacey describes the dwelling on this sale land as comprising a lowset brick and metal roof building with a single lock-up garage. The dwelling is neat and tidy, however it only has an average street presentation. This sale property also suffers from road noise because of its busy road location. Overall Mr Lacey considers this sale property to be comparable with the subject property.
Sale No 5 – 20 New Street, Nerang – 1320 square metres – V Rondale Pty Ltd to PM and R Kingston and others in January 1998 for $200,000 – zoning “Comprehensive Development”.
Mr Lacey says this site is improved with a small, older style, fibrous cement dwelling plus detached metal shed. The property is located opposite the Nerang Mall Shopping Centre and falls within Precinct 7 of the Nerang Development Control Plan. Mr Lacey points out that the zoning allows alternate use for commercial development. The sale price is considered by him to reflect its commercial potential. He calculates the sale to show approximately $151 per square metre of site area. Mr Lacey regards this sale property to be superior to the resumed property.
Sale No 6 – 6 Railway Parade, Nerang – 506 square metres – V Riley to L & L Holt in May 1997 for $116,000 – zoning “Comprehensive Development”.
Mr Lacey describes the improvements on this sale land to be a semi-modern highset hardiplank dwelling with a fibro roof and single garage beneath. The property is situated opposite the subject land and has good exposure and access to the Pacific Highway. The zoning allows flexibility to alternate use for commercial purposes. Mr Lacey says the sale price appears to reflect mostly residential value. The sale date is after the date of resumption and the market has, in Mr Lacey’s opinion, shown a slight improvement by mid-1997. The sale site is smaller than is the subject land.
Sale No 7 – 8 Railway Parade, Nerang – 506 square metres – G & S Issell to P Rulegrove Pty Ltd in June 1997 for $125,000 – zoning “Comprehensive Development”.
Mr Lacey comments that the improvement on this sale site comprises a semi-modern, lowset, hardiplank dwelling, with a fibro roof and single carport. He sees this sale property and its comparison with the resumed property to be similar to the comments he made with respect to his Sale No 6.
Mr Lacey is of the opinion that the improvements existing on the resumed land at resumption date were primarily suited for residential purposes and he anticipates that to convert to home occupation would require additional outlays. He says that at the date of resumption the Gold Coast residential market was in recovery mode, subsequent to a decline in property values and volume of sales due to the rise in interest rates in late-1994 and early 1995. Demand across the market was slow and values were only beginning to stabilise by late-1996. He considers that his property sales which are situated in Railway Parade are the most comparable for comparison with the resumed property.
During the course of his evidence Mr Lacey was asked to furnish his opinion as to the value of the resumed property had it had potential to be rezoned for commercial purposes. After some deliberation, he came to the view that its value on that basis would be $150,000 or thereabouts.
Before proceeding to my determination of compensation I might say that the treatment of the sales evidence by each of the valuers is somewhat unusual. In most cases, the sale properties were improved with dwelling houses of varying standards, and no attempt was made by either valuer to analyse the sales by assessing the added value, where applicable, of the improvements on the sale lands at each respective sale date, notwithstanding that they obviously, in many cases, had considerable added value when the highest and best use of the sale properties was either for “Residential A” use or as-of-right use within the “Comprehensive Development” zoning; e.g. use by an architectural firm. Each valuer preferred to use an overall value comparison between the subject property and the sale properties, although, it must be said, that Mr Goggins did apportion his valuation of the subject property as between the land and the dwelling house.
Now while I have already offered the comment that I find it unnecessary to reconcile the conflicting opinions of the town planners, taking an overview of their evidence, I am inclined to the view that the resumed property, at resumption date, stood possessed of a higher and better use potential than that of a “Residential A” property with the possibility of home occupation, notwithstanding its access difficulties. This is especially so if I am to disregard the “Public Open Space” land use designation in the Strategic Plan and “Public Open Space and Recreation” in the Nerang Development Control Plan. These designations must be disregarded as they are obviously the precursor to the eventual resumption of the land for park purposes (vide Housing Commission of NSW v. San Sebastian Pty Ltd (1978) 140 CLR 196 (HC) and when they are disregarded, then Mr Perkins’ reference to many of the as-of-right and with consent uses outlined earlier in this judgment (pp. 9 and 10) conflicting with the designations loses significance. Certainly such greater potential use should be low key and not one which would generate such an increased volume of vehicular traffic ingressing and egressing the property as to create intolerable additional traffic problems in the Nerang-Connection Road than those which already existed at resumption date. I might comment here that the general thrust of Mr Holland’s traffic engineering evidence seems to have been directed to the possibility that the claimant company may contend that the highest and best use of the resumed land would be for retail/commercial development such as that along Station Street. This type of development would naturally generate a considerable volume of traffic. But that is not what Mr Dredge had in mind. Perhaps a rezoning to the “Special Facilities” zone as postulated by him would be a desirable outcome, since in this zone Council is empowered to impose stringent control over development and ensure it to be low-key.
But I am not persuaded by Mr Goggins’ evidence that his valuation of the resumed property in the sum of $190,000 is supported by the sales evidence, particularly since the sales selected by him in what I regard as the most comparable area (Railway Parade) reflect the higher range of prices in that street. On the other hand, Mr Lacey’s reliance on his Sale No 1 (18 Railway Parade) results in his valuation as a “Residential A” site with potential for home occupation being conservative. The evidence of Mr Goggins is that this is an out-of-line (low) sale due to the circumstances of it. He telephoned the purchaser who told him the property was on the market for $120,000. The vendor was a building company in which the father had died and which was inherited by his two sons who needed money for a development on the North Coast. The purchaser offered the vendors $90,000 and “they took it”.
The Court has to place itself in the position of the hypothetical prudent purchaser who desires to buy the property and being properly informed of all matters which are likely to affect its value. In this case, the Court is in the favourable position of having the benefit of the advice not only of the valuers, but each town planner and the traffic engineer. Having regard to the whole of the evidence, some of which is not discussed in this judgment for the sake of it being as brief as it can reasonably be, I have come to the conclusion that a fair and equitable compensation award for the resumption of the land and improvements is $160,000.
Compensation for disturbance has been agreed in the sum of $3,000 for legal costs and valuation fees involved in the preparation of the claim for compensation. Accordingly, my total award of compensation is One hundred and sixty-three thousand dollars ($163,000).
Section 28 of the Acquisition of Land Act 1967 provides that the Land Court may award interest on compensation determined by it and that such interest shall be at such rate per centum as the Land Court deems reasonable. The section further provides that interest shall not be payable in respect of any amount of compensation advanced under section 23 of the Act.
The Court is advised that an advance of $127,550 against compensation was paid by the resuming authority to the claimant company on 27 August 1998. Accordingly, I order that in addition to compensation payable, interest be paid by the respondent to the claimant company at the rate of 7 percent per annum on the following sums and for the following periods:
On the sum of $160,000 for the period commencing 8 November 1996 (the date of resumption) and ending on 27 August 1998 (the date of the payment of the advance); and
On the sum of $32,450 for the period commencing 28 August 1998 and ending upon the day immediately preceding the date upon which final payment of compensation is made; and
On the sums of $1,800 (valuation fees) and $1,200 (legal fees) for the period commencing on the date the fees were paid by the claimant company (if they were paid) and ending upon the day immediately preceding the date upon which final payment of compensation is made.
(CH Carter)
Member of the Land Court
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