Savimaki v Sunshine Coast Regional Council
[2013] QLC 33
•7 June 2013
LAND COURT OF QUEENSLAND
CITATION: Savimaki & Ors v Sunshine Coast Regional Council
[2013] QLC 33PARTIES: Hannu Alvar Savimaki, Matti Johannes Savimaki and Pentti William Savimaki
(applicants)v.
Sunshine Coast Regional Council
(respondent)FILE NO: AQL213-10 DIVISION: General Division PROCEEDING: Application to determine compensation under the Acquisition of Land Act 1967 DELIVERED ON: 7 June 2013 DELIVERED AT: Brisbane HEARD ON:
5-9, 13, 14 and 16 September 2011
8 October 2012HEARD AT: Brisbane and Maroochydore MEMBER: PA Smith ORDERS: 1. Compensation is determined in the sum of Six Million Eight Hundred and Seventy-Six Thousand, Five Hundred and Ninety Dollars ($6,876,590).
2. Interest is awarded on the determined compensation in accordance with the rates published on the Land Court’s website, taking into account the full amount of compensation as at the acquisition date; the date the advance was paid, and the date disbursements were paid.
3. The quantum of interest is to be as agreed by the parties within 28 days of the date hereof, such agreement to be advised to the Court at that time, or, failing agreement, to be determined by the Court.
4. Either party may make submissions as to the compensation they consider should be payable by the respondent, if any, with respect to the reserve area of 0.8119 ha within 14 days of the delivery of this decision. The other party may respond to any such submissions made within a further period of 14 days.
5. Either party may request that the issue of compensation payable with respect to the reserve land be subject to further oral submissions.
CATCHWORDS: Resumption ― Pointe Gourde principle ― extension of existing regional airport ― principle based in statutory application, not common law ― difficulties in application ― guidelines ― resumption held part of wider scheme for airport extension ― changes in infrastructure and planning due to scheme to be ignored
Evidence ― Rule in Jones v Dunkel ― constructing authority in a position to lead evidence as to nature of scheme ― no evidence called ― Court permitted to draw inference adverse to constructing authority
Valuation ― offer to purchase by constructing authority ― whether admissible as evidence of value ― competing authorities ― Land Court not bound by strict rules of evidence ― offer held admissible ― question of relevance and weight
Resumption ― competing evidence ― if evenly balanced, whether Court should favour resumee
Valuation ― evidence of market interest from commercial agent ― not accepted as evidence of value ― but indicates market interest by potential purchasers for development purposes
Evidence ― expert witness ― some evidence outside field of expertise ― such evidence to be disregarded by Court
Practice and Procedure ― amended written submissions after completion of final oral submissions ― generally not appropriate for Court to consider unless leave earlier given ― rationale of such approach
Resumption ― “floating” road reserve within resumed land ― need to deduct such area in calculating area resumed for resumption compensation
Acquisition of Land Act 1967
Land Court Act 2000Auxil Pty Ltd & Anor v Terranova & Ors (2009) 260 ALR 164
Commissioner of Succession Duties (SA) v Executor Trustee and Agency Company of South Australia Limited & Ors (1947) 74 CLR 358
Cordelia Holdings Pty Ltd v Newkey Investments Pty Ltd [2004] FCAFC 48Department of Natural Resources and Mines v QNI Metals Pty Ltd & Anor (2002) 23 QLCR 261
Goold v Commonwealth of Australia & Anor (1993) 114 ALR 135
Housing Commission of New South Wales v San Sebastian Pty Ltd & Ors (1978) 140 CLR 196
Ipswich City Council v Wilson [2011] QLAC 6
Jones v Dunkel & Anor (1958-1959) 101 CLR 298
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11
MMAL Rentals Pty Ltd (ACN 008 293 490) & Ors v Bruning (2004) 63 NSW LR 167
McDonald v The Deputy Federal Commissioner of Land Tax for New South Wales (1915) 20 CLR 231
Nelungaloo Pty Ltd v The Commonwealth & Ors (1948) 75 CLR 495
Pointe Gourde Quarrying & Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565
Roads and Traffic Authority of New South Wales v Perry & Anor (2001) 52 NSW LR 222
San Sebastian Pty Ltd v Housing Commission of New South Wales (1977) 37 LGRA 191
Spencer v The Commonwealth of Australia (1907) 5 CLR 418
Springfield Land Corporation (No 2) Pty Ltd & Anor v Queensland & Anor [2011] 276 ALR 485
Wilson v Ipswich City Council [2011] QLC 8APPEARANCES: Mr GW Diehm SC and Ms JS Brien of Counsel, instructed by Butler McDermott Lawyers for the applicants
Mr CL Hughes SC, Mr A Skoien of Counsel and Ms S Holland of Counsel instructed by Legal Services, Sunshine Coast Regional Council for the respondent
Table of Contents
Background.......................................................................................................................................... 5
The claim.............................................................................................................................................. 7
The hearing.......................................................................................................................................... 8
Delay.................................................................................................................................................... 9
What is a scheme?............................................................................................................................. 12
What is the relevant scheme for the acquisition of the subject land?............................................. 17
The respondent’s offer to purchase the subject land prior to resumption...................................... 23
Expert evidence................................................................................................................................. 38
Civil engineering and traffic evidence.............................................................................................. 38
Town Planning evidence.................................................................................................................... 43
Economic need evidence................................................................................................................... 46
Ecological issues................................................................................................................................ 50
Good quality agricultural land evidence........................................................................................... 51
Flooding evidence.............................................................................................................................. 53
Access to respondent’s sewerage treatment plant.......................................................................... 57
Market interest in the subject land.................................................................................................. 58
Valuation evidence............................................................................................................................ 59
Valuation evidence - Mr Henderson................................................................................................ 60
Valuation evidence - Mr Slater......................................................................................................... 66
Conclusions........................................................................................................................................ 70
Orders................................................................................................................................................ 73Background
[1]In 1946 the applicants’ father purchased farming land at Marcoola on the Sunshine Coast and commenced farming sugarcane. Over the years, the size of the cane farm increased with additional purchases of land. Ultimately, the applicants became the joint owners of the land and continued the farming of sugarcane. In 2003, following the closure of the Moreton Sugar Mill in Nambour, farming continued on a diminished scale making mulch. For a very lengthy period of time, the Sunshine Coast airport has been in very close proximity to the Savimaki farm lands “as the crow flies”, sharing a common boundary. There has been, and continues to be, no road link directly between the airport and the Savimaki farm land. Access to the Savimaki farmland is via Finland Road and, travelling via this route, the Sunshine Coast airport is many kilometres by road from the Savimaki farmlands.
[2]From as early as 1976, the respondent was considering the future development of the Sunshine Coast airport.[1] On 25 October 1985 the respondent (as then constituted) wrote to the applicants advising of its intention to further develop the Sunshine Coast airport (then known as the Maroochy airport) by way of construction of an east-west runway, subject to funding becoming available from the Federal Government. The proposed extensions included part of the Savimaki farmland. The applicants were advised that the acquisition “may be some time off”.[2]
[1] See Exhibit 46.
[2] See Exhibit 4 HAS1 page 14.
[3]On 21 December 2006 the respondent issued three Notices of Intention to Resume the Savimaki land. The respondent also issued a Statement of Reasons for Acquisition of Land, which was undated but which accompanied each of the Notices of Intention to Resume.
[4]The first Notice of Intention to Resume related to Lot 5 on SP133655; the second related to part of Lot 1101 on RP856171; and the third related to part of Lot 3 on RP856172. The land subject to the Notices of Intention to Resume, which totalled 65.158 ha, was subsequently resumed by the respondent on 18 July 2008.
[5]There is an issue with the area of land resumed, particularly with respect to Lot 3 on RP 856172, which does make a potentially significant difference to the final quantum of the award for compensation. The gazette notice for this block which became Lot 1105 on SP 206553, refers to “area 24.4819 ha exclusive of 8,119 m² reserved for road purposes”.[3]
[3] Exhibit 4 HAS39 page 181.
[6]Of course, 8,119 m² equals 0.8119 ha. Mr Henderson, the valuer for the applicants, has not included the land reserved for road purposes in either his area resumed from Lot 3,[4] or in his total area of land resumed. [5] The total area of land resumed which he uses for his calculations is 65.158 ha.
[4] Exhibit 9 page 2.
[5] Exhibit 9 pages 2 and 10.
[7]On the other hand, Mr Slater, the valuer for the respondent, in his report[6] refers to the area resumed for Lot 3 as being 24.48 ha, with the following notation added:[7]
“NOTE: The area resumed for Lot 3 includes 0.8119 ha. ROAD RESN”
[6] Exhibit 20.
[7] Exhibit 20 page 2.
However, in his conclusion to his report, Mr Slater uses the resumed area of 65.96 ha in making his calculations.[8] Importantly, Counsel for the respondents in their submissions rely on Mr Slater’s report by stating the total area of resumed land as 65.96 ha, including 24.48 ha with respect to Lot 3.[9]
[8] Exhibit 20 page 8.
[9] Respondent’s submissions 20 September 2012 paragraph 1.7. It should be noted that the reference in the submissions to Lot 1105 in the new reference to what was Lot 3.
[8]I do not recall Counsel for either party raising the issue of compensation with respect to the 0.8119 ha reserved for road purposes. It must be noted that there was not a specified location for such reserved land on Lot 3. It was a “floating” reserve[10] over all of Lot 3. Prior to the resumption, therefore, the 0.8119 ha road reserve could have been actually located in any part of Lot 3, including wholly within that part of Lot 3 which was resumed; wholly within that part which was not resumed; or in any ratio in either part.
[10] See s.23A Land Act 1994.
[9]In my view, the clear reading of the gazettal of the resumption is that the 0.8119 ha Reserve for Road Purposes has effectively been located within the resumed part of Lot 3, meaning that the area of land actually taken from the applicants with respect to Lot 3 is 23.67 ha and a total area of 65.158 ha. This view is supported by the new plan of Lots 1104 and 1105 on SP 206553. As regards the area of Lot 1105, the plan shows 24.4819 ha minus 0.8119 ha RD Resn for a total area of 23.67 ha.[11] Interestingly, there is an endorsement on SP 206553 in the following terms:
“The area 0.8119 ha reserved for Road Purposes in Lot 3 on RP856172 may be allocated to Lot 1105 as shown hereon - 2007/010408.
Power exercised: Section 23A of the Land Act 1994[signature] 15/10/2009
Renee Grant, Senior Land Officer Datea duly authorised delegate of the Minister under the current Land Act (Ministerial) Delegation”
[11] See Annexure D to Exhibit 20.
[10]It is of course of note that the Minister’s delegate made her decision under s.23A of the Land Act 1994 on 15 October 2009, over a year after the date of resumption.
[11]It is peculiar that the applicants are contending for compensation on the basis of the smaller area of resumed land, excluding the reserved land, and the respondent is contending for compensation on the basis of the larger area of resumed land. On the respondent’s case of compensation at the rate of $75,000 per ha, this difference amounts to an increase of $60,892.50 in compensation, while on the applicants’ figure of $125,000 per ha, it amounts to a reduction in compensation payable to the applicants of $101,487.50.
[12]For the purposes of this decision, I will base my calculations on the total area of resumed land being 65.158 ha. That is, excluding the reserved land of 0.8119 ha. However, as it is apparent that this potentially significant issue was not specifically addressed by Counsel for either party, with both parties proceeding on the basis of different consequences for the area of 0.8119 ha, I will allow both parties a period of 14 days following delivery of this decision to make any written submissions they consider appropriate as to the compensation, if any, which should be paid by the respondent with respect to the reserve area of 0.8119 ha. If any written submissions are made, the other party is granted a period of 14 days to respond to those submissions in writing. Either party may request that this issue also be subject to further oral submissions.
[13]Following the resumption, the applicants were left with balance lands of 53.067 ha, being the remaining parts of Lots 3 and 1101, which lie to the western side of the Sunshine Motorway. All of the Savimaki land laying to the east of the Sunshine Motorway was resumed on 18 July 2008.
[14]The parties have been unable to reach agreement as to the quantum of compensation payable by the respondent to the applicants and accordingly these proceedings have been instituted.
The claim
[15]By its amended originating application filed on 16 September 2011, the applicants seek the following orders:
“…
2. That the compensation be assessed as follows:-
(a)Value of land taken $8,150,000.00
(b)Legal fees to 21 July 2010 $42,505.14
(c)Valuations Fees - Rodney Brett $13,715.00
(d)Town Planning Fees - Conics $17,061.00
(e)Cardno $1,584.00
$8,224,865.10
3. That the Respondent Council be ordered to pay interest pursuant to the published Land Court Rates.
4. That the Respondent Council pay the Applicant’s costs.
… ”
[16]By notice filed on 24 August 2011, “the Applicants assert that the highest and best use of the land as at the date of acquisition was for Future Light Industrial including aviation related uses and the balance land used for Outdoor Recreation”. Additionally, by way of letter dated 22 August 2011 from their solicitors Messrs Butler McDermott to the respondent, the applicants provided the following particulars:
“1. That part of the subject land that could be used for Light Industry purposes is located:
(a)In the area generally identified on the plans attached to the joint expert report of Neil Collins and Michael Della dated 22 July 2011; or
(b)on other parts of the land subject to future detailed expert investigation, design and advice.
2. Outdoor recreation uses could be located on any part of the resumed land together with or without the balance land with the design the subject of future detailed expert investigation and advice.
3. Vehicle access will be achieved from the local road network.
4. The location of parking is a matter for future detailed expert investigation, design and advice.
The Applicant’s have asserted a hypothetical highest and best use of the land for the purposes of assessing compensation. The Applicant’s do not seek to rely upon any specific development proposal.”
[17]On 21 November 2008, the respondent paid an advance totalling $4,930,000.00 to the applicants. Of that sum, $400,000.00 was paid with respect to Lot 5 on RP 133655, $1,820,000.00 was advanced with respect to Lot 3 on RP 836172 and $2,710,000.00 was paid with respect to Lot 1101 on RP 856171.[12]
[12] Transcript 1-20 Lines 30-38.
[18]Prior to the completion of the hearing, agreement was reached between the applicants and the respondent as to the quantum of disbursements. The disbursements were agreed in the sum of $35,000.00.[13] The agreed sum for disturbance items up until the date of the lodgement of the claim for compensation with the respondent is broken up as follows:
2B Legal Fees $12,416.00
2C Valuation Fees $10,000.00
2D Town Planning Fees $11,000.00
2E Engineering Fees (Cardno) $1,584.00TOTAL $35,000.00[14][13] See Transcript 7-7 Line 47.
[14] Transcript 7-8 Lines 6-12.
The hearing
[19]The hearing of this matter commenced in Maroochydore on 5 September 2011. On 6 September, an all day inspection was had of the subject lands and various sale properties. The hearing then resumed in Brisbane on 7 September 2011 and finally concluded on 16 September 2011. Unfortunately, for matters which will be addressed under the following heading of “Delay” the matter was brought back on before the Court on 8 October 2012.
[20]The applicants were represented throughout the hearing by Mr Diehm of Senior Counsel, assisted by Ms Brien of Counsel, instructed by Butler McDermott Lawyers. The respondent was represented by Mr Hughes of Senior Counsel with Mr Skoien and Ms Holland both of Counsel, instructed by Legal Services for the respondent Council.
[21]Evidence at the hearing was given by one of the applicants, Mr Hannu (Hans) Savimaki as well as 13 experts who gave oral evidence. In addition to those 13 experts, two other experts, both on behalf of the applicants, participated in joint expert reports that resulted in no areas of disagreement with their counterpart and they were accordingly not called by the applicant to give evidence, making a total of 15 experts in all. Expert evidence was called by the applicants from the following:
·Mr Rafter, valuer and commercial agent
·Dr Johnson, engineer
·Mr Perkins, town planner
·Mr Haratsis, economist
·Mr Henderson, valuer
·Mr Chenoweth, ecologist (joint report only - no separate or oral evidence)
·Mr Della, civil engineer (joint report only - no separate or oral evidence)
[22]The respondent called expert evidence from the following witnesses:
·Mr Healy, traffic engineer
·Mr Gould, civil engineer
·Mr Duane, economist
·Mr Schomburgk, town planner
·Dr Olsen, ecologist
·Mr Sutherland, agricultural and environmental scientist
·Mr Collins, civil engineer
·Mr Slater, valuer
[23]In addition to the experts’ reports, a substantial amount of other material was tendered in evidence at the hearing. For the purposes of my decision, I have referred to the salient points that arise from the evidence in the hearing. In reaching my conclusions, I have taken account of and carefully considered all of the evidence placed before me.
Delay
[24]As mentioned above, the hearing of this matter substantially concluded on 16 September 2011. On the final day of the hearing, oral submissions were given by Counsel for both the applicants and the respondent, both supported by comprehensive written submissions. One important feature which was of course missing from the written submissions was any specific reference to the transcript. Due to the nature of some of the evidence given in this matter, I certainly considered that specific transcript references would be a valuable tool. Counsel for both the applicants and the respondent undertook to provide the Court and each other with updated written submissions setting out their comprehensive transcript references once the transcript of the proceedings became available. Accordingly, the applicants’ Counsel provided their amended written submissions setting out the transcript references on 23 December 2011.
[25]Unfortunately, despite numerous assurances to the Court that the respondent’s submissions were soon to be provided, the submissions from the respondent with the marked up transcript references were not filed in the Court until 20 September 2012. After they were received, Counsel for the applicants took objection to some of the submissions made insofar as those submissions attempted to go further than the simple inclusion of transcript references to include submissions of substance which had not previously been made to the Court. I heard the matter on 8 October 2012, at which time I closed the submissions and indicated that I would deal with any of the late submissions, insofar as they were relevant, in my consideration of the matter.
[26]Witten submissions were provided to the court by both parties regarding the respondent’s amended submissions of 20 September 2012. The written submissions were supported by oral argument.
[27]Counsel for the applicants submitted that parties to litigation “have no entitlement after the hearing of a case is finished and judgment is reserved to unilaterally furnish submissions to the court on a matter in issue. In that respect parties must stay within the bounds of any leave already given”.[15] They indicated that, if they were required to respond to the new submissions, it “would put our clients to significant cost as substantial evidence would need to be revisited by Counsel to properly respond”.[16]
[15] Applicants’ submissions 27 September 2012 paragraph 4.
[16] Applicants’ submissions 27 September 2012 paragraph 6.
[28]The applicants’ counsel relied in particular on the decision of the Full Court of the Supreme Court of Western Australia decision in Boothey v Boothey[17] where Ipp J had this to say:[18]
“In my opinion, the making of further submissions after completion of oral argument is a practice which, ordinarily, should not occur. As a general rule, after oral argument has concluded and judgment has been reserved, counsel should not be free to file written submissions advancing fresh or supplementary arguments. Such a course delays the delivery of judgment, results in additional costs, is often unfair to other parties, and is generally alien to our appeal system which is based on written outlines of argument before and oral argument during the hearing. It is well known that at times, such as when the oral addresses have not bee completed before the allotted time, or when a point has unavoidably taken counsel by surprise, or when a new issue arises unexpectedly, leave will be given to counsel to make further submissions in writing, but these are exceptional circumstances.”
[17] Unreported judgments WA - BC9700784 13 March 1997.
[18] At page 4.
[29]Counsel for the applicants then made the following submissions:[19]
“For these reasons the Court is urged to make its decision disregarding the Respondent’s amended written submissions insofar at least as the references beyond the agreed approach are concerned. The offending amendments are the commentary in footnote 8; the submission in footnote 34; the last sentence in footnote 35; the submission in footnote 44; footnote 46; footnote 47; footnote 49; footnote 52; footnote 53; footnote 54; footnote 55; footnote 93 and footnote 94.”
[19] Applicants’ submissions 27 September 2012 paragraph 7.
[30]Counsel for the respondent agrees with the applicant to the extent:[20]
“‘that the supplementary written submissions would be limited to adding transcript references as well as any correction needed to be made where the evidence was wrongly stated in the written submissions to be handed up to the Court during addresses’ ”
[20] Respondent’s submissions 5 October 2012 paragraph 2.
However, Counsel go on to explain that the agreement reached by Counsel, as stated in Court, was an agreement to not completely rehash the submissions but to review the submissions “with the benefit of a review of the available transcript”.[21]
[21] Respondent’s submissions 5 October 2012 paragraph 3.
[31]The respondent’s counsel then go on in their submissions to assert as follows:[22]
[22] Respondent’s submissions 5 October 2012 paragraphs 6-8.
“6. Not only were the tracked changes to the further submissions necessary to address the transcript references when they became available; to make relevant those transcript references; but also to address, upon reflection with the transcript; particularly the effect of the evidence actually given having regard to the written submissions provided on behalf of the Appellants on 16 September 2011 by Mr Diehm SC and Ms Brien.
7. We reject any notion that due to the passage of time the augmentation of the Respondent’s original submissions complained about (which complaints are limited to 13 in number) would put the Appellants ‘to significant cost as substantial evidence would need to be revisited by Counsel to properly respond’. With the exception of the references to the rule in Jones v Dunkel (which would not require any detailed ‘revisit’ of the evidence and which respond to the Claimants’ submissions on 16 September 2011 that that rule should be invoked), the amendments about which complaint is made all direct attention to specific passages of the transcript.
8. If Counsel wish to proceed then they should do so. Otherwise, to ensure that the Court is properly informed of the nature of the evidence and position of the parties (an in particular the Respondent) in an equitable manner, we request the Court to take into account the revised submissions including the paragraphs complained of.”
In my view, a number of the respondent’s amended submissions go beyond the agreement as agreed between counsel and presented to the court. Accordingly, I have decided to disregard the following parts of the respondent’s amended submissions of 20 September 2012:
·the commentary in footnote 8
·the submission in footnote 34;
·the last sentence in footnote 35;
·the submission in footnote 44;
·footnote 46;
·footnote 47;
·footnote 49;
·footnote 52 but excluding the first footnote transcript reference which is retained;
·footnote 53;
·footnote 54;
·footnote 55;
·footnote 93; and
·footnote 94
[32]For completeness, I must of course add that, although I have disregarded certain parts of the amended submissions of the respondent, I have taken into account all of the evidence placed before me during the hearing, including all of the oral evidence as recorded in the transcript. This of course includes passages of transcript that the respondent referred to in the excluded parts of the amended submission.
[33]Also, for completeness, I should advise that, had I decided to include all of the amended submissions of the respondent in the submissions which I considered, my ultimate findings in this matter would not have changed.
[34]It should be noted for the record that Mr Skoien of Counsel took personal responsibility for the delay of over 12 months in providing the marked up submissions to the Court and to the applicants. I also noted on 8 September 2012 that the applicants did not raise issue with the Court as to the respondent’s delay in providing the submissions to either themselves or to the Court. Of course, in the 13 months since the original end of the hearing, I conducted many matters including a number of significant substance which then received a place “on the cab rank” ahead of this matter, which unfortunately led to additional delay in the matter being finalised.
What is a scheme?
[35]When land is compulsorily acquired by a constructing authority, there must be a stated reason for that acquisition. The underlying purpose for which the land is required is not something which has come into existence overnight; the constructing authority will, in most circumstances, have taken a period of time in developing its concepts before the purpose has crystallised such as to allow the specific resumption to occur. The development of the purpose of the resumption is what is frequently referred to as the scheme of the resumption.
[36]As at the date of the acquisition of the subject lands, s.20 of the Acquisition of Land Act 1967 (ALA) provided as follows:
“20 Assessment of compensation
(1)In assessing the compensation to be paid, regard shall in every case be had not only to the value of land taken but also to the damage (if any) caused by either or both of the following, namely—
(a) the severing of the land taken from other land of the claimant;
(b) the exercise of any statutory powers by the constructing authority otherwise injuriously affecting such other land.
(2)Compensation shall be assessed according to the value of the estate or interest of the claimant in the land taken on the date when it was taken.
(3)In assessing the compensation to be paid, there shall be taken into consideration, by way of set-off or abatement, any enhancement of the value of the interest of the claimant in any land adjoining the land taken or severed therefrom by the carrying out of the works or purpose for which the land is taken.
(4)But in no case shall subsection (3) operate so as to require any payment to be made by the claimant in consideration of such enhancement of value.”
[37]It is in the consideration of s.20 of the ALA that issues relating to the scheme underlying the acquisition become critical. This is because, as a proposition of law, this Court must set aside any increase or decrease in the value of the subject land brought about as a result of the scheme underlying the acquisition. This concept is often referred to as the Pointe Gourde[23] principle.
[23] Pointe Gourde Quarrying & Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565.
[38]The Pointe Gourde principle was recently considered by the High Court in the case of Springfield Land Corporation (No 2) Pty Ltd & Anor v Queensland & Anor[24] where French CJ, Gummow, Hayne and Crennan JJ, in their joint decision, had this to say:[25]
[24] [2011] 276 ALR 485.
[25] At pages 490-491 paragraphs [16] to [18].
“[16] Something first should be said respecting the ‘Pointe Gourde principle’. The arbitrator referred to the ‘possible overuse’ of the expression ‘the scheme underlying the acquisition’. This is associated with what was said by the Privy Council in Pointe Gourde Quarrying & Transport Co Ltd v Sub-Intendent of Crown Lands. But, while acknowledging the absence of the expression from s 20 of the Acquisition Act, the arbitrator said that its relevance and meaning in a particular case ‘will depend essentially upon the facts of the particular case’. Nevertheless, the arbitrator later concluded:
It is relevant to refer again briefly to the Pointe Gourde Case if only for the purpose of putting it aside as having no relevance to the question of enhancement to the other lands of the claimant as a consequence of the resumption. Pointe Gourde establishes authoritatively the principle that in valuing the resumed lands, one excludes as irrelevant for that purpose any appreciation or depreciation in the value of the resumed land brought about by the scheme underlying the resumption.
In the context of considering enhancement to other lands for the purposes of Section 20(3), the Pointe Gourde principle has no place. [Emphasis in original.]
[17] It is thus unnecessary to consider further in any detail the ‘Pointe Gourde principle’, despite a certain allurement which it appears to have exercised in some of the submissions to this court by the State of Queensland and the chief executive. However, it should be noted that recently the House of Lords has affirmed, consistently with what had been said by this court in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority, that there is no ‘common law’ principle derived from Pointe Gourde; the term ‘scheme’ was used there to explain and amplify the term ‘value’ as understood in particular statutory compensation systems commencing with the Land Clauses Consolidation Act 1845 (UK). These points were made by Lord Walker of Gestingthorpe and Lord Collins of Mapesbury in Transport for London v Spirerose Ltd.
[18] The present case turns upon the requirement in s 20(3) of the Acquisition Act that in assessing compensation account be taken, by way of set-off or abatement, of any enhancement of the value of the interest of the Springfield companies in any land adjoining the transfer land by the carrying out of the purpose for which the transfer land was taken.”
_______________
Footnotes omitted
Of course, for the purposes of the current case, what is being considered is the value of the subject lands as at the acquisition date pursuant to s.20(2) of the ALA.
[39]There have been numerous cases following the Pointe Gourde decision where the question of what is the scheme underlying the purpose of the acquisition has been considered.
[40]In Nelungaloo Pty Ltd v The Commonwealth & Ors[26] Dixon J explained the principles in this way:[27]
“As the object is to find the money equivalent for the loss or, in other words, the pecuniary value to the owner contained in the asset, it cannot be less than the money value into which he might have converted his property had the law not deprived him of it. You do not give him the enhanced value that may attach to his property because it has been compulsorily acquired by the governmental authority for its purposes (Vyrichelra Narayana Gajapatiraju v Revenue Divisional Officer, Vizagaptam(2)). Equally you exclude any diminution of value arising from the same cause.”
[26] (1948) 75 CLR 495.
[27] At 571.
[41]It is important to bear in mind that matters to be ignored under the scheme of the acquisition also include any particular designation in the planning scheme which reflects the intended public purpose for which the land is ultimately resumed. This proposition was clearly annunciated by the High Court in the case of Housing Commission of New South Wales v San Sebastian Pty Ltd & Ors.[28] In that case, the Court considered the effect of an interim development order which came into force a month after the resumption. The Court found that insofar as it involved a proposed zoning of the land which had been resumed, it was a step in the process of resumption and had to be ignored. In particular, I note what Jacobs J said in San Sebastian at p.214:
“In the circumstances of the present case it appears to me to be correct that there is no need to distinguish between a proposed use of the land in the Wooloomooloo Basin for public housing and the proposed zoning of the rest or most of the rest, of the land for residential development. Before the resumption the value of all of the land proposed to be zoned residential would have been affected by the proposal to establish the public work until it was known what particular land was intended to be resumed. …the proposed zoning was dictated by the proposed establishment of the public work.”
[28] (1978) 140 CLR 196.
[42]The High Court decision in San Sebastian affirmed the decision of the New South Wales Court of Appeal. In the New South Wales Court of Appeal in San Sebastian Pty Ltd v Housing Commission of New South Wales[29] Hope JA had made the following pertinent observations:[30]
“Thus in the railway cases, … it was not necessary for the exact identity of the proposed site of the works to be known … If the Government announced that an existing railway to A was to be extended to B, any resulting increase of the value of land in B would be disregarded, even though the exact route of the railway or the exact site of the new railway station was not known, or, before resumption, was changed to other land. …
The next question concerns the scope of the matters preceding the date of resumption which fall within the ambit of the qualification. That it can apply to matters other than the actual construction of the works, … has long been accepted … The decision to go ahead with the proposal or scheme which has resulted in the resumption of the land is clearly within the ambit of the qualification … such a decision is almost inevitably preceded by actions of many kinds which, if known, show that the works will possibly or probably be carried out. If they are actions by the authority who finally decides to carry out the works … and if they are part of a series of actions leading up to, and done in contemplation of, the making of the decision to construct the works, any alteration to the value of the land resulting from them should … fall within the ambit of the qualification. In Rugby Joint Water Board v Shaw-Fox [1973] AC 202 at p.215, Lord Pearson used the expression 'genesis … of the scheme' to describe actions of the kind I am seeking to define. In describing the effect of the qualification, Innes J said in Black v Commissioner for Railways (1890) 11 NSWR (L) 160 at p.165 … 'the land is to be assessed at the value it would have had if the railway for which it is resumed had never been contemplated.' … In my opinion Innes J correctly construed the qualification'.” (Emphasis supplied).
[29] (1977) 37 LGRA 191.
[30] At 202-203.
[43]A decision which, in my view, contains many judicial pronouncements relevant to the case at hand is Roads and Traffic Authority of New South Wales v Perry & Anor.[31] Handley JA made the following observations:[32]
[31] (2001) 52 NSW LR 222.
[32] At page 232-236.
“42 Wilson v Liverpool Corporation [1971] 1 WLR 302; [1971] 1 A11 ER 628, a decision of the Court of Appeal, contains a useful analysis of what constitutes a scheme for present purposes. (At 309; 634) Lord Denning MR said:
‘… A scheme is a progressive thing. It starts vague and known to few. It becomes more precise and better known as time goes on. Eventually it becomes precise and definite, and known to all. Correspondingly, its impact has a progressive effect on values. At first it has little effect because it is so vague and uncertain. As it becomes more precise and better known, so its impact increases until it has an important effect. It is this increase, whether big or small, which is to be disregarded at the time when the value is to be assessed’.
43 Widgery LJ said (at 310; 635):
‘… Whenever land is to be compulsorily acquired, this must be in consequence of some scheme or undertaking or project. Unless there is some scheme or undertaking or project, compulsory powers of acquisition will not arise at all, and it would, I think, be a great mistake if we tended to focus our attention on the word ‘scheme’ as though it had some magic of its own. It is merely synonymous with the other words to which I have referred, and the purpose of the so-called Pointe Gourde rule is to prevent the acquisition of the land being at a price which is inflated by the very project or scheme which gives rise to the acquisition … It is for the tribunal of fact to consider just what activities ― past, present or future ― are properly to be regarded as the scheme within the meaning of this proposition.’ (emphasis supplied)
…
57 In the Raja’s, case the identification of a separate water supply scheme dating from 1926, which was not simply part of an evolving harbour scheme dating from before 1920, was fundamental to the decision. The development of the harbour, the malaria problem and the projected industrial development had increased the value of the Raja’s land prior to the inception of the water supply scheme in 1926. Fully informed parties would have been aware of the land’s potential and the increase in value.
…
60 The Pacific Highway, as it existed in the Bellinger Valley prior to 1991, was the result of an earlier scheme. Any value which it gave to the land taken was not caused by the carrying out, or the proposal to carry out, either the Raleigh Deviation or its extension northwards to Perry’s Hill.
…
66 The resumption of land in the middle of a substantial extension to an existing railway or highway will be for the public purpose of that scheme or project as a whole, and not just for whatever part of it is to be constructed on that land.”
[44]Also in Perry, Hodgson JA, who generally agreed with the reasoning of Handley JA, made the following observations:[33]
[33] At pages 240-241.
“96 Application of the principle in Pointe Gourde Quarrying and Transport Co, Ltd v Sub-Intendent of Crown Lands [1947] AC 565, as expressed in s 56(1)(a) of the Land Acquisition (Just Terms Compensation) Act 1991, requires identification of ‘the public purpose for which the land was acquired’; and as indicated by Handley JA, this generally requires identification of the scheme for the purposes of which the acquisition was made. Then, the principle requires any variation in value caused by the carrying out or proposal to carry out this scheme to be disregarded. Raja Vyricherla Narayana Gajapatiraju v Revenue Divisional Officer, Vizagapatam [1939] AC 203 can then be reconciled with the Pointe Gourde principle on the basis that the scheme for the purposes of which the acquisition was made in the Raja case was a scheme for the provision of water to land to the south of the harbour which was being developed, and not the original scheme for the development of the harbour and adjacent land. Accordingly, compensation could be assessed on the basis of potentialities arising from the original scheme.
…
98 In Emerald Quarry Industries Pty Ltd v Commissioner of Highways (SA) (1979) 142 CLR 351, the High Court proceeded on the basis that the scheme in question was the ‘building of a freeway’; and there was no submission that the scheme should be given any narrower characterisation, or that the quarry had any potentiality of value to the acquiring authority apart from this scheme.
99 In a case such as the present, it is necessary to determine what is the public purpose for which the claimant’s land was acquired, including the appropriate level of generality at which the purpose should be identified. In this case, at the most general level, the purpose could be identified as the upgrading of the Pacific Highway between Sydney and the Queensland border; and there are other possible identifications, including the Raleigh Deviation generally, or particular versions of the Raleigh Deviation, or the extension of the Raleigh Deviation to Perry’s Hill.
100 I do not think that there are any clear rules determining how the relevant purpose or the appropriate level of generality is to be determined. Factors to be taken into account would, in my opinion, include the degree of continuity and consistency of various elements of what is proposed and done, and fairness to both the claimant and the acquiring authority. In the present case, I think it unlikely that the relevant public purpose could be a wide as the upgrading of the Pacific Highway between Sydney and the Queensland border; while on the other hand, assuming there have been a number of versions of the Perry’s Hill extension, I think it unlikely that the public purpose could be as narrow as just the last of those versions. The public purpose could be as wide as the Raleigh Deviation generally, encompassing all the variations of that project including all versions of the Perry’s Hill extension, or it could be somewhat narrower.”
[45]The observations made by the Land Appeal Court of Queensland in Ipswich City Council v Wilson[34] must be borne in mind. In that case, the joint decision of the Court observed that:
[34] [2011] QLAC 6.
“[50]In Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority, the Court said:
‘What was meant in Pointe Gourde and other cases by reference to ‘the scheme’ does not readily appear. … (I)n the context of statutory compulsory acquisition of land, a ‘scheme’ may be taken to be a broad expression derived from the promotion in the nineteenth century of bills for a special statute to permit the construction of canals, railways, dams and other complex infrastructure. The ‘scheme’ referred to the obtaining by the promoters of compulsory powers without which their proposal could not be implemented. With that background in mind, the description in Pointe Gourde of the resumption of land to assist the construction of an air force base under Lend Lease as part of a ‘scheme’, may readily be understood.’
[51] The reference in that passage to Vyricherla Narayana Gajapatiraju v Revenue Divisional Officer, Vizagapatam appears to be a reference to the following statement:
‘It must, of course, be conceded that the existence of the scheme must not be allowed to enhance the price, if by ‘scheme’ is meant the fact that compulsory powers of acquisition have been obtained for the purpose of carrying into effect a particular scheme for the profitable use of the potentiality.’
[52] The learned President referred to other statements relating to the identification of the “scheme” for the purposes of the application of the Pointe Gourde principle. One of those, taken from Wilson v Liverpool Corporation is as follows:
‘Whenever land is to be compulsorily acquired, this must be in consequence of some scheme or undertaking or project. Unless there is some scheme or undertaking or project, compulsory powers of acquisition will not arise at all, and it would, I think, be a great mistake if we tended to focus our attention on the word 'scheme' as though it had some magic of its own. It is merely synonymous with the other words to which I have referred, and the purpose of the so called Pointe Gourde rule is to prevent the acquisition of the land being at a price which is inflated by the very project or scheme which gives rise to the acquisition.’ ”
_______________
Footnotes omitted
What is the relevant scheme for the acquisition of the subject land?
[46]Both the applicant and the respondent put forward relatively simple propositions as to what they say the scheme underlying the acquisition of the subject land is in this case.
[47]The applicants contend that the scheme changed from that as set out in the 1998 Master Plan, which included an east west runway requiring the taking of some of the applicants’ land, to a different scheme requiring the whole of the applicants’ land, not due to any realignment of the proposed east west runway, but because of a new proposal to relocate the airport terminal and related commercial infrastructure from its current location to essentially the Savimaki land which was previously not earmarked for resumption.
[48]On the respondent’s part, the argument is that the scheme has not changed; simply the details relating to the placement of infrastructure within the scheme has altered and been refined over time, just as one would expect it to. In the respondent’s case, the scheme is the extension and redevelopment of the Sunshine Coast airport as a whole, and the respondent says, when viewed in this way, the taking of the applicants’ land is clearly in accordance with the long known scheme for the airport’s redevelopment.
[49]As this is such a crucial point of difference between the two parties, it is necessary to look in some detail at the submissions of both parties and their view of the relevant evidence. In this regard, Counsel for the applicants submitted as follows:[35]
[35] See submissions of applicants filed 23 December 2011.
“49.What then are the relevant conclusions to be drawn here. A new east west runway had been contemplated for many years as being possibly required to meet growing demand for air traffic into and out of the Sunshine Coast. To that end steps clearly had been taken to preserve an area of land for such a runway that included part of the Applicant’s land. No firm commitment however to that new east west runway however was made until December of 2006. The possibility of utilising the north south runway in various ways instead had remained an option. The whole of the Applicant’s land had the benefit of a planning designation that would allow it to be used for airport but not just airport purposes. The zoning extended to allowing industrial and commercial purposes associated with airport activities. The shape of the land the subject of that designation was consistent with a differentiation between that part of the land that might be required for a runway and that part which might be used for associated purposes.
50.Through until the release of the Master Plan in 2007 the designated proposed future boundary for the airport clearly showed that only about half of the land now resumed was required for the airport purposes. The plain inference is that the scheme until that time allowed for the reservation of about half of the resumed land for the purposes of the Council. The balance of the land was not required by the Council under its plans but yet still enjoyed the planning scheme benefits. Again the plain inference is that the intention was that the balance land would remain in the hands of private ownership but could be used either in conjunction with a new east west runway or in association with other expansion of the airport activities for private commercial purposes.
51.The question then is what changed and what was the nature of the change. The Council has not adduced evidence to fill the gaps between what the discovered documents show. The Applicants in these circumstances are entitled to the inferences favourable to their case which can reasonably be drawn.
52.At around the time of the Notices of Intention to Resume, but before the publication of the Master Plan, and at a time when the Council knew that it was committing to the new east west runway rather than an expanded use of the north south runway, the Council commenced to proceed with a scheme, reflected in the Master Plan released in September 2007. The documents which followed in 2010 provide the only explanation for the requirement for the take of the additional land – the Council decided to establish a scheme for air side activities over and above the new east west runway that were far more elaborate than anything previously planned for including by the provision of multi-story car parking, a retail precinct, a hotel and other as yet unspecified commercial space. For these purposes the Council required the land that had previously been planned to remain in private ownership.
53.The question as to whether this is a different scheme or merely a variation of the existing scheme is what falls for consideration by the Court.
54.If the area of the land taken changed by virtue only of a modest shift in the angle of the proposed new runway then there would be no argument available to say that it was a different scheme as opposed to a technical design different within the same scheme. Here however what is now proposed, at the expense of the Applicants, is a take which will facilitate the development of very substantial commercial activities by the Respondent Council. This has occurred in a context where for many years the objective communications by the Council, upon which third parties including the Applicants relied upon in their dealings with each other in terms of negotiations about the land, conveyed a notion that the extent of any such activities on the land would be a matter for the private owner of the land at the time.
55.The specific indicia of the scheme being a different one are:-
(a)the substantial increase (100%) of the size of the take;
(b)the entirely different nature of the activity underlying the increased take; and
(c)the many years over which very detailed representations were made to the Applicants and anyone else with an interest in the lands that the scheme would not extend to the whole of the lands taken, and that commercial activities which hitherto had been said could be undertaken by the private owners on the unresumed land would now be extinguished in favour of the Council pursuing incidental air side commercial activities.”
[50]For their part, Counsel for the respondent made the following submissions:[36]
[36] See amended submissions of respondent filed 20 September 2012.
“2.18As discussed, in assessing compensation payable in this case, it is impermissible to allow compensation to be inflated or deflated by reference to the scheme or the purpose for which the land was taken. It is therefore impermissible, as a matter law to take into account any step directly or indirectly related to the longstanding proposal to upgrade Airport including a lengthened east-west runway.
2.19That upgrading was anticipated for many years, in recognition of the Airport’s importance to the economy of the Sunshine Coast region and the growing demand for its services, particularly in terms of passenger services. The upgrading necessarily involved ongoing planning, not only in the adopted planning scheme documents themselves, but also in the specific Airport master planning documents anticipated by the planning scheme (see extracts from MP2000 in Exhibit 25 at ss3.9.2, 3.9.3 and 3.9.4). The scheme in this case has been on foot for many years. There have been numerous steps in the scheme over time which initially recognised the likelihood that the subject land (or most of it), and more, would be required for the upgrading (see for example the options shown in Exhibits 46, 47 and 48) culminating in (well prior to the relevant date of resumption) the steps inherent in:
(a)Maroochy Plan 2000 particularly:
(i)the Strategic Plan Map (Exhibit 13, Figure 6) (showing the extent of the Special Purpose Airport Designation) and also the extent of ‘Airport Affected Areas’;
(ii)the specific planning area mapping, where decisions were made to include almost all of the subject land in Precinct 4; (Exhibit 13, Figure 4)
(iii)the planning scheme provisions with respect not only to Precinct 4, but with respect to the ongoing planning to achieve the Airport redevelopment – particular reference is made to ss.3.9.2, 3.9.3 and 3.9.4 in Volume 3 of Maroochy Plan 2000 (see Exhibit 25); and
(b)The adoption in 2007 of the Airport Masterplan (see Exhibit 1, Volume 1, Tab 8, pp183-248) which, amongst other things, included a clear indication as to the extent of land by then deemed necessary to accommodate the Airport upgrading (see Exhibit 1, Volume 1, Tab B page 226). In this regard reference is particularly made to:
(i)Figure 13 in the report of Mr Perkins, Exhibit 8, which shows graphically that all of the Claimants land was required to be included within the planned boundary of the Airport by the 2007 Masterplan; and
(ii)Exhibit 21A which similarly shows not only that all of the Claimants’ land was required, but that land beyond Precinct 4 was also required to achieve the appropriate upgrading.
2.20Reasonable foresight by July 2008 would have alerted a prospective purchaser to realise that the airport runway and its essential terminal and support facilities would cover all of the land indicated as required in the 2007 Airport Masterplan referred to above. That foresight was confirmed by the subsequent adoption in 2010 of the Airport Masterplan Implementation Plan (see Exhibit 1, Volume 2, Tab C; see also Exhibit 22; and the plans from that 2010 documents tendered as Exhibits 36, 37 and 38) all of which showed important airport infrastructure extending over all of the future airport land requirements indicated in the 2007 Masterplan. All of this was a natural and probable consequence of the notion that planning for an important regional airport would take place over many years and would include regular reviews taking into account requirements to accommodate growth and the requirements of developments in aircraft technology (particularly to accommodate long haul aircraft).
2.21Accordingly, by the relevant date, the scheme to upgrade the Airport clearly included all of the subject land leaving no prospect of any argument that some land might have remained in the Claimants’ hands to be developed, privately, even for airport related purposes. It is a complete anathema to planning for such an important piece of public infrastructure to contemplate that in the co-ordinated ongoing design for a major Airport redevelopment would allow for small parcels of privately owned land to be developed independently. In any event, as was clear from the evidence of even Mr Perkins and Mr Henderson (for the claimants), any development potential of the subject land was entirely dependent upon the Airport upgrade which, as a matter of law, must be ignored.
2.22It is submitted the Court might be assisted by undertaking the following exercises:
(a) identifying the purpose (or scheme) for which the land was acquired (in this case clearly the expansion of the Airport);
(b) identifying the planning decisions as embodied in the planning scheme provisions in MP2000 and the Airport master plans specifically called up by MP2000 affecting the subject land as at the date of acquisition (ie 18 July 2008);
(c) determining whether those planning provisions related directly or even indirectly to the purpose for which the land was resumed;
(d) if the planning provisions do relate directly or indirectly to the purposes then they should be ignored and the likely planning scheme provisions and controls which would have applied to the land (having regard to its historical use, its inherent characteristics, the surrounding land uses and surrounding land use provisions and controls) should be considered; and
(e) in any event, ensuring that any potential for the development of the land arising from the very scheme or purpose underlying the acquisition (ie the airport redevelopment incorporating a longer east-west runway and some support facilities) should be ignored.
2.23The latter step is a direct application of the Pointe Gourde Principle, as applied many times in this State, to the effect that the dispossessed land owner cannot claim compensation to the extent to which the value of his land is enhanced (in terms of development prospects or otherwise) by the very scheme of which the resumption forms a part.
2.24Here, the inclusion of the land in Precinct 4 might well, at first blush, be seen to have conferred a benefit on the land (contemplating development for purposes other than agriculture) but that benefit was conferred as part of the very scheme which involved the taking of the land and needs to be ignored. Similarly, any notion that the otherwise isolated subject land might have acquired some development potential by virtue of the scheme to redevelop the Airport (for which the land was taken), bringing Airport development to the west, needs also to be ignored.”
[51]It should be immediately noted that the applicants’ Counsel in their submissions, seek that certain inferences be drawn, applying the rule in Jones v Dunkel.[37] The rule in Jones v Dunkel was discussed by the High Court in the case of Kuhl v Zurich Financial Services Australia Ltd[38] Justices Heydon, Crennan and Bell had this to say at paragraph 63 of their joint judgment:
[185]The Land Appeal Court in Department of Natural Resources and Mines v QNI Metals Pty Ltd & Anor[156] considered the use that the Court could put to valuation evidence simply tendered to the Court and not supported by oral evidence. The Land Appeal Court noted that:[157]
“… valuations of this nature will rarely be any assistance to the Court in determining the unimproved value of land pursuant to the Valuation of Land Act, unless the valuers who wrote the reports are called to give evidence in support of the valuations.”
[156] (2002) 23 QLCR 261.
[157] At 267.
[186]In the peculiar circumstances of this case, given my analysis of the evidence of both valuers called to give evidence, and in light of my views relative to the offer made by the respondent to the applicants to purchase the subject land and the valuation report that underlined that offer, I consider that this case falls within those rare exceptions where a valuation report can be of some assistance to the Court even where the author of that report was not called to give evidence.
[187]I must stress that I have not rejected all of the sales evidence of Mr Henderson and Mr Slater. Some limited use can be made of some of those sales consistent with my findings, although as I have indicated the conclusions of the respective valuers both have weaknesses. In short, as indicated, I consider Mr Henderson’s rate per hectare of $125,000 to be too high, and Mr Slater’s rate per hectare of $75,000 to be too low. It is a strange quirk of fact that the mid point between these two valuations is in fact identical to the valuation of $100,000 per hectare as set out in the valuation of 17 October 2006 as contained in exhibit 4.
[188]Looked at as a whole, I do not believe that a valuation at the mid point of Mr Slater’s valuation and Mr Henderson’s valuation is exactly appropriate in determining the value of the subject land in this matter. In my view, Mr Henderson’s valuation is somewhat closer to the mark than Mr Slater’s valuation. This is because, although Mr Henderson’s valuation wrongly took into account the potential in the land that flowed from the extension of the airport, he correctly also viewed the land as capable of development for industrial and balance land sporting purposes with access via Finland Road, completely independent of what was occurring at the airport. This is closer to the situation that I have determined to be appropriate in this matter than Mr Slater’s view that the highest and best use of the land was for agricultural purposes only. Accordingly, I propose reducing the valuation per hectare as assessed by Mr Henderson by $20,000 per hectare. This results in a valuation of $105,000 per hectare, or an amount of $30,000 per hectare in excess of the valuation arrived at by Mr Slater.
[189]By way of a check method, I note that such a valuation fits comfortably with the offer made by the respondent to the applicants in 2006 based on a valuation of $100,000 per hectare. Consistent with the evidence as already discussed that there was a rising market between 2006 and 2008. Accordingly, the increased value of the property from $100,000 per hectare in 2006 to $105,000 per hectare as at the date of the resumption appears appropriate.
[190]At the determined rate of $105,000 per hectare for the subject land, the value of the land as at the date of acquisition is calculated as follows:
65.158 ha @ $105,000 per hectare = $6,841,590
To this sum of course must be added the sum of $35,000 as agreed for disbursements. As advised, the respondent has paid an advance totalling $4,930,000. When this is deducted the amount of $6,876,590, the balance payable to the applicants is $1,946,590. Of course, to this amount must be added interest, which I order to be calculated in accordance with the rates as published on the Land Court website,[158] taking into account the full amount of compensation for the value of the land of $6,876,590 as at the date of acquisition; the date that advance monies were paid; and the date that disbursements were paid.
[158] quantum of the interest is to be as agreed by the parties within 28 days of the date hereof, such agreement to be advised to the Court at that time, or, failing agreement, to be determined by the Court
[192]I will hear from the parties as to costs.
Orders
1. Compensation is determined in the sum of Six Million Eight Hundred and Seventy-Six Thousand, Five Hundred and Ninety Dollars ($6,876,590).
2. Interest is awarded on the determined compensation in accordance with the rates published on the Land Court’s website, taking into account the full amount of compensation as at the acquisition date; the date the advance was paid, and the date disbursements were paid.
3. The quantum of interest is to be as agreed by the parties within 28 days of the date hereof, such agreement to be advised to the Court at that time, or, failing agreement, to be determined by the Court.
4. Either party may make submissions as to the compensation they consider should be payable by the respondent, if any, with respect to the reserve area of 0.8119 ha within 14 days of the delivery of this decision. The other party may respond to any such submissions made within a further period of 14 days.
5. Either party may request that the issue of compensation payable with respect to the reserve land be subject to further oral submission.
P A SMITH
MEMBER OF THE LAND COURT
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